Exhibit 4.8


 


Execution Version


 


FGI HOLDING COMPANY, INC.,

as Issuer


 


FREEDOM GROUP, INC.,

as Parent


 


11.25%/11.75% Senior Pay-In-Kind Notes due 2015


 






 


INDENTURE


 


Dated as of April 7, 2010


 






 


WILMINGTON TRUST FSB,


 


as Trustee


 

















 


CROSS-REFERENCE TABLE


 


	
  TIA

  Section

  	
   

  	
  Indenture

  Section

  
	
   

  	
   

  	
   

  
	
  310(a)(1)

  	
   

  	
  7.10

  
	
  (a)(2)

  	
   

  	
  7.10

  
	
  (a)(3)

  	
   

  	
  N/A

  
	
  (a)(4)

  	
   

  	
  N/A

  
	
  (b)

  	
   

  	
  7.08;
  7.10

  
	
  (c)

  	
   

  	
  N/A

  
	
  311(a)

  	
   

  	
  7.11

  
	
  (b)

  	
   

  	
  7.11

  
	
  (c)

  	
   

  	
  N/A

  
	
  312(a)

  	
   

  	
  2.06

  
	
  (b)

  	
   

  	
  11.03

  
	
  (c)

  	
   

  	
  11.03

  
	
  313(a)

  	
   

  	
  7.06

  
	
  (b)(1)

  	
   

  	
  N/A

  
	
  (b)(2)

  	
   

  	
  7.06

  
	
  (c)

  	
   

  	
  7.06

  
	
  (d)

  	
   

  	
  4.02;
  4.09

  
	
  314(a)

  	
   

  	
  4.02;
  4.09

  
	
  (b)

  	
   

  	
  N/A

  
	
  (c)(1)

  	
   

  	
  11.04

  
	
  (c)(2)

  	
   

  	
  11.04

  
	
  (c)(3)

  	
   

  	
  N/A

  
	
  (d)

  	
   

  	
  N/A

  
	
  (e)

  	
   

  	
  11.05

  
	
  (f)

  	
   

  	
  N/A

  
	
  315(a)

  	
   

  	
  7.01

  
	
  (b)

  	
   

  	
  7.05

  
	
  (c)

  	
   

  	
  7.01

  
	
  (d)

  	
   

  	
  7.01

  
	
  (e)

  	
   

  	
  6.11

  
	
  316(a) (last
  sentence)

  	
   

  	
  11.06

  
	
  (a)(1)(A)

  	
   

  	
  6.05

  
	
  (a)(1)(B)

  	
   

  	
  6.04

  
	
  (a)(2)

  	
   

  	
  N/A

  
	
  (b)

  	
   

  	
  6.07

  
	
  317(a)(1)

  	
   

  	
  6.08

  
	
  (a)(2)

  	
   

  	
  6.09

  
	
  (b)

  	
   

  	
  2.05

  
	
  318(a)

  	
   

  	
  11.01

  



 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  
	
  ARTICLE 1

  
	
   

  
	
  DEFINITIONS AND
  INCORPORATION BY REFERENCE

  
	
   

  	
   

  	
   

  
	
  SECTION 1.01.

  	
  Definitions

  	
  1

  
	
  SECTION 1.02.

  	
  Other
  Definitions

  	
  31

  
	
  SECTION 1.03.

  	
  Incorporation
  by Reference of Trust Indenture Act

  	
  33

  
	
  SECTION 1.04.

  	
  Rules of
  Construction

  	
  34

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2

  
	
   

  
	
  THE SECURITIES

  
	
   

  	
   

  	
   

  
	
  SECTION 2.01.

  	
  Amount
  of Securities; Issuable in Series

  	
  35

  
	
  SECTION 2.02.

  	
  Form and
  Dating

  	
  36

  
	
  SECTION 2.03.

  	
  Execution
  and Authentication

  	
  36

  
	
  SECTION 2.04.

  	
  Registrar
  and Paying Agent

  	
  37

  
	
  SECTION 2.05.

  	
  Paying
  Agent to Hold Money in Trust

  	
  38

  
	
  SECTION 2.06.

  	
  Holder
  Lists

  	
  38

  
	
  SECTION 2.07.

  	
  Transfer
  and Exchange

  	
  38

  
	
  SECTION 2.08.

  	
  Replacement
  Securities

  	
  39

  
	
  SECTION 2.09.

  	
  Outstanding
  Securities

  	
  39

  
	
  SECTION 2.10.

  	
  Temporary
  Securities

  	
  40

  
	
  SECTION 2.11.

  	
  Cancellation

  	
  40

  
	
  SECTION 2.12.

  	
  Defaulted
  Interest

  	
  40

  
	
  SECTION 2.13.

  	
  CUSIP
  Numbers, ISINs, etc.

  	
  41

  
	
  SECTION 2.14.

  	
  Calculation
  of Specified Percentage of Securities

  	
  41

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3

  
	
   

  	
   

  	
   

  
	
  REDEMPTION

  
	
   

  	
   

  	
   

  
	
  SECTION 3.01.

  	
  Optional
  Redemption

  	
  41

  
	
  SECTION 3.02.

  	
  Mandatory
  Redemption

  	
  41

  
	
  SECTION 3.03.

  	
  Applicability
  of Article

  	
  41

  
	
  SECTION 3.04.

  	
  Notices
  to Trustee

  	
  41

  
	
  SECTION 3.05.

  	
  Selection
  of Securities to Be Redeemed

  	
  42

  
	
  SECTION 3.06.

  	
  Notice
  of Optional Redemption

  	
  42

  
	
  SECTION 3.07.

  	
  Notice
  of Mandatory Redemption

  	
  43

  
	
  SECTION 3.08.

  	
  Effect
  of Notice of Redemption

  	
  44

  
	
  SECTION 3.09.

  	
  Deposit
  of Redemption Price

  	
  44

  
	
  SECTION 3.10.

  	
  Securities
  Redeemed in Part

  	
  45

  



 


i

















 


	
   

  	
   

  	
  Page

  
	
   

  
	
  ARTICLE 4

  
	
   

  
	
  COVENANTS

  
	
   

  	
   

  	
   

  
	
  SECTION 4.01.

  	
  Payment
  of Securities

  	
  45

  
	
  SECTION 4.02.

  	
  Reports
  and Other Information

  	
  45

  
	
  SECTION 4.03.

  	
  Limitation on Incurrence of Indebtedness and
  Issuance of Disqualified Stock and Preferred Stock

  	
  47

  
	
  SECTION 4.04.

  	
  Limitation
  on Restricted Payments

  	
  52

  
	
  SECTION 4.05.

  	
  Dividend
  and Other Payment Restrictions Affecting Subsidiaries

  	
  58

  
	
  SECTION 4.06.

  	
  Asset
  Sales

  	
  60

  
	
  SECTION 4.07.

  	
  Transactions
  with Affiliates

  	
  63

  
	
  SECTION 4.08.

  	
  Change
  of Control

  	
  66

  
	
  SECTION 4.09.

  	
  Compliance
  Certificate

  	
  68

  
	
  SECTION 4.10.

  	
  Future
  Guarantors

  	
  68

  
	
  SECTION 4.11.

  	
  Liens

  	
  69

  
	
  SECTION 4.12.

  	
  Anti-layering

  	
  69

  
	
  SECTION 4.13.

  	
  Maintenance
  of Office or Agency

  	
  69

  
	
  SECTION 4.14.

  	
  Discharge
  and Suspension of Covenants

  	
  70

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5

  
	
   

  	
   

  	
   

  
	
  SUCCESSOR COMPANY

  
	
   

  	
   

  	
   

  
	
  SECTION 5.01.

  	
  When
  Company May Merge or Transfer Assets

  	
  71

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6

  
	
   

  	
   

  	
   

  
	
  DEFAULTS AND REMEDIES

  
	
   

  	
   

  	
   

  
	
  SECTION 6.01.

  	
  Events
  of Default

  	
  72

  
	
  SECTION 6.02.

  	
  Acceleration

  	
  74

  
	
  SECTION 6.03.

  	
  Other
  Remedies

  	
  74

  
	
  SECTION 6.04.

  	
  Waiver
  of Past Defaults

  	
  74

  
	
  SECTION 6.05.

  	
  Control
  by Majority

  	
  75

  
	
  SECTION 6.06.

  	
  Limitation
  on Suits

  	
  75

  
	
  SECTION 6.07.

  	
  Rights
  of the Holders to Receive Payment

  	
  75

  
	
  SECTION 6.08.

  	
  Collection
  Suit by Trustee

  	
  76

  
	
  SECTION 6.09.

  	
  Trustee
  May File Proofs of Claim

  	
  76

  
	
  SECTION 6.10.

  	
  Priorities

  	
  76

  
	
  SECTION 6.11.

  	
  Undertaking
  for Costs

  	
  76

  
	
  SECTION 6.12.

  	
  Waiver
  of Stay or Extension Laws

  	
  77

  



 


ii

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7

  
	
   

  	
   

  	
   

  
	
  TRUSTEE

  
	
   

  	
   

  	
   

  
	
  SECTION 7.01.

  	
  Duties
  of Trustee

  	
  77

  
	
  SECTION 7.02.

  	
  Rights
  of Trustee

  	
  78

  
	
  SECTION 7.03.

  	
  Individual
  Rights of Trustee

  	
  79

  
	
  SECTION 7.04.

  	
  Trustee’s
  Disclaimer

  	
  79

  
	
  SECTION 7.05.

  	
  Notice
  of Defaults

  	
  80

  
	
  SECTION 7.06.

  	
  Reports
  by Trustee to the Holders

  	
  80

  
	
  SECTION 7.07.

  	
  Compensation
  and Indemnity

  	
  80

  
	
  SECTION 7.08.

  	
  Replacement
  of Trustee

  	
  81

  
	
  SECTION 7.09.

  	
  Successor
  Trustee by Merger

  	
  82

  
	
  SECTION 7.10.

  	
  Eligibility;
  Disqualification

  	
  82

  
	
  SECTION 7.11.

  	
  Preferential
  Collection of Claims Against Company

  	
  82

  
	
   

  	
   

  	
   

  
	
  ARTICLE 8

  
	
   

  	
   

  	
   

  
	
  DISCHARGE OF INDENTURE;
  DEFEASANCE

  
	
   

  	
   

  	
   

  
	
  SECTION 8.01.

  	
  Discharge
  of Liability on Securities; Defeasance

  	
  83

  
	
  SECTION 8.02.

  	
  Conditions
  to Defeasance

  	
  84

  
	
  SECTION 8.03.

  	
  Application
  of Trust Money

  	
  85

  
	
  SECTION 8.04.

  	
  Repayment
  to Company

  	
  85

  
	
  SECTION 8.05.

  	
  Indemnity
  for U.S. Government Obligations

  	
  86

  
	
  SECTION 8.06.

  	
  Reinstatement

  	
  86

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9

  
	
   

  	
   

  	
   

  
	
  AMENDMENTS AND WAIVERS

  
	
   

  	
   

  	
   

  
	
  SECTION 9.01.

  	
  Without
  Consent of the Holders

  	
  86

  
	
  SECTION 9.02.

  	
  With
  Consent of the Holders

  	
  87

  
	
  SECTION 9.03.

  	
  Compliance
  with Trust Indenture Act

  	
  88

  
	
  SECTION 9.04.

  	
  Revocation
  and Effect of Consents and Waivers

  	
  88

  
	
  SECTION 9.05.

  	
  Notation
  on or Exchange of Securities

  	
  89

  
	
  SECTION 9.06.

  	
  Trustee
  to Sign Amendments

  	
  89

  
	
  SECTION 9.07.

  	
  Payment
  for Consent

  	
  89

  
	
  SECTION 9.08.

  	
  Additional
  Voting Terms; Calculation of Principal Amount

  	
  89

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10

  
	
   

  	
   

  	
   

  
	
  GUARANTEES

  
	
   

  	
   

  	
   

  
	
  SECTION 10.01.

  	
  Guarantees

  	
  89

  
	
  SECTION 10.02.

  	
  Limitation
  on Liability

  	
  92

  



 


iii

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  SECTION 10.03.

  	
  Successors
  and Assigns

  	
  93

  
	
  SECTION 10.04.

  	
  No
  Waiver

  	
  93

  
	
  SECTION 10.05.

  	
  Modification

  	
  93

  
	
  SECTION 10.06.

  	
  Execution
  of Supplemental Indenture for Future Guarantors

  	
  93

  
	
  SECTION 10.07.

  	
  Non-Impairment

  	
  93

  
	
   

  	
   

  	
   

  
	
  ARTICLE 11

  
	
   

  	
   

  	
   

  
	
  MISCELLANEOUS

  
	
   

  	
   

  	
   

  
	
  SECTION 11.01.

  	
  Trust
  Indenture Act Controls

  	
  94

  
	
  SECTION 11.02.

  	
  Notices

  	
  94

  
	
  SECTION 11.03.

  	
  Communication
  by the Holders with Other Holders

  	
  95

  
	
  SECTION 11.04.

  	
  Certificate
  and Opinion as to Conditions Precedent

  	
  95

  
	
  SECTION 11.05.

  	
  Statements
  Required in Certificate or Opinion

  	
  95

  
	
  SECTION 11.06.

  	
  When
  Securities Disregarded

  	
  95

  
	
  SECTION 11.07.

  	
  Rules by
  Trustee, Paying Agent and Registrar

  	
  96

  
	
  SECTION 11.08.

  	
  Legal
  Holidays

  	
  96

  
	
  SECTION 11.09.

  	
  Governing
  Law

  	
  96

  
	
  SECTION 11.10.

  	
  No
  Recourse Against Others

  	
  96

  
	
  SECTION 11.11.

  	
  Successors

  	
  96

  
	
  SECTION 11.12.

  	
  Multiple
  Originals

  	
  96

  
	
  SECTION 11.13.

  	
  Table
  of Contents; Headings

  	
  96

  
	
  SECTION 11.14.

  	
  Indenture
  Controls

  	
  96

  
	
  SECTION 11.15.

  	
  Severability

  	
  96

  
	
  SECTION 11.16.

  	
  Waiver
  of Jury Trial

  	
  97

  



 


 


	
  Appendix A

  	
  —

  	
  Provisions
  Relating to Initial Securities, Additional Securities and Exchange Securities

  
	
   

  
	
  EXHIBIT INDEX

  
	
   

  
	
  Exhibit A

  	
  —

  	
  Initial
  Security

  
	
  Exhibit B

  	
  —

  	
  Exchange
  Security

  
	
  Exhibit C

  	
  —

  	
  Form of
  Transferee Letter of Representation

  
	
  Exhibit D

  	
  —

  	
  Form of
  Supplemental Indenture

  



 


iv






 


 










 


INDENTURE
dated as of April 7, 2010 among FGI HOLDING COMPANY, INC., a Delaware
corporation (the “Company”), FREEDOM GROUP, INC., a Delaware corporation
(“Parent”), and WILMINGTON TRUST FSB, a federal savings bank, as trustee
(in such capacity, the “Trustee”).


 


Each
party agrees as follows for the benefit of the other parties and for the equal
and ratable benefit of the Holders of (a) $225,000,000 aggregate principal
amount of the Company’s 11.25%/11.75% Senior Pay-In-Kind Notes due October 1,
2015 (the “Original Securities”) issued on the date hereof, (b) any
Additional Securities that may be issued after the date hereof in the form of Exhibit A
(all such securities in clauses (a) and (b), together with any PIK
Payments increasing the principal amount thereof, being referred to
collectively as the “Initial Securities”) and (c) if and when
issued as provided in the Registration Rights Agreement or otherwise registered
under the Securities Act and issued, the Company’s 11.25%/11.75% Senior
Pay-In-Kind Notes due October 1, 2015 (the “Exchange Securities”
and, together with the Initial Securities, the “Securities”) issued in
the Registered Exchange Offer in exchange for any Initial Securities or
otherwise registered under the Securities Act and issued in the form of Exhibit B.  Subject to the conditions and compliance with
the covenants set forth herein, the Company may issue an unlimited aggregate
principal amount of Additional Securities.


 


ARTICLE 1


 


DEFINITIONS AND INCORPORATION BY REFERENCE


 


SECTION 1.01.               Definitions.


 


“Acquired
Indebtedness” 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 Restricted Subsidiary of such specified Person, and


 


(2)           Indebtedness
secured by a Lien encumbering any asset acquired by such specified Person,


 


in
each case, other than Indebtedness Incurred as consideration in, in
contemplation of, or to provide all or any portion of the funds or credit
support utilized to consummate, the transaction or series of related
transactions pursuant to which such Restricted Subsidiary became a Restricted
Subsidiary or was otherwise acquired by such Person, or such asset was acquired
by such Person, as applicable.


 


“Additional
Interest” means all additional interest then owing pursuant to the
Registration Rights Agreement.


 


“Additional
Securities” means Securities issued from time to time under this Indenture
subsequent to the Issue Date, including PIK Notes.


 


“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” (including, with correlative meanings, the terms 


 

















 


“controlling,”
“controlled by” and “under common control with”), as used with respect to any
Person, means 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.


 


“Appendix”
means Appendix A attached hereto.


 


“Applicable
Opco Covenants” means (x) Section 4.04 of the FGI Opco Indenture
(as in effect on the Issue Date) and (y) Section 9.11 of the FGI Opco
Credit Agreement (as in effect on the Issue Date), in each case in determining
compliance with such covenants, excluding any cash or payments used by FGI Opco
in connection with the Transactions in determining as of any date the capacity
under such covenants of FGI Opco to make any distributions, dividends or other
payments to the Company.


 


“Applicable
Premium” means, with respect to any Security on any applicable redemption
date, the greater of:


 


(1)           1.0% of the
then outstanding principal amount of the Security; and


 


(2)           the excess of:


 


(a)           the present value at such redemption date of (i) the
redemption price of the Securities, at October 1, 2011 as set forth in
Paragraph 5 of the applicable Security plus (ii) all required interest
payments due on such Security through October 1, 2011 (excluding accrued
but unpaid interest), computed using a discount rate equal to the Treasury Rate
as of such redemption date plus 50 basis points; over


 


(b)           the then outstanding principal amount of the
Security.


 


“Asset
Sale” means:


 


(1)           the sale,
conveyance, transfer or other disposition (whether in a single transaction or a
series of related transactions) of property or assets (including by way of a
Sale/Leaseback Transaction) of the Company or any Restricted Subsidiary of the
Company (each referred to in this definition as a “disposition”) or


 


(2)           the issuance or
sale of Equity Interests (other than directors’ qualifying shares or shares or
interests required to be held by foreign nationals or other third parties to
the extent required by applicable law) of any Restricted Subsidiary (other than
to the Company or another Restricted Subsidiary of the Company) (whether in a
single transaction or a series of related transactions), in each case other
than:


 


(a)           a disposition of Cash Equivalents or Investment
Grade Securities or obsolete or worn out equipment in the ordinary course of
business;


 


2

















 


(b)           the disposition of all or substantially all of the
assets of the Company in a manner permitted pursuant to Section 5.01 or
any disposition that constitutes a Change of Control;


 


(c)           any Restricted Payment or Permitted Investment that
is permitted to be made, and is made, under Section 4.04;


 


(d)           any disposition of assets or issuance or sale of Equity
Interests of any Restricted Subsidiary with an aggregate Fair Market Value of
less than $2.5 million;


 


(e)           any disposition of property or assets by a
Restricted Subsidiary of the Company to the Company or by the Company or a
Restricted Subsidiary of the Company to a Restricted Subsidiary of the Company;


 


(f)            sales of assets received by the Company or any of
its Restricted Subsidiaries upon the foreclosure on a Lien;


 


(g)           any sale of Equity Interests in, or Indebtedness or
other securities of, an Unrestricted Subsidiary;


 


(h)           sales of inventory in the ordinary course of
business;


 


(i)            the lease, assignment or sublease of any real or
personal property in the ordinary course of business and consistent with past
practice;


 


(j)            a sale of accounts receivable and related assets of
the type specified in the definition of “Receivables Financing” to a
Receivables Subsidiary in a Qualified Receivables Financing or in factoring or
similar transactions;


 


(k)           a transfer of accounts receivable and related assets
of the type specified in the definition of “Receivables Financing” (or a
fractional undivided interest therein) by a Receivables Subsidiary in a
Qualified Receivables Financing;


 


(l)            any exchange of assets for assets (including a
combination of assets and Cash Equivalents) related to a Similar Business of
comparable or greater market value or usefulness to the business of the Company
and its Restricted Subsidiaries as a whole, as determined in good faith by the
Company, which in the event of an exchange of assets with a Fair Market Value
in excess of (1) $5.0 million shall be evidenced by an Officers’
Certificate, and (2) $15.0 million shall be set forth in a resolution
approved in good faith by at least a majority of the Board of Directors of the
Company;


 


(m)          the grant in the ordinary course of business of any
license of patents, trademarks, know-how and any other intellectual property;
and


 


3

















 


(n)           the sale of any property in a Sale/Leaseback
Transaction within six months of the acquisition of such property.


 


“Board
of Directors” means as to any Person, the board of directors or managers,
as applicable, of such Person (or, if such Person is a partnership, the board
of directors or other governing body of the general partner of such Person) or
any duly authorized committee thereof.


 


“Borrowing
Base” means the sum of (1) 90% of the book value (calculated in
accordance with GAAP) of the accounts receivable of the Company and its
Restricted Subsidiaries, (2) 65% of the book value (calculated in
accordance with GAAP) of the inventory of the Company and its Restricted
Subsidiaries and (3) 100% of the Unrestricted Cash of the Company and its
Restricted Subsidiaries, in each case as shown on the most recent consolidated
balance sheet of the Company and its Restricted Subsidiaries.


 


“Business
Day” means a day other than a Saturday, Sunday or other day on which
banking institutions are authorized or required by law to close in New York
City.


 


“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 or membership interests
(whether general or limited); 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.


 


“Capitalized
Lease Obligation” means, at the time any determination thereof is to be
made, the amount of the liability in respect of a capital lease that would at
such time be required to be capitalized and reflected as a liability on a
balance sheet (excluding the footnotes thereto) in accordance with GAAP.


 


“Cash
Contribution Amount” means the aggregate amount of cash contributions made
to the capital of the Company described in the definition of “Contribution
Indebtedness.”


 


“Cash
Equivalents” means:


 


(1)           U.S. Dollars,
pounds sterling, euros, the national currency of any participating member state
of the European Union or, in the case of any Foreign Subsidiary that is a
Restricted Subsidiary, such local currencies held by it from time to time in
the ordinary course of business;


 


(2)           securities
issued or directly and fully guaranteed or insured by the government of the
United States or any country that is a member of the European Union or 


 


4

















 


any
agency or instrumentality thereof in each case with maturities not exceeding
two years from the date of acquisition;


 


(3)           certificates of
deposit, time deposits and eurodollar time deposits with maturities of one year
or less from the date of acquisition, bankers’ acceptances, in each case with
maturities not exceeding one year, and overnight bank deposits, in each case
with any commercial bank having capital and surplus in excess of $500 million,
or the foreign currency equivalent thereof, and whose long-term debt is rated “A”
or the equivalent thereof by Moody’s or S&P (or reasonably equivalent
ratings of another internationally recognized ratings agency);


 


(4)           repurchase
obligations 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 issued by a corporation (other than an Affiliate of the Company) rated at
least “A-1” or the equivalent thereof by Moody’s or S&P (or reasonably
equivalent ratings of another internationally recognized ratings agency) and in
each case maturing within one year after the date of acquisition;


 


(6)           readily
marketable direct obligations issued by any state of the United States of
America or any political subdivision thereof having one of the two highest
rating categories obtainable from either Moody’s or S&P (or reasonably
equivalent ratings of another internationally recognized ratings agency) in
each case with maturities not exceeding two years from the date of acquisition;


 


(7)           Indebtedness
issued by Persons (other than the Sponsor or any of its Affiliates) with a
rating of “A” or higher from S&P or “A-2” or higher from Moody’s in each
case with maturities not exceeding two years from the date of acquisition; and


 


(8)           investment
funds investing at least 95% of their assets in securities of the types
described in clauses (1) through (7) above;


 


“Cash
Interest Requirement” means, with respect to any Interest Payment Date, the
amount of Cash Interest necessary to pay cash interest at the rate of 5.875%
per annum.


 


“Change
of Control” means the occurrence of any of the following events:


 


(i)            the sale, lease or transfer, in one or a series of
related transactions, of all or substantially all the assets of the Company and
its Subsidiaries, taken as a whole, to a Person other than any of the Permitted
Holders, and other than any transaction in compliance with Section 5.01
where the Successor Company is a Wholly Owned Subsidiary of a direct or indirect
parent of the Company;


 


(ii)           the Company
becomes aware (by way of a report or any other filing pursuant to Section 13(d) of
the Exchange Act, proxy, vote, written notice or otherwise) of the acquisition
by any Person or group (within the meaning of Section 13(d)(3) or 


 


5

















 


Section 14(d)(2) of
the Exchange Act, or any successor provision), including any group acting for
the purpose of acquiring, holding or disposing of securities (within the
meaning of Rule 13d-5(b)(1) under the Exchange Act), other than any
of the Permitted Holders, in a single transaction or in a related series of
transactions, by way of merger, consolidation or other business combination or
purchase of beneficial ownership (within the meaning of Rule 13d-3 under
the Exchange Act, or any successor provision), of more than 50% of the total
voting power of the Voting Stock of the Company or any direct or indirect
parent of the Company; or


 


(iii)          the Company
ceases to beneficially own (within the meaning of Rule 13d-3 under the
Exchange Act, or any successor provision) directly 100% of the issued and
outstanding Capital Stock of FGI Opco (except to the extent FGI Opco is merged
with or into the Company in accordance with the terms of this Indenture).


 


Notwithstanding
the foregoing, no Specified Merger/Transfer Transaction shall constitute a
Change of Control.


 


“Code”
means the Internal Revenue Code of 1986, as amended.


 


“Company”
means the party named as such in the Preamble to this Indenture until a
successor replaces it and, thereafter, means the successor and, for purposes of
any provision contained herein and required by the TIA, each other obligor on
the Securities.


 


“consolidated”
means, with respect to any Person, such Person consolidated with its Restricted
Subsidiaries, and shall not include any Unrestricted Subsidiary, but the
interest of such Person in an Unrestricted Subsidiary shall be accounted for as
an Investment.


 


“Consolidated
Interest Expense” means, with respect to any Person for any period, the
sum, without duplication, of:


 


(1)           consolidated
interest expense of such Person and its Restricted Subsidiaries for such
period, to the extent such expense was deducted in computing Consolidated Net
Income (including amortization of original issue discount, the interest
component of Capitalized Lease Obligations, and net payments and receipts (if
any) pursuant to interest rate Hedging Obligations and excluding amortization
of deferred financing fees and expensing of any bridge or other financing fees,
the non-cash portion of interest expense resulting from the reduction in the
carrying value under purchase accounting of the Company’s outstanding
Indebtedness and commissions, discounts, yield and other fees and charges
(including any interest expense) related to any Receivables Financing); and


 


(2)           consolidated
capitalized interest of such Person and its Restricted Subsidiaries for such
period, whether paid or accrued;


 


less
interest income for such period;


 


provided that, for purposes of calculating
Consolidated Interest Expense, no effect shall be given to the discount and/or
premium resulting from the bifurcation of derivatives under FAS No. 133 


 


6

















 


and
related interpretations as a result of the terms of the Indebtedness to which
such Consolidated Interest Expense relates.


 


For
purposes of this definition, interest on a Capitalized Lease Obligation shall
be deemed to accrue at an interest rate reasonably determined by such Person to
be the rate of interest implicit in such Capitalized Lease Obligation in
accordance with GAAP.


 


“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; provided, however, that:


 


(1)           any net
after-tax extraordinary, nonrecurring or unusual gains or losses or income or
expenses (less all fees and expenses relating thereto), including, without
limitation, any expenses related to any reconstruction, recommissioning or
reconfiguration of fixed assets for alternate uses, any severance or relocation
expenses and fees, restructuring costs, expenses or charges related to any
Qualified Equity Issuance, Permitted Investment, acquisition or Indebtedness
permitted to be Incurred by this Indenture (in each case, whether or not
successful), shall be excluded;


 


(2)           any increase in
amortization or depreciation or any one-time non-cash charges (such as
purchased in-process research and development or capitalized manufacturing
profit in inventory) resulting from purchase accounting in connection with any
acquisition that is consummated after the Issue Date shall be excluded;


 


(3)           the Net Income
for such period shall not include the cumulative effect of a change in
accounting principles during such period;


 


(4)           any net
after-tax income or loss from discontinued operations and any net after-tax
gains or losses on disposal of discontinued operations shall be excluded;


 


(5)           any net
after-tax gains or losses (less all fees and expenses or charges relating
thereto) attributable to business dispositions or asset dispositions other than
in the ordinary course of business (as determined in good faith by the Company)
shall be excluded;


 


(6)           any net
after-tax gains or losses (less all fees and expenses or charges relating
thereto) attributable to the early extinguishment of indebtedness shall be
excluded;


 


(7)           the Net Income
for such period of any Person that is not a Subsidiary of such Person, or is an
Unrestricted 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
distributions or other payments paid in cash (or to the extent converted into
cash) to the referent Person or a Restricted Subsidiary thereof in respect of
such period;


 


(8)           solely for the
purpose of determining the amount available for Restricted Payments under Section 4.04(a)(3)(A),
the Net Income for such period of any Restricted Subsidiary shall be excluded
to the extent that the declaration or payment of dividends or 


 


7

















 


similar
distributions by such Restricted Subsidiary of its Net Income is not at the
date of determination permitted without any prior governmental approval (which
has not been obtained) or, directly or indirectly, by the operation of the
terms of its charter or any agreement, instrument, judgment, decree, order,
statute, rule or governmental regulation applicable to that Restricted
Subsidiary or its stockholders, unless such restrictions with respect to the
payment of dividends or similar distributions have been legally waived; provided that (x) the net loss of any
such Restricted Subsidiary shall be included therein and (y) the
Consolidated Net Income of such Person shall be increased by the amount of
dividends or other distributions or other payments actually paid in cash (or
converted into cash) by any such Restricted Subsidiary to such Person, to the
extent not already included therein;


 


(9)           an amount equal
to the amount of Tax Distributions actually made to the holders of Capital
Stock of such Person or any parent company of such Person in respect of such
period in accordance with Section 4.04(b)(viii) shall be included as
though such amounts had been paid as income taxes directly by such Person for
such period;


 


(10)         any non-cash
impairment charges or asset write-off resulting from the application of FAS
Nos. 142 and 144, and the amortization of intangibles arising pursuant to
FAS No. 141, shall be excluded;


 


(11)         any non-cash
compensation expense realized from employee benefit plans or post-employment
benefit plans, grants of stock appreciation or similar rights, stock options or
other rights to officers, directors and employees of such Person or any of its
Restricted Subsidiaries shall be excluded;


 


(12)         (a)(i) the
non-cash portion of “straight-line” rent expense shall be excluded and (ii) the
cash portion of “straight-line” rent expense which exceeds the amount expensed
in respect of such rent expense shall be included and (b) non-cash gains,
losses, income and expenses resulting from fair value accounting required by
FAS No. 133 shall be excluded;


 


(13)         unrealized
gains and losses relating to hedging transactions and mark-to-market of
Indebtedness denominated in foreign currencies resulting from the application
of FAS No. 52 shall be excluded; and


 


(14)         any (a) severance
or relocation costs or expenses, (b) one-time non-cash compensation
charges, (c) the costs and expenses after the Issue Date related to
employment of terminated employees, or (d) costs or expenses realized in
connection with or resulting from stock appreciation or similar rights, stock
options or other rights existing on the Issue Date of officers, directors and
employees, in each case of such Person or any of its Restricted Subsidiaries,
shall be excluded.


 


Notwithstanding
the foregoing, for the purpose of Section 4.04 only, there shall be
excluded from Consolidated Net Income any dividends, repayments of loans or
advances or other transfers of assets from Unrestricted Subsidiaries of the
Company or a Restricted Subsidiary 


 


8

















 


of
the Company to the extent such dividends, repayments or transfers increase the
amount of Restricted Payments permitted under Sections 4.04(a)(3)(D) and
(E).


 


“Consolidated
Non-cash Charges” means, with respect to any Person for any period, the
aggregate depreciation, amortization, impairment, compensation, rent and other
non-cash expenses of such Person and its Restricted Subsidiaries reducing
Consolidated Net Income of such Person for such period on a consolidated basis
and otherwise determined in accordance with GAAP, but excluding (i) any
such charge which consists of or requires an accrual of, or cash reserve for,
anticipated cash charges for any future period and (ii) the non-cash
impact of recording the change in fair value of any embedded derivatives under
FAS No. 133 and related interpretations as a result of the terms of any
agreement or instrument to which such Consolidated Non-cash Charges relate.


 


“Consolidated
Taxes” means, with respect to any Person and its Restricted Subsidiaries on
a consolidated basis for any period, provision for taxes based on income,
profits or capital, including, without limitation, state franchise and similar
taxes, and including an amount equal to the amount of tax distributions
actually made to the holders of Capital Stock of such Person or any direct or
indirect parent of such Person in respect of such period in accordance with Section 4.04(b)(viii) which
shall be included as though such amounts had been paid as income taxes directly
by such Person.


 


“Contingent
Obligations” means, with respect to any Person, any obligation of such
Person guaranteeing any leases, dividends or other obligations that do not
constitute Indebtedness (referred to in this definition as the “primary
obligation”) of any other Person (referred to in this definition as the “primary
obligor”) in any manner, whether directly or indirectly, including, without
limitation, any obligation of such Person, whether or not contingent:


 


(1)           to purchase any
such primary obligation or any property constituting direct or indirect
security therefor,


 


(2)           to advance or
supply funds:


 


(a)           for the purchase or payment of any such primary
obligation; or


 


(b)           to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor; or


 


(3)           to purchase
property, securities or services primarily for the purpose of assuring the
owner of any such primary obligation of the ability of the primary obligor to
make payment of such primary obligation against loss in respect thereof.


 


“Contribution
Indebtedness” means Indebtedness of the Company in an aggregate principal
amount not greater than the aggregate amount of cash contributions (other than
Excluded Contributions) made to the capital of the Company after the Issue
Date, provided that:


 


(1)           such
Contribution Indebtedness shall be Indebtedness with a Stated Maturity later
than the Stated Maturity of the Securities, and


 


9






 










 


(2)           such
Contribution Indebtedness (a) is Incurred within 210 days after the making
of such cash contributions and (b) is so designated as Contribution
Indebtedness pursuant to an Officers’ Certificate on the Incurrence date
thereof.


 


“Credit
Agreement” means (i) the FGI Opco Credit Agreement, as amended,
restated, supplemented, waived, replaced (whether or not upon termination, and
whether with the original lenders or otherwise), restructured, repaid,
refunded, refinanced or otherwise modified from time to time, including any
agreement or indenture extending the maturity thereof, refinancing, replacing
or otherwise restructuring all or any portion of the Indebtedness under such
agreement or agreements or indenture or indentures or any successor or replacement
agreement or agreements or indenture or indentures or increasing the amount
loaned or issued thereunder or altering the maturity thereof, and (ii) whether
or not the credit agreement referred to in clause (i) remains outstanding,
if designated by the Company to be included in the definition of “Credit
Agreement,” one or more (A) debt facilities or commercial paper facilities
providing for revolving credit loans, term loans, receivables financing
(including through the sale of receivables to lenders or to special purpose
entities formed to borrow from lenders against such receivables) or letters of
credit, (B) debt securities, indentures or other forms of debt financing
(including convertible or exchangeable debt instruments or bank guarantees or
bankers’ acceptances), or (C) instruments or agreements evidencing any
other Indebtedness, in each case, with the same or different borrowers or
issuers and, in each case, as amended, supplemented, modified, extended,
restructured, renewed, refinanced, restated, replaced or refunded in whole or
in part from time to time.


 


“Default”
means any event which is, or after notice or passage of time or both would be,
an Event of Default.


 


“Designated
Non-cash Consideration” means the Fair Market Value of non-cash consideration
received by the Company or one of its Restricted Subsidiaries in connection
with an Asset Sale that is so designated as Designated Non-cash Consideration
pursuant to an Officers’ Certificate, setting forth the basis of such
valuation, less the amount of Cash Equivalents received in connection with a
subsequent sale of such Designated Non-cash Consideration.


 


“Designated
Preferred Stock” means Preferred Stock of the Company or any direct or
indirect parent company of the Company, as applicable (other than Disqualified
Stock), that is issued for cash (other than to the Company or any of its
Subsidiaries or an employee stock ownership plan or trust established by the
Company or any of its Subsidiaries) and is so designated as Designated
Preferred Stock, pursuant to an Officers’ Certificate, on the issuance date
thereof, the cash proceeds of which are excluded from the calculation set forth
in Section 4.04(a)(3).


 


“Disqualified
Stock” means, with respect to any Person, any Capital Stock of such Person
which, by its terms (or by the terms of any security into which it is
convertible or for which it is redeemable or exchangeable), or upon the
happening of any event:


 


(1)           matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise (other
than as a result of a change of control or asset sale; provided that the relevant asset sale or
change of control provisions, taken as a whole, are no more 


 


10

















 


favorable
in any material respect to holders of such Capital Stock than the asset sale
and change of control provisions applicable to the Securities and any purchase
requirement triggered thereby may not become operative until compliance with
the asset sale and change of control provisions applicable to the Securities
(including the purchase of any Securities tendered pursuant thereto)),


 


(2)           is convertible
or exchangeable for Indebtedness or Disqualified Stock, or


 


(3)           is redeemable
at the option of the holder thereof, in whole or in part,


 


in
each case prior to 91 days after the maturity date of the Securities; provided,
however, that only the portion of Capital Stock which so matures or
is mandatorily redeemable, is so convertible or exchangeable or is so
redeemable at the option of the holder thereof prior to such date shall be
deemed to be Disqualified Stock; provided,
further, however, that if such Capital Stock is
issued to any employee or to any plan for the benefit of employees of the
Company or its Subsidiaries or by any such plan to such employees, such Capital
Stock shall not constitute Disqualified Stock solely because it may be required
to be repurchased by the Company in order to satisfy applicable statutory or
regulatory obligations or as a result of such employee’s termination, death or
disability; provided, further, that any class of Capital Stock
of such Person that by its terms authorizes such Person to satisfy its
obligations thereunder by delivery of Capital Stock that is not Disqualified
Stock shall not be deemed to be Disqualified Stock.


 


“Domestic
Subsidiary” means a Restricted Subsidiary that is not a Foreign Subsidiary.


 


“EBITDA”
means, with respect to any Person for any period, the Consolidated Net Income
of such Person for such period plus, without duplication, to the extent the
same was deducted in calculating Consolidated Net Income:


 


(1)           Consolidated
Taxes; plus


 


(2)           Consolidated
Interest Expense; plus


 


(3)           Consolidated
Non-cash Charges; plus


 


(4)           the amount of
management, monitoring, consulting and advisory fees and related expenses paid
to the Sponsor and Meritage (or any accruals relating to such fees and related
expenses) during such period to the extent otherwise permitted under Section 4.07;
plus


 


(5)           any expenses or
charges (other than Consolidated Non-cash Charges) related to any issuance of
Equity Interests, Investment, acquisition, disposition, recapitalization or the
Incurrence or repayment of Indebtedness permitted to be incurred by this
Indenture (including a refinancing thereof) (whether or not successful),
including (i) such fees, expenses or charges related to the offering of
the Securities, (ii) any amendment or other modification of the Securities
or other Indebtedness, (iii) any Additional Interest in respect of the
Securities and (iv) commissions, discounts, yield and other fees and 


 


11

















 


charges
(including any interest expense) related to any Qualified Receivables
Financing; plus


 


(6)           the amount of
loss on sale of receivables and related assets to a Receivables Subsidiary in
connection with a Qualified Receivables Financing; plus


 


(7)           [reserved]


 


(8)           (a) the
Net Income of any Person and its Restricted Subsidiaries shall be calculated
without deducting the income attributed to, or adding the loses attributed to,
the minority equity interests of third parties in any non-wholly owned
Restricted Subsidiary except to the extent of the dividends declared or paid in
respect of such period or any prior period on the shares of Capital Stock of
such Restricted Subsidiary held by such third parties and (b) any ordinary
course dividend, distributions or other payment paid in cash and received from
any Person in excess of amounts included in clause (7) pursuant to the
definition of “Consolidated Net Income” shall be included;


 


less, without duplication, non-cash items
increasing Consolidated Net Income for such period (excluding any items which
represent the reversal of any accrual of, or cash reserve for, anticipated cash
charges in any prior period).


 


“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).


 


“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the SEC promulgated thereunder.


 


“Excluded Contributions” means the net cash
proceeds, Cash Equivalents and/or Investment Grade Securities received by the
Company after the Issue Date from:


 


(1)           contributions
to its common equity capital, and


 


(2)           the sale (other
than to a Subsidiary of the Company or pursuant to any Company or Subsidiary
management equity plan or stock option plan or any other management or employee
benefit plan or agreement) of Capital Stock (other than Disqualified Stock and
Designated Preferred Stock) of the Company,


 


in
each case designated as Excluded Contributions pursuant to an Officers’
Certificate executed by an Officer of the Company, the proceeds of which are
excluded from the calculation set forth in Section 4.04(a)(3).


 


“Fair
Market Value” means, with respect to any asset or property, the price which
could be negotiated in an arm’s-length, free market transaction, for cash,
between a willing seller and a willing and able buyer, neither of whom is under
undue pressure or compulsion to complete the transaction.


 


12

















 


“FAS”
means the Statement of Financial Accounting Standards, including any
codification or renumbering of such standards or any successor or replacement
section or sections promulgated by the Financial Accounting Standards Board.


 


“FGI
Opco” means FGI Operating Company, Inc.


 


“FGI
Opco Credit Agreement” means the Loan and Security Agreement dated as of July 29,
2009, among FGI Operating Company, Inc. (as successor to Freedom Group, Inc.)
and certain of its Subsidiaries, as Borrowers, the Lenders and Issuing Banks
from time to time party thereto and Wachovia Bank, National Association, as
Agent.


 


“FGI
Opco Indenture” means the Indenture dated as of July 29, 2009, among
FGI Operating Company, Inc. (as successor to Freedom Group, Inc.), as
Issuer, the Guarantors named therein and Wilmington Trust FSB, as Trustee and
Collateral Agent, as the same may be amended and supplemented from time to
time.


 


“FGI
Opco Notes” means FGI Opco’s 101⁄4% Senior Secured Notes due 2015.


 


“Fixed
Charge Coverage Ratio” means, with respect to any Person for any period,
the ratio of EBITDA 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 or redeems any
Indebtedness (other than in the case of revolving credit borrowings or
revolving advances under any Qualified Receivables Financing, in which case
interest expense shall be computed based upon the average daily balance of such
Indebtedness during the applicable period) or issues or redeems Preferred Stock
subsequent to the commencement of the period for which the Fixed Charge
Coverage Ratio is being calculated but prior to the event for which the
calculation of the Fixed Charge Coverage Ratio is made (referred to in this
definition as the “Calculation Date”), then the Fixed Charge Coverage
Ratio shall be calculated giving pro forma effect to such Incurrence 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
period.


 


For
purposes of making the computation referred to above, Investments,
acquisitions, dispositions, mergers, consolidations and discontinued operations
(as determined in accordance with GAAP), in each case with respect to an
operating unit of a business, and operational changes, that the Company or any
of its Restricted Subsidiaries has both determined to make and made after the
Issue Date and during the four-quarter reference period or subsequent to such
reference period and on or prior to or simultaneously with the Calculation Date
(each referred to in this definition as a “pro forma event”) shall be
calculated on a pro forma basis assuming that all such Investments,
acquisitions, dispositions, mergers, consolidations, discontinued operations
and operational changes (and the change of any associated fixed charge
obligations and the change in EBITDA resulting therefrom) had occurred on the
first day of the four-quarter reference period. If since the beginning of such
period any Person that subsequently became a Restricted Subsidiary or was
merged with or into the Company or any Restricted Subsidiary since the
beginning of such period shall have made or effected any Investment,
acquisition, disposition, merger, consolidation or discontinued operation, in
each case with respect to an operating unit of a business, or operational
change that would have required adjustment pursuant to this definition, then
the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect 


 


13

















 


thereto
for such period as if such Investment, acquisition, disposition, merger, consolidation,
discontinued operation, or operational change had occurred at the beginning of
the applicable four-quarter period.


 


For
purposes of this definition, whenever pro forma effect is to be given to any
pro forma event, the pro forma calculations shall be made in good faith by a
responsible financial or accounting officer of the Company. If any Indebtedness
bears a floating rate of interest and is being given pro forma effect, the
interest on such Indebtedness shall be calculated as if the rate in effect on
the Calculation Date had been the applicable rate for the entire period (taking
into account any Hedging Obligations applicable to such Indebtedness if such
Hedging Obligation has a remaining term in excess of 12 months). Interest on a
Capitalized Lease Obligation shall be deemed to accrue at an interest rate
reasonably determined by a responsible financial or accounting officer of the
Company to be the rate of interest implicit in such Capitalized Lease
Obligation in accordance with GAAP. For purposes of making the computation
referred to above, interest on any Indebtedness under a revolving credit
facility computed on a pro forma basis shall be computed based upon the average
daily balance of such Indebtedness during the applicable period. Interest on
Indebtedness that may optionally be determined at an interest rate based upon a
factor of a prime or similar rate, a eurocurrency interbank offered rate, or
other rate, shall be deemed to have been based upon the rate actually chosen,
or, if none, then based upon such optional rate chosen as the Company may
designate. Any such pro forma calculation may include adjustments appropriate,
in the reasonable determination of the Company as set forth in an Officers’
Certificate, to reflect (1) in the case of any pro forma event, operating
expense reductions and other operating improvements or synergies reasonably
expected to result within twelve months of the date of such pro forma event and
(2) all adjustments of the type and nature used in connection with the
calculation of “Adjusted EBITDA” as set forth in footnote 5 under “Summary—Summary
Historical and Pro Forma Consolidated Financial Data” in the Offering
Memorandum to the extent such adjustments, without duplication, continue to be
applicable to such four quarter period.


 


“Fixed Charges” means, with respect to any
Person for any period, the sum of:


 


(1)           Consolidated
Interest Expense of such Person for such period, and


 


(2)           all cash
dividend payments (excluding items eliminated in consolidation) on any series
of Preferred Stock or Disqualified Stock of such Person and its Restricted
Subsidiaries.


 


“Foreign
Subsidiary” means a Restricted Subsidiary not organized or existing under
the laws of the United States of America or any state or territory thereof or the
District of Columbia and any direct or indirect subsidiary of such Restricted
Subsidiary.


 


“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 Issue Date.


 


14

















 


“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 or other
obligations.


 


“Guarantee”  means any guarantee of the obligations of
the Company under this Indenture and the Securities by any Person in accordance
with the provisions of this Indenture.


 


“Guarantor”
means, as of the Issue Date, Parent, and thereafter any Person that Incurs a
Guarantee; provided that upon the
release or discharge of such Person from its Guarantee in accordance with this
Indenture, such Person ceases to be a Guarantor.


 


“Hedging Obligations” means, with respect to
any Person, the obligations of such Person under:


 


(1)           currency
exchange, interest rate or commodity swap agreements, currency exchange,
interest rate or commodity cap agreements and currency exchange, interest rate
or commodity collar agreements; and


 


(2)           other
agreements or arrangements designed to protect such Person against fluctuations
in currency exchange, interest rates or commodity prices.


 


“Holder”
means the Person in whose name a Security is registered on the Registrar’s
books.


 


“Incur”
means issue, assume, guarantee, incur or otherwise become liable for; provided,
however, that any Indebtedness or Capital Stock of a Person existing
at the time such Person becomes a Subsidiary (whether by merger, consolidation,
acquisition or otherwise) shall be deemed to be Incurred by such Person at the
time it becomes a Subsidiary.


 


“Increased
Interest Rate Calculation” means for any interest period, the sum of (A) the
product of (x) 125 basis points and (y) the fraction, the numerator
of which is 587.5 basis points minus the amount in basis points of the per
annum rate of Cash Interest that can be paid on such Interest Payment Date, and
the denominator of which is 587.5 basis points, plus (B) 587.5 basis
points minus the amount in basis points of the per annum rate of Cash Interest
that can be paid on such Interest Payment Date. For illustrative purposes,
assuming 475 basis points of Cash Interest is available for payment in respect
of a particular Interest Payment Date, the calculation would be the sum of (A) 125
basis points x [(587.5 basis points - 475 basis points)/587.5 basis points] =
23.94 basis points, plus (B) 587.5 basis points minus 475 basis points =
112.5 basis points. Thus the sum is 136.44 basis points, which is the Increased
Interest Rate Calculation for such Interest Payment Date and which is to be
added to the PIK Interest rate of 5.875% to give a total PIK Interest rate of
7.2394% and, for purposes of this illustration, is added to the Cash Interest
rate of 4.75% for such Interest Payment Date, and results in a total interest
rate for such Interest Payment Date of 11.9894%.


 


15

















 


“Indebtedness” means, with respect to any
Person:


 


(1)           the principal
and premium (if any) of any indebtedness of such Person, whether or not
contingent, (a) in respect of borrowed money, (b) evidenced by bonds,
notes, debentures or similar instruments or letters of credit or bankers’
acceptances (or, without duplication, reimbursement agreements in respect
thereof), (c) representing the deferred and unpaid purchase price of any
property, except any such balance that constitutes a trade payable or similar
obligation to a trade creditor due within six months from the date on which it
is Incurred, in each case Incurred in the ordinary course of business, which
purchase price is due more than six months after the date of placing the
property in service or taking delivery and title thereto, (d) in respect
of Capitalized Lease Obligations, or (e) representing any Hedging
Obligations, if and to the extent that any of the foregoing indebtedness (other
than letters of credit and Hedging Obligations) would appear as a liability on
a balance sheet (excluding the footnotes thereto) of such Person prepared in
accordance with GAAP;


 


(2)           to the extent
not otherwise included, any obligation of such Person to be liable for, or to
pay, as obligor, guarantor or otherwise, on the Indebtedness of another Person
(other than by endorsement of negotiable instruments for collection in the
ordinary course of business); and


 


(3)           to the extent
not otherwise included, Indebtedness of another Person secured by a Lien on any
asset owned by such Person (whether or not such Indebtedness is assumed by such
Person); provided, however, that the amount of such
Indebtedness will be the lesser of: (a) the Fair Market Value of such
asset at such date of determination, and (b) the amount of such
Indebtedness of such other Person;


 


provided that (a) Contingent
Obligations incurred in the ordinary course of business and (b) obligations
under or in respect of Receivables Financings shall be deemed not to constitute
Indebtedness.


 


“Indenture”
means this Indenture as amended or supplemented from time to time.


 


“Independent
Financial Advisor” means an accounting, appraisal or investment banking
firm or consultant to Persons engaged in a Similar Business, in each case of
nationally recognized standing that is, in the good faith determination of the
Company, qualified to perform the task for which it has been engaged.


 


“Investment
Grade Rating” means a rating equal to or higher than Baa3 (or the
equivalent) by Moody’s and BBB- (or the equivalent) by S&P, or an
equivalent rating by any other Rating Agency.


 


“Investment Grade Securities” means:


 


(1)           securities
issued or directly and fully guaranteed or insured by the U.S. government or
any agency or instrumentality thereof (other than Cash Equivalents) and in each
case with maturities not exceeding two years from the date of acquisition,


 


16

















 


(2)           securities that
have a rating equal to or higher than Baa3 (or the equivalent) by Moody’s or
BBB- (or the equivalent) by S&P, or an equivalent rating by any other
Rating Agency,


 


(3)           investments in
any fund that invests at least 95% of its assets in investments of the type
described in clauses (1) and (2) which fund may also hold immaterial
amounts of cash pending investment and/or distribution, and


 


(4)           corresponding
instruments in countries other than the United States customarily utilized for
high quality investments and in each case with maturities not exceeding two
years from the date of acquisition.


 


“Investments”
means, with respect to any Person, all investments by such Person in other
Persons (including Affiliates) in the form of loans (including guarantees),
advances or capital contributions (excluding accounts receivable, trade credit
and advances to customers and commission, travel and similar advances to
officers, employees and consultants made in the ordinary course of business),
purchases or other acquisitions for consideration of Indebtedness, Equity
Interests or other securities issued by any other Person and investments that
are required by GAAP to be classified on the balance sheet of the Company in
the same manner as the other investments included in this definition to the
extent such transactions involve the transfer of cash or other property.  For purposes of the definition of “Unrestricted
Subsidiary” and Section 4.04:


 


(1)           “Investments”
shall include the portion (proportionate to the Company’s equity interest in
such Subsidiary) of the Fair Market Value of the net assets of a Subsidiary of
the Company at the time that such Subsidiary is designated an Unrestricted
Subsidiary; provided, however, that upon a redesignation of
such Subsidiary as a Restricted Subsidiary, the Company shall be deemed to
continue to have a permanent “Investment” in an Unrestricted Subsidiary equal
to an amount (if positive) equal to:


 


(a)           the Company’s “Investment” in such Subsidiary at the
time of such redesignation less


 


(b)           the portion (proportionate to the Company’s equity
interest in such Subsidiary) of the Fair Market Value of the net assets of such
Subsidiary at the time of such redesignation; and


 


(2)           any property
transferred to or from an Unrestricted Subsidiary shall be valued at its Fair
Market Value at the time of such transfer, in each case as determined in good
faith by the Board of Directors of the Company.


 


“Issue
Date” means April 7, 2010.


 


“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 


 


17

















 


Commercial
Code (or equivalent statutes) of any jurisdiction); provided that in no event shall an operating lease be deemed
to constitute a Lien.


 


“Meritage”
means Meritage Capital Advisors, LLC.


 


“Moody’s”
means Moody’s Investors Service, Inc. or any successor to the rating
agency business thereof.


 


“Net
Cash 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 in respect of or upon the sale or other
disposition of any Designated Non-cash Consideration received in any Asset Sale
and any cash payments received by way of deferred payment of principal pursuant
to a note or installment receivable or otherwise, but only as and when
received, but excluding the assumption by the acquiring Person of Indebtedness
relating to the disposed assets or other consideration received in any other
non-cash form), net of the direct costs relating to such Asset Sale and the
sale or disposition of such Designated Non-cash Consideration (including,
without limitation, legal, accounting and investment banking fees, and
brokerage 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 related thereto), amounts required to be applied to the repayment
of principal, premium (if any) and interest on Indebtedness required (other
than pursuant to Section 4.06(b)) to be paid as a result of such
transaction, and any deduction of appropriate amounts to be provided by the
Company as a reserve in accordance with GAAP against any liabilities associated
with the asset disposed of in such transaction and retained by the Company
after such sale or other disposition thereof, including, without limitation,
pension and other post-employment benefit liabilities and liabilities related
to environmental matters or against any indemnification obligations associated
with such transaction.


 


“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.


 


“Obligations”
means any principal, interest, penalties, fees, indemnifications,
reimbursements (including, without limitation, reimbursement obligations with
respect to letters of credit and bankers’ acceptances), damages and other
liabilities payable under the documentation governing any Indebtedness; provided that Obligations with respect to
the Securities shall not include fees or indemnifications in favor of the
Trustee and other third parties other than the Holders of the Securities.


 


“Offering
Memorandum” means the offering memorandum relating to the offering of the
Original Securities dated March 30, 2010.


 


“Officer”
means the Chairman of the Board, Chief Executive Officer, Chief Financial
Officer, President, any Executive Vice President, Senior Vice President or Vice
President, the Treasurer, the Secretary or the Assistant Secretary of the
Company, or any direct or indirect parent of the Company, as applicable.


 


18






 


 










 


“Officers’
Certificate” means a certificate signed on behalf of the Company by two
Officers of the Company or any direct or indirect parent 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 or any direct
or indirect parent of the Company, as applicable, that meets the requirements
set forth in this Indenture.


 


“Opinion
of Counsel” means a written opinion from legal counsel who is acceptable to
the Trustee.  The counsel may be an
employee of or counsel to the Company or the Trustee.


 


“Parent”
means the party named as such in the Preamble to this Indenture.


 


“Pari
Passu Indebtedness” means the Securities and any Indebtedness which ranks pari passu in right of payment to the
Securities. For the avoidance of doubt, such determination shall be made
without reference to the presence or absence of security in respect of such
Indebtedness.


 


“Permitted
Asset Swap” means the concurrent purchase and sale or exchange of Related
Business Assets or a combination of Related Business Assets and cash or Cash
Equivalents between the Company or any of its Restricted Subsidiaries and
another Person; provided, that
any cash or Cash Equivalents received must be applied in accordance with Section 4.06.


 


“Permitted
Holders” means (i) the Sponsor, (ii) any Person that has no
material assets other than the Capital Stock of the Company and, directly or
indirectly, holds or acquires 100% of the total voting power of the Voting
Stock of the Company, and of which no other Person or group (within the meaning
of Section 13(d)(3) or Section 14(d)(2) of the Exchange
Act, or any successor provision), other than any Permitted Holder specified in
clause (i) above, holds more than 50% of the total voting power of the
Voting Stock thereof, and (iii) any group (within the meaning of Section 13(d)(3) or
Section 14(d)(2) of the Exchange Act, or any successor provision) the
members of which include any Permitted Holder specified in clause (i) above
and that, directly or indirectly, hold or acquire beneficial ownership of the
Voting Stock of the Company (referred to in this definition as a “Permitted
Holder Group”), so long as (1) each member of the Permitted Holder
Group has voting rights proportional to the percentage of ownership interests
held or acquired by such member and (2) no Person or other “group” (other
than a Permitted Holder specified in clause (i) above) beneficially owns
more than 50% on a fully diluted basis of the Voting Stock held by the
Permitted Holder Group. Any person or group, together with its Affiliates,
whose acquisition of beneficial ownership constitutes a Change of Control in
respect of which a Change of Control Offer is made in accordance with the
requirements of this Indenture will thereafter constitute an additional
Permitted Holder.


 


“Permitted Investments” means:


 


(1)           any Investment
in the Company (including the Securities) or any Restricted Subsidiary;


 


(2)           any Investment
in Cash Equivalents or Investment Grade Securities;


 


19

















 


(3)           any Investment
by the Company or any Restricted Subsidiary of the Company in a Person that is
primarily engaged in a Similar Business if as a result of such Investment (a) such
Person becomes a Restricted Subsidiary of the Company, or (b) such Person,
in one transaction or a series of related transactions, is merged, consolidated
or amalgamated with or into, or transfers or conveys all or substantially all
of its assets to, or is liquidated into, the Company or a Restricted Subsidiary
of the Company;


 


(4)           any Investment
in securities or other assets not constituting Cash Equivalents and received in
connection with an Asset Sale made pursuant to Section 4.06 or any other
disposition of assets not constituting an Asset Sale;


 


(5)           any Investment (x) existing
on the Issue Date, (y) made pursuant to binding commitments in effect on
the Issue Date and (z) that replaces, refinances, refunds, renews or
extends any Investment described under either of the immediately preceding
clauses (x) or (y), provided
that any such Investment is in an amount that does not exceed the amount
replaced, refinanced, refunded, renewed or extended;


 


(6)           advances to
employees not in excess of $5 million outstanding at any one time in the
aggregate;


 


(7)           any Investment
acquired by the Company or any of its Restricted Subsidiaries (a) in
exchange for any other Investment or accounts receivable held by the Company or
any such Restricted Subsidiary in connection with or as a result of a
bankruptcy, workout, reorganization or recapitalization of the issuer of such
other Investment or accounts receivable, or (b) as a result of a
foreclosure by the Company or any of its Restricted Subsidiaries with respect
to any secured Investment or other transfer of title with respect to any
secured Investment in default;


 


(8)           Hedging
Obligations permitted under Section 4.03(b)(x);


 


(9)           any Investment
by the Company or any of its Restricted Subsidiaries in a Similar Business
(other than an Investment in an Unrestricted Subsidiary) having an aggregate
Fair Market Value, taken together with all other Investments made pursuant to
this clause (9) that are at the time outstanding, not to exceed the
greater of (x) $50 million and (y) 6% of Total Assets at the time of
such Investment (with the Fair Market Value of each Investment being measured
at the time made and without giving effect to subsequent changes in value), at
any one time outstanding; provided, however, that if any Investment pursuant
to this clause (9) is made in any Person that is not a Restricted
Subsidiary of the Company at the date of the making of such Investment and such
Person becomes a Restricted Subsidiary of the Company after such date, such
Investment shall thereafter be deemed to have been made pursuant to
clause (1) above and shall cease to have been made pursuant to this
clause (9) for so long as such Person continues to be a Restricted
Subsidiary;


 


(10)         additional
Investments by the Company or any of its Restricted Subsidiaries having an
aggregate Fair Market Value, taken together with all other Investments made
pursuant to this clause (10) that are at the time outstanding, not to
exceed the 


 


20

















 


greater
of (x) $25 million and (y) 3% of Total Assets at the time of such
Investment (with the Fair Market Value of each Investment being measured at the
time made and without giving effect to subsequent changes in value), at any one
time outstanding;


 


(11)         loans and
advances to officers, directors and employees for business-related travel
expenses, moving and relocation expenses and other similar expenses, in each
case Incurred in the ordinary course of business;


 


(12)         Investments the
payment for which consists of Equity Interests of the Company (other than
Disqualified Stock) or any direct or indirect parent company of the Company, as
applicable; provided, however, that such Equity Interests will
not increase the amount available for Restricted Payments under Section 4.04(a)(3);


 


(13)         any transaction
to the extent it constitutes an Investment that is permitted by and made in
accordance with Section 4.07(b) (except transactions described in
clauses (ii), (iv), (v) and (viii)(B) of such Section);


 


(14)         Investments
consisting of the licensing or contribution of intellectual property pursuant
to joint marketing arrangements with other Persons;


 


(15)         guarantees
issued in accordance with Sections 4.03 and 4.10;


 


(16)         any Investment
by Restricted Subsidiaries of the Company in other Restricted Subsidiaries of
the Company and Investments by Subsidiaries that are not Restricted
Subsidiaries in other Subsidiaries that are not Restricted Subsidiaries of the
Company;


 


(17)         Investments
consisting of purchases and acquisitions of inventory, supplies, materials and
equipment or purchases of contract rights or licenses or leases of intellectual
property, in each case in the ordinary course of business;


 


(18)         any Investment
in a Receivables Subsidiary or any Investment by a Receivables Subsidiary in
any other Person in connection with a Qualified Receivables Financing,
including Investments of funds held in accounts permitted or required by the
arrangements governing such Qualified Receivables Financing or any related
Indebtedness; provided, however, that any Investment in a
Receivables Subsidiary is in the form of a Purchase Money Note, contribution of
additional receivables or an equity interest;


 


(19)         Investments
resulting from the receipt of non-cash consideration in an Asset Sale received
in compliance with Section 4.06;


 


(20)         additional
Investments in joint ventures of the Company or any of its Restricted
Subsidiaries existing on the Issue Date in an aggregate amount, taken together
with all other Investments made pursuant to this clause (20) that are at
the time outstanding, not to exceed the greater of (x) $25 million and (y) 3%
of Total Assets at the time of such Investment, at any one time outstanding;
and


 


21

















 


(21)         Investments of
a Restricted Subsidiary of the Company acquired after the Issue Date or of an
entity merged into or consolidated with a Restricted Subsidiary of the Company
in a transaction that is not prohibited by Section 5.01 after the Issue
Date to the extent that such Investments were not made in contemplation of such
acquisition, merger or consolidation and were in existence on the date of such
acquisition, merger or consolidation.


 


“Permitted Liens” means with respect to any
Person:


 


(1)           pledges or
deposits by such Person under workmen’s compensation laws, unemployment
insurance laws or similar legislation, or good faith deposits in connection
with bids, tenders, contracts (other than for the payment of Indebtedness) or
leases to which such Person is a party, or deposits to secure public or
statutory obligations of such Person or deposits of cash or U.S. government
bonds to secure surety or appeal bonds to which such Person is a party, or
deposits as security for contested taxes or import duties or for the payment of
rent, in each case Incurred in the ordinary course of business;


 


(2)           Liens imposed
by law, such as carriers’, warehousemen’s and mechanics’ Liens, in each case
for sums not yet due or being contested in good faith by appropriate
proceedings or other Liens arising out of judgments or awards against such
Person with respect to which such Person shall then be proceeding with an
appeal or other proceedings for review (or which, if due and payable, are being
contested in good faith by appropriate proceedings and for which adequate
reserves are being maintained, to the extent required by GAAP and such
proceedings have the effect of preventing the forfeiture or sale of the
property or assets subject to any such Lien);


 


(3)           Liens for
taxes, assessments or other governmental charges (i) which are not yet due
or payable or (ii) which are being contested in good faith by appropriate
proceedings that have the effect of preventing the forfeiture or sale of the
property or assets subject to any such Lien and for which adequate reserves are
being maintained to the extent required by GAAP;


 


(4)           Liens in favor
of issuers of performance and surety bonds or bid bonds or with respect to
other regulatory requirements or letters of credit issued pursuant to the
request of and for the account of such Person in the ordinary course of its
business;


 


(5)           minor survey
exceptions, minor encumbrances, easements or reservations of, or rights of
others for, licenses, rights-of-way, sewers, electric lines, telegraph and
telephone lines and other similar purposes, or zoning or other restrictions as
to the use of real properties or Liens incidental to the conduct of the
business of such Person or to the ownership of its properties which were not
Incurred in connection with Indebtedness and which do not in the aggregate
materially adversely affect the value of said properties or materially impair
their use in the operation of the business of such Person;


 


(6)           (A) Liens
incurred to secure Obligations in respect of Indebtedness permitted to be
Incurred pursuant to clauses (i), (iv), (xii) or (xx) of Section 4.03(b);
provided that, in the case of
clauses (iv) and (xx), such Lien extends only to the assets and/or 


 


22

















 


Capital
Stock, the acquisition, lease, construction, repair, replacement or improvement
of which is financed thereby and any proceeds or products thereof and (B) Liens
securing the FGI Opco Notes;


 


(7)           Liens existing
on the Issue Date;


 


(8)           Liens on
assets, property or shares of stock of a Person at the time such Person becomes
a Subsidiary; provided, however, that such Liens are not created
or Incurred in connection with, or in contemplation of, such other Person
becoming such a Subsidiary; provided,
further, however, that such Liens
may not extend to any other property owned by the Company or any Restricted
Subsidiary of the Company;


 


(9)           Liens on assets
or on property at the time the Company or a Restricted Subsidiary of the
Company acquired the assets or property, including any acquisition by means of
a merger or consolidation with or into the Company or any Restricted Subsidiary
of the Company; provided, however, that such Liens are not created
or Incurred in connection with, or in contemplation of, such acquisition; provided, further,
however, that the Liens may not extend to any other assets or
property owned by the Company or any Restricted Subsidiary of the Company;


 


(10)         Liens securing
Indebtedness or other obligations of a Restricted Subsidiary owing to the
Company or another Restricted Subsidiary of the Company permitted to be
Incurred in accordance with Section 4.03;


 


(11)         Liens securing
Hedging Obligations so long as the related Indebtedness is, and is permitted to
be under this Indenture, secured by a Lien on the same property securing such
Hedging Obligations;


 


(12)         Liens on
specific items of inventory or other goods and proceeds of any Person securing
such Person’s obligations in respect of bankers’ acceptances issued or created
for the account of such Person to facilitate the purchase, shipment or storage
of such inventory or other goods;


 


(13)         leases and
subleases of real property which do not materially interfere with the ordinary
conduct of the business of the Company or any of its Restricted Subsidiaries;


 


(14)         Liens arising
from UCC financing statement filings regarding operating leases entered into by
the Company and its Restricted Subsidiaries in the ordinary course of business;


 


(15)         Liens in favor
of the Company;


 


(16)         Liens on
accounts receivable and related assets of the type specified in the definition
of “Receivables Financing” Incurred in connection with a Qualified Receivables
Financing;


 


23

















 


(17)         deposits made
in the ordinary course of business to secure liability to insurance carriers;


 


(18)         Liens on the
Equity Interests of Unrestricted Subsidiaries;


 


(19)         grants of
software and other technology licenses in the ordinary course of business;


 


(20)         judgment and
attachment Liens not giving rise to an Event of Default and notices of lis
pendens and associated rights related to litigation being contested in good
faith by appropriate proceedings and for which adequate reserves have been
made;


 


(21)         Liens arising
out of conditional sale, title retention, consignment or similar arrangements
for the sale of goods entered into in the ordinary course of business;


 


(22)         Liens incurred
to secure cash management services (and other “bank products” in connection
with the FGI Opco Credit Agreement) in the ordinary course of business;


 


(23)         Liens on
equipment of the Company or any Restricted Subsidiary granted in the ordinary
course of business to the Company’s or such Restricted Subsidiary’s client at
which such equipment is located;


 


(24)         Liens to secure
any refinancing, refunding, extension, renewal or replacement (or successive
refinancings, refundings, extensions, renewals or replacements) as a whole, or
in part, of any Indebtedness secured by any Lien referred to in the foregoing
clauses (6), (7), (8), (9), (10), (11) and (15); provided,
however, that (x) such new Lien shall be limited to all or part
of the same property that secured the original Lien (plus improvements on such
property), and (y) the Indebtedness secured by such Lien at such time is
not increased to any amount greater than the sum of (A) the outstanding
principal amount or, if greater, committed amount of the Indebtedness described
under clauses (6), (7), (8), (9), (10), (11) and (15) at the time the
original Lien became a Permitted Lien under this Indenture, and (B) an
amount necessary to pay any fees and expenses, including premiums, related to
such refinancing, refunding, extension, renewal or replacement; and


 


(25)         other Liens
securing obligations incurred in the ordinary course of business which
obligations do not exceed the greater of (x) $25 million and (y) 3%
of Total Assets, at any one time outstanding.


 


“Person”
means any individual, corporation, partnership, limited liability company,
joint venture, association, joint-stock company, trust, unincorporated
organization, government or any agency or political subdivision thereof or any
other entity.


 


“Preferred
Stock” means any Equity Interest with preferential right of payment of
dividends or upon liquidation, dissolution or winding up.


 


24

















 


“Purchase
Money Note” means a promissory note of a Receivables Subsidiary evidencing
a line of credit, which may be irrevocable, from the Company or any Subsidiary
of the Company to a Receivables Subsidiary in connection with a Qualified
Receivables Financing, which note is intended to finance that portion of the
purchase price that is not paid by cash or a contribution of equity.


 


“Qualified
Capital Stock” in any Person means a class of Capital Stock other than
Disqualified Stock.


 


“Qualified
Equity Issuance” means an underwritten public equity offering of Qualified
Capital Stock pursuant to an effective registration statement under the
Securities Act and yields gross proceeds either of the Company, or any direct
or indirect parent company of the Company, of at least $25.0 million other than
(x) any such public sale to an entity that is an Affiliate of the Company
and (y) any public offerings registered on Form S-8; provided that, in the case of an offering
or sale by a direct or indirect parent company of the Company, such parent
company contributes to the capital of the Company the portion of the net cash
proceeds of such offering or sale necessary to pay the aggregate redemption
price (plus accrued interest to the redemption date) of the Securities to be
redeemed pursuant to Section 3.02.


 


“Qualified
Equity Issuance Net Proceeds” means the aggregate cash proceeds received by
the Company in respect of any Qualified Equity Issuance, net of the direct
costs relating to such Qualified Equity Issuance (including legal, accounting,
transfer agent, printing and investment banking fees, SEC and Financial
Industry Regulatory Authority filing fees, and brokerage and sales
commissions), and any taxes paid or payable as a result thereof.


 


“Qualified Receivables Financing” means any
Receivables Financing of a Receivables Subsidiary that meets the following
conditions:


 


(1)           the Board of
Directors of the Company shall have determined in good faith that such
Qualified Receivables Financing (including financing terms, covenants,
termination events and other provisions) is in the aggregate economically fair
and reasonable to the Company and the Receivables Subsidiary,


 


(2)           all sales of
accounts receivable and related assets to the Receivables Subsidiary are made
at Fair Market Value (as determined in good faith by the Company), and


 


(3)           the financing
terms, covenants, termination events and other provisions thereof shall be
market terms (as determined in good faith by the Company) and may include
Standard Securitization Undertakings.


 


The
grant of a security interest in any accounts receivable of the Company or any
of its Restricted Subsidiaries (other than a Receivables Subsidiary) to secure
any Credit Agreement shall not be deemed a Qualified Receivables Financing.


 


“Rating
Agencies” means (1) each of Moody’s and S&P and (2) if Moody’s
or S&P ceases to rate the Securities for reasons outside of the Company’s
control, a “nationally recognized statistical rating organization” as defined
in Section 3 of the Exchange Act selected 


 


25

















 


by
the Company or any parent of the Company as a replacement agency for Moody’s or
S&P, as the case may be.


 


“Receivables
Fees” means distributions or payments made directly or by means of
discounts with respect to any participation interest issued or sold in
connection with, and other fees paid to a Person that is not a Restricted
Subsidiary in connection with, any Receivables Financing.


 


“Receivables
Financing” means any transaction or series of transactions that may be
entered into by the Company or any of its Subsidiaries pursuant to which the
Company or any of its Subsidiaries may sell, convey or otherwise transfer to (a) a
Receivables Subsidiary (in the case of a transfer by the Company or any of its
Subsidiaries), and (b) any other Person (in the case of a transfer by a
Receivables Subsidiary), or may grant a security interest in, any accounts
receivable (whether now existing or arising in the future) of the Company or
any of its Subsidiaries, and any assets related thereto including, without
limitation, all collateral securing such accounts receivable, all contracts and
all guarantees or other obligations in respect of such accounts receivable,
proceeds of such accounts receivable and other assets which are customarily
transferred or in respect of which security interests are customarily granted
in connection with asset securitization transactions involving accounts
receivable and any Hedging Obligations entered into by the Company or any such
Subsidiary in connection with such accounts receivable.


 


“Receivables
Repurchase Obligation” means any obligation of a seller of receivables in a
Qualified Receivables Financing to repurchase receivables arising as a result
of a breach of a representation, warranty or covenant or otherwise, including
as a result of a receivable or portion thereof becoming subject to any asserted
defense, dispute, off-set or counterclaim of any kind as a result of any action
taken by, any failure to take action by or any other event relating to the
seller.


 


“Receivables
Subsidiary” means a Wholly Owned Restricted Subsidiary of the Company (or
another Person formed for the purposes of engaging in a Qualified Receivables
Financing with the Company in which the Company or any Subsidiary of the
Company makes an Investment and to which the Company or any Subsidiary of the
Company transfers accounts receivable and related assets) which engages in no
activities other than in connection with the financing of accounts receivable
of the Company and its Subsidiaries, all proceeds thereof and all rights
(contractual or other), collateral and other assets relating thereto, and any
business or activities incidental or related to such business, and which is
designated by the Board of Directors of the Company (as provided below) as a
Receivables Subsidiary and:


 


(a)           no portion of
the Indebtedness or any other obligations (contingent or otherwise) of which (i) is
guaranteed by the Company or any other Subsidiary of the Company (excluding
guarantees of obligations (other than the principal of, and interest on,
Indebtedness) pursuant to Standard Securitization Undertakings), (ii) is
recourse to or obligates the Company or any other Subsidiary of the Company in
any way other than pursuant to Standard Securitization Undertakings, or (iii) subjects
any property or asset of the Company or any other Subsidiary of the Company,
directly or indirectly, contingently or otherwise, to the satisfaction thereof,
other than pursuant to Standard Securitization Undertakings,


 


26

















 


(b)           with which
neither the Company nor any other Subsidiary of the Company has any material
contract, agreement, arrangement or understanding other than on terms which the
Company reasonably believes to be no less favorable to the Company or such
Subsidiary than those that might be obtained at the time from Persons that are
not Affiliates of the Company, and


 


(c)           to which
neither the Company nor any other Subsidiary of the Company has any obligation
to maintain or preserve such entity’s financial condition or cause such entity
to achieve certain levels of operating results.


 


Any
such designation by the Board of Directors of the Company shall be evidenced to
the Trustee by filing with the Trustee a certified copy of the resolution of
the Board of Directors of the Company giving effect to such designation and an
Officers’ Certificate certifying that such designation complied with the
foregoing conditions.


 


“Related
Business Assets” means assets (other than cash or Cash Equivalents) used or
useful in a Similar Business; provided that
any assets received by the Company or a Restricted Subsidiary in exchange for
assets transferred by the Company or a Restricted Subsidiary will not be deemed
to be Related Business Assets if they consist of securities of a Person, unless
upon receipt of the securities of such Person, such Person would become a
Restricted Subsidiary.


 


“Restricted
Investment” means an Investment other than a Permitted Investment.


 


“Restricted
Subsidiary” means, with respect to any Person, any Subsidiary of such
Person other than an Unrestricted Subsidiary of such Person.  Unless otherwise indicated in this Indenture,
all references to Restricted Subsidiaries shall mean Restricted Subsidiaries of
the Company.


 


“Sale/Leaseback
Transaction” means an arrangement relating to property now owned or
hereafter acquired by the Company or a Restricted Subsidiary whereby the
Company or a Restricted Subsidiary transfers such property to a Person and the
Company or such Restricted Subsidiary leases it from such Person, other than
leases between the Company and a Restricted Subsidiary of the Company or
between Restricted Subsidiaries of the Company.


 


“S&P”
means Standard & Poor’s Ratings Services, a Standard & Poor’s
Financial Services LLC business, or any successor to the rating agency business
thereof.


 


“SEC”
means the Securities and Exchange Commission.


 


“Secured
Indebtedness” means any Indebtedness secured by a Lien.


 


“Securities
Act” means the Securities Act of 1933, as amended, and the rules and
regulations of the SEC promulgated thereunder.


 


“Significant
Subsidiary” means any Restricted Subsidiary that would be a “Significant
Subsidiary” of the Company within the meaning of Rule 1-02 under
Regulation S-X promulgated by the SEC.


 


27






 


 










 


“Similar
Business” means a business, the majority of whose revenues are derived from
the manufacture and sale of firearms, ammunition and accessories related
thereto, or the activities of the Company and its Subsidiaries as of the Issue
Date, or any business or activity that is reasonably similar thereto,
including, but not limited to, hunting, target sports and outdoor recreation,
or any business or activity directed toward law enforcement, governments and
government agencies, or a reasonable extension, development or expansion
thereof or ancillary thereto.


 


“Sponsor”
means (1) Cerberus Capital Management L.P. and (2) one or more
investment funds advised, managed or controlled by Cerberus Capital Management
L.P. and, in each case (whether individually or as a group) their Affiliates
(not including, however, any of their portfolio companies).


 


“Standard
Securitization Undertakings” means representations, warranties, covenants,
indemnities and guarantees of performance entered into by the Company or any
Subsidiary of the Company which the Company has determined in good faith to be
customary in a Receivables Financing including, without limitation, those
relating to the servicing of the assets of a Receivables Subsidiary, it being
understood that any Receivables Repurchase Obligation shall be deemed to be a
Standard Securitization Undertaking.


 


“Stated
Maturity” means, with respect to any security, the date specified in such
security as the fixed date on which the final payment of principal of such
security is due and payable, including pursuant to any mandatory redemption
provision (but excluding any provision providing for the repurchase of such
security at the option of the holder thereof upon the happening of any
contingency beyond the control of the issuer unless such contingency has
occurred).


 


“Subordinated
Indebtedness” means any Indebtedness of the Company which is by its terms
subordinated in right of payment to the Securities.


 


“Subsidiary”
means, with respect to any Person (1) any corporation, association or
other business entity (other than a partnership, joint venture or limited
liability company) 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 of determination owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of that Person or a combination
thereof, (2) any partnership, joint venture or limited liability company
of which (x) more than 50% of the capital accounts, distribution rights,
total equity and voting interests or general and limited partnership interests,
as applicable, are owned or controlled, directly or indirectly, by such Person
or one or more of the other Subsidiaries of that Person or a combination
thereof, whether in the form of membership, general, special or limited
partnership interests or otherwise, and (y) such Person or any Restricted
Subsidiary of such Person is a controlling general partner or otherwise
controls such entity and (3) any Person that is consolidated in the
consolidated financial statements of the specified Person in accordance with
GAAP.


 


“Subsidiary
Guarantor” means any Restricted Subsidiary of the Company that is a
Guarantor.


 


28

















 


“Tax
Distributions” means any distributions described in Section 4.04(b)(viii).


 


“Third
Party Sale” means the occurrence of a Change of Control described in
clause (a) or (c) under the definition thereof; provided, however,
that in each case, any such sale shall be to a third party that is not an
Affiliate of the Issuer.


 


“TIA”
means the Trust Indenture Act of 1939 (15 U.S.C. Sections 77aaa-77bbbb) as in
effect on the Issue Date.


 


“Total
Assets” means the total consolidated assets of the Company and its
Restricted Subsidiaries, as shown on the most recent consolidated balance sheet
of the Company and its Restricted Subsidiaries.


 


“Transactions”
means (a) the transfer by Parent of substantially all of its assets (other
than the capital stock of the Company) to, and the assumption of specified
liabilities and obligations of Parent by, FGI Opco, (b) the issuance of
the Original Securities, (c) dividends paid to Parent for the purposes of
redeeming, repurchasing, retiring or otherwise repaying some or all of Parent’s
Series A Preferred Stock, including accrued dividends thereon and the
liquidation value thereof, in an aggregate amount not to exceed the sum of the
net proceeds of the Original Securities, (d) consents, amendments and/or
modifications made pursuant to the Credit Agreement to permit the foregoing,
and (e) other transactions, including the payment of fees and expenses, in
connection with the foregoing.


 


“Treasury
Rate” means, as of the applicable redemption date, the yield to maturity as
of such redemption 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 such redemption 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 such redemption date to October 1,
2011; provided, however, that if the period from such
redemption date to October 1, 2011 is less than one year, the weekly
average yield on actually traded United States Treasury securities adjusted to
a constant maturity of one year will be used.


 


“Trust
Officer” means any officer within the corporate trust administration
department of the Trustee, with direct responsibility for performing the
Trustee’s duties under this Indenture and also means, with respect to a
particular corporate trust matter, any other officer of the Trustee to whom
such matter is referred because of such person’s knowledge of and familiarity
with the particular subject.


 


“Trustee”
means the party named as such in the Preamble to this Indenture until a
successor replaces it and, thereafter, means the successor.


 


“Unrestricted
Cash” means cash or Cash Equivalents of the Company and any of its
Restricted Subsidiaries that would not appear as “restricted cash” on a
consolidated balance sheet of the Company and its Restricted Subsidiaries.


 


29

















 


“Unrestricted Subsidiary” means:


 


(1)           any Subsidiary
of the Company that at the time of determination shall be designated an
Unrestricted Subsidiary by the Board of Directors of such Person in the manner
provided below; and


 


(2)           any Subsidiary
of an Unrestricted Subsidiary.


 


The
Board of Directors of the Company may designate any Subsidiary of the Company
(including any newly acquired or newly formed Subsidiary of the Company but
excluding the Company) to be an Unrestricted Subsidiary unless such Subsidiary
or any of its Subsidiaries owns any Equity Interests or Indebtedness of, or
owns or holds any Lien on any property of, the Company or any other Subsidiary
of the Company that is not a Subsidiary of the Subsidiary to be so designated; provided,
however, that the Subsidiary to be so designated and its
Subsidiaries do not at the time of designation have and do not thereafter Incur
any Indebtedness pursuant to which the lender has recourse to any of the assets
of the Company or any of its Restricted Subsidiaries; provided,
further, however, that either:


 


(a)           the Subsidiary
to be so designated has total consolidated assets of $1,000 or less; or


 


(b)           if such
Subsidiary has consolidated assets greater than $1,000, then such designation
would be permitted under Section 4.04.


 


The
Board of Directors of the Company may designate any Unrestricted Subsidiary to
be a Restricted Subsidiary; provided, however, that immediately after giving
effect to such designation:


 


(x)            (1) the
Company could Incur $1.00 of additional Indebtedness pursuant to Section 4.03(a) or
(2) the Fixed Charge Coverage Ratio for the Company and its Restricted
Subsidiaries would be greater than such ratio for the Company and its Restricted
Subsidiaries immediately prior to such designation, in each case on a pro forma
basis taking into account such designation, and


 


(y)           no Event of
Default shall have occurred and be continuing.


 


Any
such designation by the Board of Directors of the Company shall be evidenced to
the Trustee by promptly filing with the Trustee a copy of the resolution of the
Board of Directors of the Company giving effect to such designation and an
Officers’ Certificate certifying that such designation complied with the foregoing
provisions.


 


“U.S. Government Obligations” means
securities that are:


 


(1)           direct
obligations of the United States of America for the timely payment of which its
full faith and credit is pledged, or


 


30

















 


(2)           obligations of
a Person controlled or supervised by and acting as an agency or instrumentality
of the United States of America the timely payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of America,


 


which,
in each case, are not callable or redeemable at the option of the issuer
thereof, and shall also include a depository receipt issued by a bank (as
defined in Section 3(a)(2) of the Securities Act) as custodian with
respect to any such U.S. Government Obligations or a specific payment of
principal of or interest on any such U.S. Government Obligations held by such
custodian for the account of the holder of such depository receipt; provided that (except as required by law)
such custodian is not authorized to make any deduction from the amount payable
to the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligations or the specific payment
of principal of or interest on the U.S. Government Obligations evidenced by
such depository receipt.


 


“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 or
Disqualified Stock, as the case may be, at any date, the quotient obtained by
dividing (1) the sum of the products of the number of years from the date
of determination to the date of each successive scheduled principal payment of
such Indebtedness or redemption or similar payment with respect to such
Disqualified Stock multiplied by the amount of such payment, by (2) the
sum of all such payments.


 


“Wholly
Owned Restricted Subsidiary” is any Wholly Owned Subsidiary that is a
Restricted Subsidiary.


 


“Wholly
Owned Subsidiary” of any Person means a Subsidiary of such Person 100% of
the outstanding Capital Stock or other ownership interests of which (other than
directors’ qualifying shares or shares or interests required to be held by
foreign nationals or other third parties to the extent required by applicable
law) shall at the time be owned by such Person or by one or more Wholly Owned
Subsidiaries of such Person and one or more Wholly Owned Subsidiaries of such
Person.


 


SECTION 1.02.               Other
Definitions.


 


	
  Term

  	
   

  	
  Defined in

  Section

  
	
   

  	
   

  	
   

  
	
  “Agent
  Members”

  	
   

  	
  Appendix
  A

  
	
  “Affiliate
  Transaction”

  	
   

  	
  4.07(a)

  
	
  “Asset
  Sale Offer”

  	
   

  	
  4.06(b)

  
	
  “Bankruptcy
  Law”

  	
   

  	
  6.01

  
	
  “Calculation
  Date”

  	
   

  	
  Exhibit A

  
	
  “Cash
  Interest”

  	
   

  	
  Exhibit A

  
	
  “Clearstream”

  	
   

  	
  Appendix
  A

  



 


31

















 


	
  Term

  	
   

  	
  Defined in

  Section

  
	
   

  	
   

  	
   

  
	
  “Change
  of Control Offer”

  	
   

  	
  4.08(b)

  
	
  “covenant
  defeasance option”

  	
   

  	
  8.01

  
	
  “Covenant
  Suspension Event”

  	
   

  	
  4.14(a)

  
	
  “Custodian”

  	
   

  	
  6.01

  
	
  “default
  interest”

  	
   

  	
  2.12

  
	
  “Definitive
  Security”

  	
   

  	
  Appendix
  A

  
	
  “Depository”

  	
   

  	
  Appendix
  A

  
	
  “DTC”

  	
   

  	
  Exhibit A

  
	
  “Euroclear”

  	
   

  	
  Appendix
  A

  
	
  “Event
  of Default”

  	
   

  	
  6.01

  
	
  “Excess
  Proceeds”

  	
   

  	
  4.06(b)

  
	
  “Exchange
  Securities”

  	
   

  	
  Preamble

  
	
  “FGI
  Opco Stock”

  	
   

  	
  4.12

  
	
  “Global
  Securities”

  	
   

  	
  Appendix
  A

  
	
  “Global
  Securities Legend”

  	
   

  	
  Appendix
  A

  
	
  “Guaranteed
  Obligations”

  	
   

  	
  10.01(a)

  
	
  “IAI”

  	
   

  	
  Appendix
  A

  
	
  “incorporated
  provision”

  	
   

  	
  13.01

  
	
  “Initial
  Purchasers”

  	
   

  	
  Appendix
  A

  
	
  “Initial
  Securities”

  	
   

  	
  Preamble

  
	
  “Interest
  Payment Date”

  	
   

  	
  Exhibit A

  
	
  “legal
  defeasance option”

  	
   

  	
  8.01

  
	
  “Notice
  of Default”

  	
   

  	
  6.01

  
	
  “Offer
  Period”

  	
   

  	
  4.06(d)

  
	
  “Original
  Securities”

  	
   

  	
  Preamble

  
	
  “Paying
  Agent”

  	
   

  	
  2.04(a)

  
	
  “Permitted
  Debt”

  	
   

  	
  4.03(b)

  
	
  “PIK
  Interest”

  	
   

  	
  Exhibit A

  
	
  “PIK
  Notes”

  	
   

  	
  2.02

  
	
  “PIK
  Payment”

  	
   

  	
  2.02

  
	
  “protected
  purchaser”

  	
   

  	
  2.08

  
	
  “Purchase
  Agreement”

  	
   

  	
  Appendix
  A

  
	
  “QIB”

  	
   

  	
  Appendix
  A

  
	
  “Qualified
  Equity Issuance Redemption”

  	
   

  	
  3.07

  
	
  “Refinancing
  Indebtedness”

  	
   

  	
  4.03(b)(xiv)

  
	
  “Refunding
  Capital Stock

  	
   

  	
  4.04(a)(3)(A)

  
	
  “Registration
  Rights Agreement”

  	
   

  	
  Appendix
  A

  
	
  “Registered
  Exchange Offer”

  	
   

  	
  Appendix
  A

  
	
  “Registrar”

  	
   

  	
  2.04(a)

  
	
  “Regulation
  S”

  	
   

  	
  Appendix
  A

  
	
  “Regulation
  S Global Securities”

  	
   

  	
  Appendix
  A

  
	
  “Regulation
  S Securities”

  	
   

  	
  Appendix
  A

  
	
  “Restricted
  Payment”

  	
   

  	
  4.04(a)

  



 


32

















 


	
  Term

  	
   

  	
  Defined in

  Section

  
	
   

  	
   

  	
   

  
	
  “Restricted
  Period”

  	
   

  	
  Appendix
  A

  
	
  “Restricted
  Securities Legend”

  	
   

  	
  Appendix
  A

  
	
  “Reversion
  Date”

  	
   

  	
  4.14(b)

  
	
  “Rule 501”

  	
   

  	
  Appendix
  A

  
	
  “Rule 144A”

  	
   

  	
  Appendix
  A

  
	
  “Rule 144A
  Global Securities”

  	
   

  	
  Appendix
  A

  
	
  “Rule 144A
  Securities”

  	
   

  	
  Appendix
  A

  
	
  “Securities”

  	
   

  	
  Preamble

  
	
  “Securities
  Custodian”

  	
   

  	
  Appendix
  A

  
	
  “Shelf
  Registration Statement”

  	
   

  	
  Appendix
  A

  
	
  “Special
  Interest”

  	
   

  	
  Exhibit A

  
	
  “Special
  Interest Period”

  	
   

  	
  Exhibit A

  
	
  “Specified
  EBITDA Amount”

  	
   

  	
  Exhibit A

  
	
  “Specified
  Merger/Transfer Transaction”

  	
   

  	
  5.01(a)

  
	
  “Successor
  Company”

  	
   

  	
  5.01(a)(i)

  
	
  “Successor
  Guarantor”

  	
   

  	
  5.01(b)(i)

  
	
  “Suspended
  Covenants”

  	
   

  	
  4.14(a)

  
	
  “Suspension
  Period”

  	
   

  	
  4.14(b)

  
	
  “Transfer
  Restricted Definitive Securities”

  	
   

  	
  Appendix
  A

  
	
  “Transfer
  Restricted Global Securities”

  	
   

  	
  Appendix
  A

  
	
  “Unrestricted Definitive Security”

  	
   

  	
  Appendix A

  
	
  “Unrestricted
  Global Security”

  	
   

  	
  Appendix
  A

  



 


SECTION 1.03.               Incorporation
by Reference of Trust Indenture Act.  This Indenture incorporates by reference
certain provisions of the TIA.  The
following TIA terms have the following meanings:


 


“Commission”
means the SEC.


 


“indenture
securities” means the Securities and the Guarantees.


 


“indenture
security holder” means a Holder.


 


“indenture
to be qualified” means this Indenture.


 


“indenture
trustee” or “institutional trustee” means the Trustee.


 


“obligor”
on the indenture securities means the Company, the Guarantors and any other
obligor on the Securities.


 


All
other TIA terms used in this Indenture that are defined by the TIA, defined by
TIA reference to another statute or defined by SEC rule have the meanings
assigned to them by such definitions.


 


33

















 


SECTION 1.04.               Rules of
Construction.  Unless the
context otherwise requires:


 


(a)           a term has the
meaning assigned to it;


 


(b)           an accounting term not
otherwise defined has the meaning assigned to it in accordance with GAAP;


 


(c)           “or” is not
exclusive;


 


(d)           “including” means
including without limitation;


 


(e)           words in the singular
include the plural and words in the plural include the singular;


 


(f)            unsecured Indebtedness shall
not be deemed to be subordinate or junior to Secured Indebtedness merely by
virtue of its nature as unsecured Indebtedness;


 


(g)           the principal amount of any
non-interest bearing or other discount security at any date shall be the
principal amount thereof that would be shown on a balance sheet of the issuer
dated such date prepared in accordance with GAAP;


 


(h)           the principal amount of any
Preferred Stock shall be (i) the maximum liquidation value of such
Preferred Stock or (ii) the maximum mandatory redemption or mandatory
repurchase price with respect to such Preferred Stock, whichever is greater;


 


(i)            unless otherwise specified
herein, all accounting terms used herein shall be interpreted, all accounting
determinations hereunder shall be made, and all financial statements required
to be delivered hereunder shall be prepared in accordance with GAAP;


 


(j)            “$” and “U.S.
Dollars” each refer to United States dollars, or such other money of the
United States of America that at the time of payment is legal tender for
payment of public and private debts;


 


(k)           whenever in this Indenture
or in any Security there is mentioned, in any context, principal, interest or
any other amount payable under or with respect to any Securities, such mention
shall be deemed to include mention of the payment of Additional Interest,
default interest and/or Special Interest, to the extent that, in such context,
Additional Interest, default interest and/or Special Interest is, was or would
be payable in respect thereof; and


 


(l)            for any periods or dates
which the Company does not have historical financial statements available, it
shall be entitled to use and rely on the financial statements of its
predecessor, successor or consolidated Subsidiaries, as the case may be.


 


34






 


 










 


ARTICLE 2


 


THE SECURITIES


 


SECTION 2.01.               Amount of
Securities; Issuable in Series.  The aggregate principal amount of Original
Securities which may be authenticated and delivered under this Indenture on the
Issue Date is $225,000,000.  The
Securities may be issued in one or more series. 
All Securities of any one series shall be substantially identical except
as to denomination.


 


The
Company may from time to time after the Issue Date issue Additional Securities
under this Indenture in an unlimited principal amount, so long as (i) the
Incurrence of the Indebtedness represented by such Additional Securities is at
such time permitted by Section 4.03 and (ii) such Additional
Securities are issued in compliance with the other applicable provisions of
this Indenture.  With respect to any
Additional Securities issued after the Issue Date (except for PIK Notes or
Securities authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities pursuant to Sections 2.07,
2.08, 2.09, 2.10, 3.10, 4.06(g), 4.08(c) or the Appendix), there shall be (a) established
in or pursuant to a resolution of the Board of Directors of the Company and (b) (i) set
forth or determined in the manner provided in an Officers’ Certificate or (ii) established
in one or more indentures supplemental hereto, prior to the issuance of such
Additional Securities:


 


(1)           whether such Additional Securities shall be issued
as part of a new or existing series of Securities and the title of such
Additional Securities (which shall distinguish the Additional Securities of the
series from Securities of any other series);


 


(2)           the aggregate
principal amount of such Additional Securities which may be authenticated and
delivered under this Indenture;


 


(3)           the issue price
and issuance date of such Additional Securities, including the date from which
interest on such Additional Securities shall accrue;


 


(4)           if applicable,
that such Additional Securities shall be issuable in whole or in part in the
form of one or more Global Securities and, in such case, the respective
depositaries for such Global Securities, the form of any legend or legends
which shall be borne by such Global Securities in addition to or in lieu of
those set forth in Exhibit A hereto and any circumstances in
addition to or in lieu of those set forth in Section 2.2 of the Appendix
in which any such Global Security may be exchanged in whole or in part for
Additional Securities registered, or any transfer of such Global Security in
whole or in part may be registered, in the name or names of Persons other than
the depositary for such Global Security or a nominee thereof; and


 


(5)           if applicable,
that such Additional Securities that are not Transfer Restricted Definitive
Securities shall not be issued in the form of Initial Securities as set forth
in Exhibit A, but shall be issued in the form of Exchange
Securities as set forth in Exhibit B.


 


35

















 


If
any of the terms of any Additional Securities are established by action taken
pursuant to a resolution of the Board of Directors of the Company, a copy of an
appropriate record of such action shall be certified by the Secretary or any
Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Officers’ Certificate or the indenture supplemental hereto
setting forth the terms of the Additional Securities.


 


SECTION 2.02.               Form and
Dating.  Provisions relating to the
Initial Securities and the Exchange Securities are set forth in the Appendix,
which is hereby incorporated in and expressly made a part of this Indenture.
The Initial Securities (including any PIK Notes) and the Trustee’s
certificate of authentication, and any Additional Securities (if issued as
Transfer Restricted Definitive Securities) and the Trustee’s certificate of
authentication, shall each be substantially in the form of Exhibit A
hereto, which is hereby incorporated in and expressly made a part of this
Indenture.  The Exchange Securities and
the Trustee’s certificate of authentication, and any Additional Securities
issued other than as Transfer Restricted Definitive Securities and the Trustee’s
certificate of authentication, shall each be substantially in the form of Exhibit B
hereto, which is hereby incorporated in and expressly made a part of this
Indenture.  The Securities may have
notations, legends or endorsements required by law, stock exchange rule,
agreements to which the Company or any Guarantor is subject, if any, or usage (provided that any such notation, legend or
endorsement is in a form acceptable to the Company).  Each Security shall be dated the date of its
authentication.  Subject to the issuance
of PIK Notes, the Securities shall be issuable only in registered form without
interest coupons and will initially be issued in denominations of $2,000 and
any integral multiples of $1,000 in excess thereof.  On any Interest Payment Date on which the
Company pays PIK Interest (a “PIK Payment”) with respect to a Global
Security, the Trustee shall increase the principal amount of such Global
Security by an amount equal to the interest payable, rounded down to the
nearest whole dollar, for the relevant interest period on the principal amount
of such Global Security as of the relevant record date for such Interest Payment
Date, to the credit of the Holders on such record date and an adjustment shall
be made on the books and records of the Trustee with respect to such Global
Security to reflect such increase.  On
any Interest Payment Date on which the Company makes a PIK Payment by issuing
Definitive Securities (a “PIK Note”), the principal amount of any such
PIK Note issued to any Holder, for the relevant interest period as of the
relevant record date for such Interest Payment Date, shall be rounded down to
the nearest whole dollar.


 


SECTION 2.03.               Execution and
Authentication.  The Trustee
shall authenticate and make available for delivery upon a written order of the
Company signed by one Officer (a) Original Securities for original issue
on the date hereof in an aggregate principal amount of $225,000,000, (b) PIK
Notes (or shall increase the principal amount of any Global Security), (c) subject
to the terms of this Indenture, Additional Securities, in an aggregate
principal amount to be determined at the time of issuance and specified therein
and (d) the Exchange Securities for issue in a Registered Exchange Offer
pursuant to the Registration Rights Agreement for a like principal amount of
Initial Securities exchanged pursuant thereto or otherwise pursuant to an
effective registration statement under the Securities Act.  Such order shall specify the amount of the
Securities to be authenticated, the date on which the original issue of
Securities is to be authenticated and whether the Securities are to be Initial
Securities (including whether such Securities shall be PIK Notes or an increase
to the principal amount of any Global Security as a result of a PIK Payment) or
Exchange Securities.  Notwithstanding
anything to the contrary in the 


 


36

















 


Indenture
or the Appendix, any issuance of Additional Securities (other than PIK Notes)
after the Issue Date shall be in a principal amount of at least $2,000 and any
integral multiples of $1,000 in excess thereof, whether such Additional Securities
are of the same or a different series than the Original Securities.  One Officer shall sign the Securities for the
Company by manual or facsimile signature.


 


If
an Officer whose signature is on a Security no longer holds that office at the
time the Trustee authenticates the Security, the Security shall be valid
nevertheless.


 


A
Security shall not be valid until an authorized signatory of the Trustee
manually signs the certificate of authentication on the Security.  The signature shall be conclusive evidence
that the Security has been authenticated under this Indenture.


 


The
Trustee may appoint one or more authenticating agents reasonably acceptable to
the Company to authenticate the Securities. 
Any such appointment shall be evidenced by an instrument signed by a
Trust Officer, a copy of which shall be furnished to the Company.  Unless limited by the terms of such
appointment, an authenticating agent may authenticate Securities 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 any Registrar, Paying Agent or agent for service of notices and
demands.


 


SECTION 2.04.               Registrar and
Paying Agent.


 


(a)           The Company
shall maintain (i) an office or agency where Securities may be presented
for registration of transfer or for exchange (the “Registrar”) and (ii) an
office or agency in the United States where Securities may be presented for
payment (the “Paying Agent”).  The
Registrar shall keep a register of the Securities and of their transfer and
exchange.  The Company may have one or
more co-registrars and one or more additional paying agents.  The term “Registrar” includes any
co-registrars.  The term “Paying Agent”
includes the Paying Agent and any additional paying agents.  The Company initially appoints the Trustee as
(i) Registrar and Paying Agent in connection with the Securities and (ii) the
Securities Custodian with respect to the Global Securities.


 


(b)           The Company shall enter into
an appropriate agency agreement with any Registrar or Paying Agent not a party
to this Indenture, which shall incorporate the terms of the TIA.  The agreement shall implement the provisions
of this Indenture that relate to such agent. 
The Company shall notify the Trustee of the name and address of any such
agent.  If the Company fails to maintain
a Registrar or Paying Agent, the Trustee shall act as such and shall be
entitled to appropriate compensation therefor pursuant to Section 7.07.  The Company or any of its domestically
organized Wholly Owned Subsidiaries may act as Paying Agent or Registrar.


 


(c)           The Company may remove any
Registrar or Paying Agent upon written notice to such Registrar or Paying Agent
and to the Trustee; provided, however, that no such removal shall
become effective until (i) if applicable, acceptance of an appointment by
a successor as evidenced by an appropriate agreement entered into by the
Company and such successor Registrar or Paying Agent, as the case may be, and delivered
to the Trustee or (ii) notification to the Trustee that the Trustee shall
serve as Registrar or Paying Agent until the appointment of a 


 


37

















 


successor
in accordance with clause (i) above. 
The Registrar or Paying Agent may resign at any time upon written notice
to the Company and the Trustee; provided, however, that the Trustee may resign as
Paying Agent or Registrar only if the Trustee also resigns as Trustee in
accordance with Section 7.08.


 


SECTION 2.05.               Paying Agent to
Hold Money in Trust.  Prior to
10:00 a.m., New York City time, on each due date of the principal of and
Cash Interest on any Security, the Company shall deposit with each Paying Agent
(or if the Company or a Wholly Owned Subsidiary is acting as Paying Agent,
segregate and hold in trust for the benefit of the Persons entitled thereto) a
sum sufficient to pay such principal and Cash Interest when so becoming
due.  The Company shall require each Paying
Agent (other than the Trustee) to agree in writing that a Paying Agent shall
hold in trust for the benefit of Holders or the Trustee all money held by a
Paying Agent for the payment of principal of and Cash Interest on the
Securities, and shall notify the Trustee of any default by the Company in
making any such payment.  If the Company
or a Wholly Owned Subsidiary of the Company acts as Paying Agent, it shall
segregate the money held by it as Paying Agent and hold it in trust for the
benefit of the Persons entitled thereto. 
The Company at any time may require a Paying Agent to pay all money held
by it to the Trustee and to account for any funds disbursed by such Paying
Agent.  During the continuance of a
Default under this Indenture, the Trustee may require a Paying Agent to pay all
money held by it to the Trustee.  Upon
any bankruptcy or reorganization proceedings relating to the Company, the
Trustee will serve as Paying Agent.  Upon
complying with this Section 2.05, a Paying Agent shall have no further
liability for the money delivered to the Trustee.


 


SECTION 2.06.               Holder Lists.  The Trustee shall preserve in as current a
form as is reasonably practicable the most recent list available to it of the
names and addresses of Holders.  If the
Trustee is not the Registrar, the Company shall furnish, or cause the Registrar
to furnish, to the Trustee, in writing at least five Business Days before each
Interest Payment Date and at such other times as the Trustee may request in
writing, a list in such form and as of such date as the Trustee may reasonably
require of the names and addresses of Holders.


 


SECTION 2.07.               Transfer and
Exchange.  The
Securities shall be issued in registered form and shall be transferable only
upon the surrender of a Security for registration of transfer and in compliance
with the Appendix.  When a Security is
presented to the Registrar with a request to register a transfer, the Registrar
shall register the transfer as requested if its requirements therefor are met.  When Securities are presented to the
Registrar with a request to exchange them for an equal principal amount of
Securities of other denominations, the Registrar shall make the exchange as
requested if the same requirements are met. 
To permit registration of transfers and exchanges, the Company shall
execute and the Trustee shall authenticate Securities at the Registrar’s
request.  The Company may require payment
of a sum sufficient to pay all taxes, assessments or other governmental charges
in connection with any transfer or exchange pursuant to this Section 2.07.
 The Company shall not be required to
make, and the Registrar need not register, transfers or exchanges of Securities
selected for redemption (except, in the case of Securities to be redeemed in
part, the portion thereof not to be redeemed) or of any Securities for a period
of 15 days before a selection of Securities to be redeemed.


 


38

















 


Prior
to the due presentation for registration of transfer of any Security, the
Company, the Guarantors, the Trustee, each Paying Agent and the Registrar may
deem and treat the Person in whose name a Security is registered as the
absolute owner of such Security for the purpose of receiving payment of
principal of and interest, if any, on such Security and for all other purposes
whatsoever, whether or not such Security is overdue, and none of the Company,
any Guarantor, the Trustee, a Paying Agent or the Registrar shall be affected
by notice to the contrary.


 


Any
Holder of a beneficial interest in a Global Security shall, by acceptance of
such beneficial interest, agree that transfers of beneficial interests in such
Global Security may be effected only through a book-entry system maintained by (a) the
Holder of such Global Security (or its agent) or (b) any Holder of a
beneficial interest in such Global Security, and that ownership of a beneficial
interest in such Global Security shall be required to be reflected in a book
entry.


 


All
Securities issued upon any transfer or exchange pursuant to the terms of this
Indenture shall evidence the same debt and shall be entitled to the same
benefits under this Indenture as the Securities surrendered upon such transfer
or exchange.


 


SECTION 2.08.               Replacement
Securities.  If a
mutilated Security is surrendered to the Registrar or if the Holder of a
Security claims that the Security has been lost, destroyed or wrongfully taken,
the Company shall issue and the Trustee shall authenticate a replacement
Security if the requirements of Section 8-405 of the Uniform Commercial
Code are met, such that the Holder (a) satisfies the Company or the
Trustee within a reasonable time after such Holder has notice of such loss,
destruction or wrongful taking and the Registrar does not register a transfer
prior to receiving such notification, (b) makes such request to the
Company or the Trustee prior to the Security being acquired by a protected
purchaser as defined in Section 8-303 of the Uniform Commercial Code (a “protected
purchaser”) and (c) satisfies any other reasonable requirements of the
Trustee.  If required by the Trustee or
the Company, such Holder shall furnish an indemnity bond sufficient in the
judgment of (i) the Trustee to protect the Trustee or (ii) the
Company, to protect the Company, the Trustee, a Paying Agent and the Registrar,
from any loss that any of them may suffer if a Security is replaced.  The Company and the Trustee may charge the
Holder for their expenses in replacing a Security (including, without
limitation, attorneys’ fees and disbursements in replacing such Security).  In the event any such mutilated, lost,
destroyed or wrongfully taken Security has become or is about to become due and
payable, the Company in its discretion may pay such Security instead of issuing
a new Security in replacement thereof.


 


Every
replacement Security is an additional obligation of the Company.


 


The
provisions of this Section 2.08 are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, lost, destroyed or wrongfully taken Securities.


 


SECTION 2.09.               Outstanding
Securities.  Securities
outstanding at any time are all Securities authenticated by the Trustee except
for those canceled by it, those delivered to it for cancellation and those
described in this Section 2.09 as not outstanding.  Subject to 


 


39

















 


Section 11.06,
a Security does not cease to be outstanding because the Company or an Affiliate
of the Company holds the Security.


 


If
a Security is replaced pursuant to Section 2.08 (other than a mutilated
Security surrendered for replacement), it ceases to be outstanding unless the
Trustee and the Company receive proof satisfactory to them that the replaced
Security is held by a protected purchaser. 
A mutilated Security ceases to be outstanding upon surrender of such
Security and replacement thereof pursuant to Section 2.08.


 


If
a Paying Agent segregates and holds in trust, in accordance with this
Indenture, on a redemption date or maturity date money sufficient to pay all
principal and interest payable on that date with respect to the Securities (or
portions thereof) to be redeemed or maturing, as the case may be, and no Paying
Agent is prohibited from paying such money to the Holders on that date pursuant
to the terms of this Indenture, then on and after that date such Securities (or
portions thereof) cease to be outstanding and interest on them ceases to
accrue.


 


SECTION 2.10.               Temporary
Securities.  In the
event that Definitive Securities are to be issued under the terms of this
Indenture, until such Definitive Securities are ready for delivery, the Company
may prepare and the Trustee shall authenticate temporary Securities.  Temporary Securities shall be substantially
in the form of Definitive Securities but may have variations that the Company
considers appropriate for temporary Securities. 
Without unreasonable delay, the Company shall prepare and the Trustee
shall authenticate Definitive Securities and make them available for delivery in
exchange for temporary Securities upon surrender of such temporary Securities
at the office or agency of the Company, without charge to the Holder.  Until such exchange, temporary Securities
shall be entitled to the same rights, benefits and privileges as Definitive
Securities.


 


SECTION 2.11.               Cancellation.  The Company at any time may deliver
Securities to the Trustee for cancellation. 
The Registrar and each Paying Agent shall forward to the Trustee any
Securities surrendered to them for registration of transfer, exchange or
payment.  The Trustee and no one else
shall cancel all Securities surrendered for registration of transfer, exchange,
payment or cancellation and shall dispose of canceled Securities in accordance
with its customary procedures or deliver copies of canceled Securities to the
Company pursuant to written direction by an Officer of the Company.  The Company may not issue new Securities to
replace Securities it has redeemed, paid or delivered to the Trustee for
cancellation.  The Trustee shall not
authenticate Securities in place of canceled Securities other than pursuant to
the terms of this Indenture.


 


SECTION 2.12.               Defaulted
Interest.  Interest on
overdue principal and interest, if any, will accrue at a rate that is 2% higher
than the then applicable interest rate on the Securities (such interest “default
interest”).  If the Company defaults
in a payment of interest on the Securities, the Company shall pay the defaulted
interest then borne by the Securities (plus default interest on such defaulted
interest to the extent lawful), in any lawful manner.  The Company may pay the defaulted interest to
the Persons who are Holders on a subsequent special record date.  The Company shall fix or cause to be fixed
any such special record date and payment date to the reasonable satisfaction of
the Trustee and shall promptly mail or cause to be mailed to 


 


40

















 


each
affected Holder a notice that states the special record date, the payment date
and the amount of defaulted interest to be paid.


 


SECTION 2.13.               CUSIP Numbers,
ISINs, etc.  The Company
in issuing the Securities may use CUSIP numbers, ISINs and “Common Code”
numbers (if then generally in use) and, if so, the Trustee shall use CUSIP
numbers, ISINs and “Common Code” numbers in notices of redemption as a
convenience to Holders; provided, however,
that any such notice may state that no representation is made as to the
correctness of such numbers, either as printed on the Securities or as
contained in any notice of a redemption, that reliance may be placed only on
the other identification numbers printed on the Securities and that any such
redemption shall not be affected by any defect in or omission of such
numbers.  The Company shall advise the
Trustee in writing of any change in the CUSIP numbers, ISINs and “Common Code”
numbers.


 


SECTION 2.14.               Calculation of
Specified Percentage of Securities.  With respect to any matter requiring consent,
waiver, approval or other action of the Holders of a specified percentage of
the principal amount of all the Securities, such percentage shall be
calculated, on the relevant date of determination, by dividing (a) the
principal amount, as of such date of determination, of Securities (including
any PIK Notes issued in respect thereof, and any increase in the principal
amount thereof, as a result of a PIK Payment), the Holders of which have so
consented by (b) the aggregate principal amount, as of such date of
determination, of the Securities then outstanding (including any PIK Notes
issued in respect thereof, and any increase in the principal amount thereof, as
a result of a PIK Payment), in each case, as determined in accordance with this
Section 2.14, Section 2.09 and Section 11.06 of this
Indenture.  Any such calculation made
pursuant to this Section 2.14 shall be made by the Company and delivered
to the Trustee pursuant to an Officers’ Certificate.


 


ARTICLE 3


 


REDEMPTION


 


SECTION 3.01.               Optional
Redemption.  The
Securities may be redeemed, in whole, or from time to time in part, subject to
the conditions and at the redemption prices set forth in Paragraph 5 of the
form of Securities set forth in Exhibit A and Exhibit B
hereto, which are hereby incorporated by reference and made a part of this
Indenture, together with accrued and unpaid interest to, but not including, the
redemption date.


 


SECTION 3.02.               Mandatory
Redemption.  The Company
will be required to redeem the Securities as set forth in Paragraph 6 of the
form of Securities set forth in Exhibit A and Exhibit B
hereto, together with accrued and unpaid interest to, but not including, the
redemption date.


 


SECTION 3.03.               Applicability
of Article.  Redemption
of Securities at the election of the Company or otherwise, as permitted or
required by any provision of this Indenture, shall be made in accordance with such
provision and this Article 3.


 


SECTION 3.04.               Notices to
Trustee.  If the Company redeems
Securities pursuant to the redemption provisions of Paragraph 5 or Paragraph 6
of the applicable Security, it shall 


 


41

















 


notify
the Trustee in writing of (i) the Section of this Indenture and the
Securities pursuant to which the redemption shall occur, (ii) the
redemption date, (iii) the principal amount of Securities to be redeemed
and (iv) the redemption price.  The
Company shall give notice to the Trustee provided for in this paragraph at
least 40 days but not more than 60 days before a redemption date if
the redemption is pursuant to Paragraph 5 or Paragraph 6 of the applicable
Security, unless a shorter period is acceptable to the Trustee.  Such notice shall be accompanied by an
Officers’ Certificate and Opinion of Counsel from the Company to the effect
that such redemption will comply with the conditions herein.  If fewer than all the Securities are to be
redeemed, the record date relating to such redemption shall be selected by the
Company and given in writing to the Trustee, which record date shall be not
fewer than 15 days after the date of notice to the Trustee.  Any such notice may be canceled at any time
prior to notice of such redemption being sent to any Holder and shall thereby
be void and of no effect.


 


SECTION 3.05.               Selection of
Securities to Be Redeemed.  In
the case of any partial redemption, selection of the Securities for redemption
will be made by the Trustee in compliance with the requirements of the
principal national securities exchange, if any, on which such Securities are
listed, or if such Securities are not so listed, by lot or by such other method
as the Trustee shall deem fair and appropriate (and in such manner as complies
with applicable legal requirements); provided
that the Trustee shall not select Securities for redemption which would result
in a Holder of Securities with a principal amount of Securities less than the
minimum denomination to the extent practicable. The Trustee shall make the
selection from outstanding Securities not previously called for
redemption.  The Trustee may select for
redemption portions of the principal of Securities that have denominations
larger than $2,000.  Securities and
portions of them the Trustee selects shall be in amounts of $2,000 or a whole
multiple of $1,000 in excess thereof (or if a PIK Payment has been made, in
minimum denominations of $1.00 and any integral multiple of $1.00 in excess
thereof).  Provisions of this Indenture
that apply to Securities called for redemption also apply to portions of
Securities called for redemption.  The
Trustee shall notify the Company promptly of the Securities or portions of Securities
to be redeemed.


 


SECTION 3.06.               Notice of
Optional Redemption.


 


(a)           At least
30 days but not more than 60 days before a redemption date pursuant to
Paragraph 5 of the applicable Security, the Company shall mail or cause to be
mailed by first-class mail a notice of redemption to each Holder whose
Securities are to be redeemed to such Holder’s registered address or otherwise
in accordance with the procedures of the Depository.


 


Any such notice shall identify the Securities to be
redeemed and shall state:


 


(i)            the redemption date;


 


(ii)           the redemption
price and the amount of accrued interest to the redemption date;


 


(iii)          the name and
address of a Paying Agent;


 


42






 


 










 


(iv)          that Securities
called for redemption must be surrendered to a Paying Agent to collect the
redemption price, plus accrued interest;


 


(v)           if fewer than
all the outstanding Securities are to be redeemed, the certificate numbers and
principal amounts of the particular Securities to be redeemed, the aggregate
principal amount of Securities to be redeemed and the aggregate principal
amount of Securities to be outstanding after such partial redemption;


 


(vi)          that, unless
the Company defaults in making such redemption payment or any Paying Agent is
prohibited from making such payment pursuant to the terms of this Indenture,
interest on Securities (or portion thereof) called for redemption ceases to
accrue on and after the redemption date;


 


(vii)         the CUSIP number,
ISIN and/or “Common Code” number, if any, printed on the Securities being
redeemed; and


 


(viii)        that no
representation is made as to the correctness or accuracy of the CUSIP number or
ISIN and/or “Common Code” number, if any, listed in such notice or printed on
the Securities.


 


In
addition, if such redemption is subject to satisfaction of one or more
conditions precedent, such notice of redemption shall describe each such
condition, and if applicable, shall state that, in the Company’s discretion,
the redemption date may be delayed until such time as any or all such
conditions shall be satisfied, or such redemption may not occur and such notice
may be rescinded in the event that any or all such conditions shall not have
been satisfied by the stated redemption date, or by the redemption date as so
delayed.


 


(b)           At the Company’s
request, the Trustee shall give the notice of redemption in the Company’s name
and at the Company’s expense; provided,
however, that the Company has
delivered to the Trustee, at least 45 days (unless a shorter period is
acceptable to the Trustee) prior to the redemption date, an Officers’
Certificate requesting that the Trustee give such notice.  In such event, the Company shall provide the
Trustee in writing with the information required by this Section 3.06.


 


SECTION 3.07.               Notice of
Mandatory Redemption.


 


Not
later than 60 days following the receipt of the Qualified Equity Issuance Net
Proceeds from any Qualified Equity Issuance, the Company shall mail a notice of
redemption to each Holder with a copy to the Trustee (such redemption, a “Qualified
Equity Issuance Redemption”) stating:


 


(i)            that a Qualified Equity Issuance has occurred, the
amount of Qualified Equity Issuance Net Proceeds received by the Company, and
that the Company will redeem such Holder’s Securities or a portion thereof, as
set forth in Paragraph 6 of the applicable Security, at the applicable
redemption price as set in Paragraph 6 of the applicable Security, plus accrued
and unpaid interest thereon, if any, to the date of redemption 


 


43

















 


(subject to the right of Holders of record on a record date to receive
interest on the relevant Interest Payment Date);


 


(ii)           the
circumstances and relevant facts regarding such Qualified Equity Issuance, and
the maximum principal amount of Securities that may be redeemed by the Company
in the Qualified Equity Issuance Redemption;


 


(iii)          the redemption
date (which shall be no earlier than 30 days nor later than 60 days from the date
such notice is mailed); and


 


(iv)          the procedures
determined by the Company, consistent with Paragraph 6 of the applicable
Security, pursuant to which a Holder’s Securities shall be redeemed.


 


Notice
of a Qualified Equity Issuance Redemption may be delivered in advance of a
Qualified Equity Issuance, conditional upon such Qualified Equity Issuance, if
a definitive agreement is in place for the Qualified Equity Issuance at the
time of delivery of the notice of such Qualified Equity Issuance Redemption.


 


The
Company shall comply, to the extent applicable, with the requirements of Rule 14e-1
under the Exchange Act and any other applicable securities laws or regulations
in connection with the redemption of Securities pursuant to a Qualified Equity
Issuance Redemption. To the extent that the provisions of any applicable
securities laws or regulations conflict with provisions of this Indenture
applicable to a Qualified Equity Issuance Redemption, the Company shall comply
with such securities laws and regulations and shall not be deemed to have
failed to make a Qualified Equity Issuance Redemption or redeem Securities
pursuant thereto as described in this Section 3.07 or Paragraph 6 of the
applicable Security by virtue thereof.


 


SECTION 3.08.               Effect of
Notice of Redemption.  Once notice
of redemption is mailed in accordance with Section 3.06 or 3.07, as
applicable, Securities called for redemption become due and payable on the
redemption date and at the redemption price stated in the notice (except to the
extent such redemption is conditional as set forth in Section 3.06 or
3.07, as applicable).  Upon surrender to
any Paying Agent, such Securities shall be paid at the redemption price stated
in the notice, plus accrued interest to, but not including, the redemption date,
in the case of a mandatory redemption, and to, but not including, the
redemption date in the case of an optional redemption; provided,
however, that if the redemption date is after a regular record date
and on or prior to the Interest Payment Date, the accrued interest shall be
payable to the Holder of the redeemed Securities registered on the relevant
record date.  Failure to give notice or
any defect in the notice to any Holder shall not affect the validity of the
notice to any other Holder.


 


SECTION 3.09.               Deposit of
Redemption Price.  Prior to
10:00 a.m., New York City time, on the redemption date, the Company shall
deposit with the Paying Agent (or, if the Company or a Wholly Owned Subsidiary
is a Paying Agent, shall segregate and hold in trust) money sufficient to pay
the redemption price of and accrued interest on all Securities or portions
thereof to be redeemed on that date other than Securities or portions of
Securities called for redemption that have been delivered by the Company to the
Trustee for cancellation.  On and after
the redemption date, interest shall cease to accrue on Securities or portions
thereof called for redemption so long as the Company has deposited with the
Paying Agent funds sufficient to pay 


 


44

















 


the
principal of, plus accrued and unpaid interest on, the Securities to be
redeemed, unless a Paying Agent is prohibited from making such payment pursuant
to the terms of this Indenture.


 


SECTION 3.10.               Securities
Redeemed in Part.  Upon
surrender of a Security that is redeemed in part, the Company shall execute and
the Trustee shall authenticate for the Holder (at the Company’s expense) a new
Security equal in principal amount to the unredeemed portion of the Security
surrendered.


 


ARTICLE 4


 


COVENANTS


 


SECTION 4.01.               Payment of
Securities.  The Company
shall promptly pay the principal of and interest on the Securities on the dates
and in the manner provided in the Securities and in this Indenture.  An installment of principal of or Cash
Interest shall be considered paid on the date due if on such date the Trustee
or any Paying Agent holds in accordance with this Indenture money sufficient to
pay all principal and Cash Interest then due and the Trustee or any Paying
Agent, as the case may be, are not prohibited from paying such money to the
Holders on that date pursuant to the terms of this Indenture.  PIK Interest shall be considered paid on the
date due if on such date the Trustee has received (i) a written order from
the Company signed by one Officer to increase the balance of any Global
Security to reflect such PIK Interest or (ii) PIK Notes duly executed by
the Company together with a written order of the Company signed by one Officer
requesting the authentication of such PIK Notes by the Trustee.


 


The
Company shall pay default interest on overdue principal and interest to the
extent permitted by applicable law.


 


The
Company shall pay any Additional Interest due at the rate specified in the
Registration Rights Agreement.  The
Company shall pay any Special Interest due at the rate specified in the
Securities.


 


SECTION 4.02.               Reports and
Other Information. 
Notwithstanding that the Company may not be subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act, or otherwise
report on an annual and quarterly basis on forms provided for such annual and
quarterly reporting pursuant to rules and regulations promulgated by the
SEC, the Company shall file with the SEC (and provide the Trustee and Holders
with copies thereof, without cost to each Holder, within 15 days after it files
them with the SEC),


 


(a)           within 90 days
after the end of each fiscal year (or such longer period as may be permitted by
the SEC if the Company were then subject to such SEC reporting requirements as
a required filer, voluntary filer or otherwise), annual reports (which, if
permitted under applicable rules of the SEC, may be the annual report of
any direct or indirect parent of the Company so long as such report contains
reasonably detailed financial information (including a management’s discussion
and analysis of financial information) with respect to the Company and its
Subsidiaries on a stand alone basis) on Form 10-K (or any successor or
comparable form) containing the information required to be contained therein
(or required in such successor or comparable form),


 


45

















 


(b)           within 45 days after the end
of each of the first three fiscal quarters of each fiscal year (or such longer
period as may be permitted by the SEC if the Company were then subject to such
SEC reporting requirements as a required filer, voluntary filer or otherwise),
quarterly reports (which, if permitted under applicable rules of the SEC,
may be the quarterly report of any direct or indirect parent of the Company so
long as such report contains reasonably detailed financial information
(including a management’s discussion and analysis of financial information)
with respect to the Company and its Subsidiaries on a stand alone basis) on Form 10-Q
(or any successor or comparable form),


 


(c)           promptly from time to time
after the occurrence of an event required to be therein reported (and in any
event within the time period specified for filing current reports on Form 8-K
by the SEC), such other reports on Form 8-K (or any successor or
comparable form), and


 


(d)           any other information,
documents and other reports which the Company would be required to file with
the SEC if it were subject to Section 13 or 15(d) of the Exchange
Act;


 


provided, however, that the Company shall not be so obligated to file
such reports with the SEC if the SEC does not permit such filing, in which
event the Company shall put such information on its website, in addition to
providing such information to the Trustee and the Holders, in each case within
15 days after the time the Company would be required to file such
information with the SEC if it were subject to Section 13 or 15(d) of
the Exchange Act.


 


In
addition, to the extent not satisfied by the foregoing, the Company shall, for
so long as any Securities are outstanding, 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.


 


Notwithstanding
the foregoing, the Company will be deemed to have furnished such reports
referred to above to the Trustee and the Holders if it or any direct or
indirect parent of the Company has filed such reports with the SEC via the
EDGAR filing system and such reports are publicly available.


 


Notwithstanding
the foregoing, the requirement to provide the information and reports referred
to in clauses (a) and (b) above shall be deemed satisfied prior to the
commencement of the Registered Exchange Offer or the effectiveness of a Shelf
Registration Statement relating to the registration of the Securities under the
Securities Act by the filing (within the time periods specified for such
filings in the Registration Rights Agreement) with the SEC of a registration statement,
and any amendments thereto, with such financial information that satisfies
Regulation S-X under the Securities Act.


 


In the event that:


 


 (i)           the rules and
regulations of the SEC permit the Company and any direct or indirect parent
company of the Company to report at such parent entity’s level on a 


 


46

















 


consolidated basis and such parent entity of the Company is not engaged
in any business in any material respect other than incidental to its ownership,
directly or indirectly, of the Capital Stock of the Company, or


 


(ii)           any direct or
indirect parent of the Company becomes a Guarantor of the Securities,


 


such
consolidated reporting at such parent entity’s level in a manner consistent
with that described in this Section 4.02 for the Company will satisfy this
Section 4.02; provided that,
such financial information is accompanied by consolidating information that
explains in reasonable detail the differences between the information relating
to such direct or indirect parent and any of its Subsidiaries other than the
Company and its Subsidiaries, on the one hand, and the information relating to
the Company and its Subsidiaries on a stand alone basis, on the other hand.


 


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 contained therein or determinable from
information contained therein, including the Company’s compliance with any of
its covenants hereunder (as to which the Trustee is entitled to rely
exclusively (subject to Article 7) on Officers’ Certificates).


 


SECTION 4.03.               Limitation on
Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock.


 


(a)           (i) The
Company shall not, and shall not permit any of its Restricted Subsidiaries to,
directly or indirectly, Incur any Indebtedness (including Acquired
Indebtedness) or issue any shares of Disqualified Stock; and (ii) the
Company shall not permit any of its Restricted Subsidiaries to issue any shares
of Preferred Stock; provided, however, that the Company and any
Restricted Subsidiary may Incur Indebtedness (including Acquired Indebtedness)
or issue shares of Disqualified Stock and any Restricted Subsidiary may issue
shares of Preferred Stock, in each case if the Fixed Charge Coverage Ratio of
the Company for the most recently ended four full fiscal quarters for which
internal financial statements are available 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 2.00 to 1.00 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, and
the application of proceeds therefrom had occurred at the beginning of such
four-quarter period.


 


(b)           The limitations set forth in
Section 4.03(a) shall not apply to (collectively, “Permitted Debt”):


 


(i)            the Incurrence by the Company or its Restricted
Subsidiaries of Indebtedness under any Credit Agreement and the issuance and
creation of letters of credit and bankers’ acceptances thereunder (with letters
of credit and bankers’ acceptances being deemed to have a principal amount
equal to the face amount thereof) up to an aggregate principal amount not to
exceed the greater of (x) $180 million and (y) the Borrowing Base, in
each case, outstanding at any one time;


 


47

















 


(ii)           the Incurrence
by the Company of Indebtedness represented by the Initial Securities (not
including any Additional Securities other than PIK Notes), including any PIK
Payments made from time to time to pay PIK Interest in accordance with the
terms of this Indenture (and any Exchange Securities) and guarantees thereof;


 


(iii)          Indebtedness
existing on the Issue Date (other than Indebtedness described in clauses (i) and
(ii) of this Section 4.03(b)), including Indebtedness under the FGI
Opco Notes;


 


(iv)          Indebtedness
(including Capitalized Lease Obligations) Incurred by the Company or any of its
Restricted Subsidiaries to finance the purchase, lease, construction or
improvement of property (real or personal) or equipment (whether through the
direct purchase of assets or the Capital Stock of any Person owning such assets
(but no other material assets)) in an aggregate principal amount which, when
aggregated with the principal amount of all other Indebtedness then outstanding
that was Incurred pursuant to this clause (iv), does not exceed the
greater of (x) $25 million and (y) 3% of Total Assets at the time of
Incurrence, at any one time outstanding;


 


(v)           Indebtedness
Incurred by the Company or any of its Restricted Subsidiaries constituting
reimbursement obligations with respect to letters of credit and bank guarantees
issued in the ordinary course of business, including, without limitation,
letters of credit in respect of workers’ compensation claims, health,
disability or other employee benefits (whether current or former) or property,
casualty or liability insurance 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, such obligations are reimbursed within 30 days following
such drawing;


 


(vi)          Indebtedness
arising from agreements of the Company or a Restricted Subsidiary providing for
indemnification, adjustment of purchase price or similar obligations, in each
case, Incurred in connection with the disposition of any business, assets or a
Subsidiary of the Company in accordance with the terms of this Indenture, other
than guarantees of Indebtedness Incurred by any Person acquiring all or any
portion of such business, assets or Subsidiary for the purpose of financing
such acquisition;


 


(vii)         Indebtedness of
the Company to a Restricted Subsidiary; provided
that any subsequent issuance or transfer of any Capital Stock or any other
event which results in any such Restricted Subsidiary ceasing to be a
Restricted Subsidiary or any other subsequent transfer of any such Indebtedness
(except to the Company or another Restricted Subsidiary) shall be deemed, in
each case to be an Incurrence of such Indebtedness;


 


(viii)        shares of
Preferred Stock of a Restricted Subsidiary issued to the Company or another
Restricted Subsidiary; provided
that any subsequent issuance or transfer of any Capital Stock or any other
event that results in any Restricted Subsidiary that holds such shares of
Preferred Stock of another Restricted Subsidiary ceasing to be a Restricted
Subsidiary or any other subsequent transfer of any such shares of Preferred
Stock (except to the Company or another Restricted Subsidiary) shall be deemed,
in each case, to be an issuance of shares of Preferred Stock;


 


48

















 


(ix)           Indebtedness of
a Restricted Subsidiary to the Company or another Restricted Subsidiary; provided that any subsequent issuance or
transfer of any Capital Stock or any other event which results in any
Restricted Subsidiary lending such Indebtedness ceasing to be a Restricted
Subsidiary or any other subsequent transfer of any such Indebtedness (except to
the Company or another Restricted Subsidiary) shall be deemed, in each case, to
be an Incurrence of such Indebtedness;


 


(x)            Hedging
Obligations that are Incurred in the ordinary course of business (and not for
speculative purposes):  (1) for the
purpose of fixing or hedging interest rate risk with respect to any
Indebtedness that is permitted by the terms of this Indenture to be
outstanding; (2) for the purpose of fixing or hedging currency exchange
rate risk with respect to any currency exchanges; or (3) for the purpose
of fixing or hedging commodity price risk with respect to any commodity
purchases;


 


(xi)           obligations
(including reimbursement obligations with respect to letters of credit and bank
guarantees) in respect of performance, bid, appeal and surety bonds and
completion guarantees provided by the Company or any Restricted Subsidiary in
the ordinary course of business;


 


(xii)          Indebtedness or
Disqualified Stock of the Company or any Restricted Subsidiary of the Company
and Preferred Stock of any Restricted Subsidiary of the Company in an aggregate
principal amount which, when aggregated with the principal amount or
liquidation preference of all other Indebtedness, Disqualified Stock and
Preferred Stock then outstanding and Incurred pursuant to this
clause (xii), does not exceed the greater of (x) $30 million and (y) 4%
of Total Assets at the time of Incurrence, at any one time outstanding (it
being understood that any Indebtedness, Disqualified Stock or Preferred Stock
Incurred or issued under this clause (xii) shall cease to be deemed
Incurred or outstanding for purposes of this clause (xii) but shall be
deemed Incurred for purposes of Section 4.03(a) from and after the
first date on which the Company, or the Restricted Subsidiary, as the case may
be, could have Incurred or issued such Indebtedness, Disqualified Stock or
Preferred Stock under Section 4.03(a) without reliance upon this
clause (xii));


 


(xiii)         any guarantee
by the Company or a Restricted Subsidiary of Indebtedness or other obligations
of the Company or any of its Restricted Subsidiaries so long as the Incurrence
of such Indebtedness or other obligations by the Company or such Restricted
Subsidiary is permitted under the terms of this Indenture; provided that if such Indebtedness is by
its express terms subordinated in right of payment to the Securities, any such
guarantee with respect to such Indebtedness shall be subordinated in right of
payment substantially to the same extent as such Indebtedness is subordinated
to the Securities;


 


(xiv)        the Incurrence
by the Company or any of its Restricted Subsidiaries of Indebtedness or
Disqualified Stock or Preferred Stock of a Restricted Subsidiary of the Company
which serves to refund, refinance or defease any Indebtedness, Disqualified
Stock or Preferred Stock Incurred as permitted under Section 4.03(a) and
clauses (ii), (iii), (xiv) and (xv) of this Section 4.03(b) or
any Indebtedness, Disqualified Stock or Preferred Stock Incurred to so refund
or refinance such Indebtedness, Disqualified Stock or 


 


49

















 


Preferred
Stock, including any Indebtedness, Disqualified Stock or Preferred Stock
Incurred to pay premiums, fees and expenses in connection therewith (subject to
the following proviso, “Refinancing Indebtedness”) prior to its
respective maturity; provided, however, that such Refinancing
Indebtedness:


 


(1)           has a Weighted Average Life
to Maturity at the time such Refinancing Indebtedness is Incurred which is not
less than the remaining Weighted Average Life to Maturity of the Indebtedness
being refunded or refinanced;


 


(2)           has a Stated Maturity which
is no earlier than the Stated Maturity of the Indebtedness being refunded or
refinanced;


 


(3)           to the extent such
Refinancing Indebtedness refinances (x) Indebtedness junior to the
Securities, such Refinancing Indebtedness is junior to the Securities or (y) Disqualified
Stock or Preferred Stock, such Refinancing Indebtedness is Disqualified Stock
or Preferred Stock;


 


(4)           is Incurred in an aggregate
principal amount (or if issued with original issue discount, an aggregate issue
price) that is equal to or less than the aggregate principal amount (or if
issued with original issue discount, the aggregate accreted value) then
outstanding of the Indebtedness being refinanced plus premium and fees Incurred
in connection with such refinancing; and


 


(5)           shall not include (x) Indebtedness
of a Restricted Subsidiary of the Company that is not a Guarantor that
refinances Indebtedness of the Company or a Guarantor, or (y) Indebtedness
of the Company or a Restricted Subsidiary that refinances Indebtedness of an
Unrestricted Subsidiary;


 


(xv)         Indebtedness, Disqualified Stock or Preferred Stock
of Persons that are acquired by the Company or any of its Restricted Subsidiaries
or merged into the Company or a Restricted Subsidiary in accordance with the
terms of this Indenture; provided, however, that such Indebtedness,
Disqualified Stock or Preferred Stock is not Incurred in contemplation of such
acquisition or merger or to provide all or a portion of the funds or credit
support required to consummate such acquisition or merger; provided, further,
however, that after giving effect
to such acquisition and the Incurrence of such Indebtedness either:


 


(1)           the Company would be
permitted to Incur at least $1.00 of additional Indebtedness pursuant to Section 4.03(a);
or


 


(2)           the Company’s Fixed Charge
Coverage Ratio would be greater than immediately prior to such acquisition;


 


(xvi)        Indebtedness arising from the honoring by a bank or
other financial institution of a check, draft or similar instrument drawn
against insufficient funds in the ordinary course of business; provided that such Indebtedness is
extinguished within five Business Days of its Incurrence;


 


50






 


 










 


(xvii)       Indebtedness of
the Company or any Restricted Subsidiary supported by a letter of credit or
bank guarantee issued pursuant to the Credit Agreement, in a principal amount
not in excess of the stated amount of such letter of credit or bank guarantee;


 


(xviii)      Contribution
Indebtedness;


 


(xix)         Indebtedness of
the Company or any Restricted Subsidiary consisting of (x) the financing
of insurance premiums or (y) take-or-pay obligations contained in supply
arrangements, in each case, in the ordinary course of business;


 


(xx)          Indebtedness of
Foreign Subsidiaries of the Company in an amount not to exceed the greater of (x) $10
million or (y) 1.5% of Total Assets of all Foreign Subsidiaries at the
time of such Incurrence, at any one time outstanding (it being understood that
any Indebtedness Incurred under this clause (xx) shall cease to be deemed
Incurred or outstanding for purposes of this clause (xx) but shall be
deemed Incurred for purposes of Section 4.03(a) from and after the
first date on which the Company or the Restricted Subsidiary, as the case may
be, could have Incurred such Indebtedness under Section 4.03(a) without
reliance upon this clause (xx)); and


 


(xxi)         Indebtedness or
Disqualified Stock of the Company or any Restricted Subsidiary of the Company
and Preferred Stock of any Restricted Subsidiary of the Company in an aggregate
principal amount which, when aggregated with the principal amount or
liquidation preference of all other Indebtedness, Disqualified Stock and
Preferred Stock then outstanding and Incurred pursuant to this clause (xxi)
does not exceed the greater of (x) $20 million and (y) 2.5% of Total
Assets at the time of Incurrence, at any one time outstanding.


 


(c)           Notwithstanding
the foregoing, the Company may not Incur any Indebtedness pursuant to Section 4.03(b) if
the proceeds thereof are used, directly or indirectly, to repay, prepay,
redeem, defease, retire, refund or refinance any Subordinated Indebtedness
unless such Indebtedness shall be subordinated to the Securities to at least the
same extent as such Subordinated Indebtedness. 
For purposes of determining compliance with this Section 4.03, in
the event that an item of Indebtedness, Disqualified Stock or Preferred Stock
meets the criteria of more than one of the categories of Permitted Debt or is
entitled to be Incurred pursuant to Section 4.03(a), the Company shall, in
its sole discretion, divide, classify or reclassify, or later divide, classify
or reclassify, such item of Indebtedness, Disqualified Stock or Preferred Stock
in any manner that complies with this Section 4.03 and such item of
Indebtedness, Disqualified Stock or Preferred Stock shall be treated as having
been Incurred pursuant to only one of the clauses in Section 4.03(b) or
pursuant to Section 4.03(a); provided
that all Indebtedness under the Credit Agreement outstanding on the Issue Date
shall be deemed to have been Incurred pursuant to clause (i) of Section 4.03(b) and
the Company shall not be permitted to reclassify all or any portion of such
Indebtedness.  Accrual of interest, the
accretion of accreted value, the amortization of original issue discount, the
payment of interest in the form of additional Indebtedness with the same terms,
the payment of dividends on Preferred Stock in the form of additional shares of
Preferred Stock of the same class, the accretion of liquidation preference and
increases in the amount of Indebtedness outstanding solely as a result of
fluctuations in the exchange rate of currencies shall not be deemed to be an
Incurrence of Indebtedness for purposes of this 


 


51

















 


Section 4.03.  Guarantees of, or obligations in respect of
letters of credit relating to, Indebtedness which is otherwise included in the
determination of a particular amount of Indebtedness shall not be included in
the determination of such amount of Indebtedness; provided that the Incurrence of the Indebtedness represented
by such guarantee or letter of credit, as the case may be, was in compliance
with this Section 4.03.


 


(d)           For purposes of determining
compliance with any U.S. dollar-denominated restriction on the Incurrence of
Indebtedness, the U.S. dollar-equivalent principal amount of Indebtedness
denominated in a foreign currency shall be calculated based on the relevant
currency exchange rate in effect on the date such Indebtedness was Incurred, in
the case of term debt, or first committed or first Incurred (whichever yields
the lower U.S. dollar equivalent), in the case of revolving credit debt; provided that if such Indebtedness is
Incurred to refinance other Indebtedness denominated in a foreign currency, and
such refinancing would cause the applicable U.S. dollar-denominated restriction
to be exceeded if calculated at the relevant currency exchange rate in effect on
the date of such refinancing, such U.S. dollar-denominated restriction shall be
deemed not to have been exceeded so long as the principal amount of such
refinancing Indebtedness does not exceed the principal amount of such
Indebtedness being refinanced.


 


SECTION 4.04.               Limitation on
Restricted Payments.


 


(a)           The Company
shall not, and shall not permit any of its Restricted Subsidiaries to, directly
or indirectly:


 


(i)            declare or pay any dividend or make any distribution
on account of the Company’s or any of its Restricted Subsidiaries’ Equity
Interests, including any payment made in connection with any merger or
consolidation involving the Company (other than (A) dividends or
distributions by the Company payable solely in Equity Interests (other than
Disqualified Stock) of the Company; or (B) dividends or distributions by a
Restricted Subsidiary so long as, in the case of any dividend or distribution
payable on or in respect of any class or series of securities issued by a
Restricted Subsidiary other than a Wholly Owned Restricted Subsidiary, the
Company or a Restricted Subsidiary receives at least its pro rata share of such
dividend or distribution in accordance with its Equity Interests in such class
or series of securities);


 


(ii)           purchase or
otherwise acquire or retire for value any Equity Interests of the Company or
any direct or indirect parent company of the Company;


 


(iii)          make any
principal payment on, or redeem, repurchase, defease or otherwise acquire or
retire for value, in each case prior to any scheduled repayment or scheduled
maturity, any Subordinated Indebtedness (other than the payment, redemption,
repurchase, defeasance, acquisition or retirement of (A) Subordinated
Indebtedness in anticipation of satisfying a sinking fund obligation, principal
installment or final maturity, in each case due within one year of the date of
such payment, redemption, repurchase, defeasance, acquisition or retirement and
(B) Indebtedness permitted under clauses (vii) and (ix) of Section 4.03(b));
or


 


52

















 


(iv)          make any
Restricted Investment


 


(all
such payments and other actions set forth in clauses (i) through (iv) above
being collectively referred to as “Restricted Payments”), unless, at the
time of such Restricted Payment:


 


(1)           no Default or Event of Default shall have occurred
and be continuing or would occur as a consequence thereof;


 


(2)           immediately
after giving effect to such transaction on a pro forma basis, the Company could
Incur $1.00 of additional Indebtedness under Section 4.03(a); 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 Issue Date
(including Restricted Payments permitted by clauses (i) and (ix)(B) of
Section 4.04(b), but excluding all other Restricted Payments permitted by Section 4.04(b)),
is less than the sum of, without duplication,


 


(A)          100% of the aggregate net
proceeds, including cash and the Fair Market Value (as determined in accordance
with the next succeeding sentence) of property other than cash, received by the
Company after the Issue Date from the issue or sale of Equity Interests of the
Company or any direct or indirect parent company of the Company (excluding
(without duplication) Equity Interests of the Company or any direct or indirect
parent of the Company or Subordinated Indebtedness of the Company in exchange
for, or out of the proceeds of the substantially concurrent sale of, Equity
Interests of the Company or any direct or indirect parent company of the
Company or contributions to the equity capital of the Company (other than any
Disqualified Stock or any Equity Interests sold to a Subsidiary of the Company
or to an employee stock ownership plan or any trust established by the Company
or any of its Subsidiaries) (collectively, including any such contributions, “Refunding
Capital Stock”), Designated Preferred Stock, Cash Contribution Amount,
Excluded Contributions and Disqualified Stock), including Equity Interests
issued upon conversion of Indebtedness or upon exercise of warrants or options
(other than an issuance or sale to a Subsidiary of the Company or an employee
stock ownership plan or trust established by the Company or any of its
Subsidiaries), plus


 


(B)           100% of the aggregate amount of contributions to the
capital of the Company received in cash and the Fair Market Value (as
determined in accordance with the next succeeding sentence) of property other
than cash after the Issue Date (other than Excluded Contributions, Refunding
Capital Stock, Designated Preferred Stock, Disqualified Stock and the Cash
Contribution Amount), plus


 


(C)           the principal amount of any Indebtedness, or the
liquidation preference or maximum fixed repurchase price, as the case may be,
of any Disqualified Stock, of the Company or any Restricted Subsidiary thereof
issued after the Issue Date (other than Indebtedness or Disqualified Stock
issued to a Restricted 


 


53

















 


Subsidiary)
which has been converted into or exchanged for Equity Interests in the Company
or any direct or indirect parent of the Company (other than Disqualified
Stock), plus


 


(D)          100% of the aggregate amount received by the Company
or any Restricted Subsidiary in cash and the Fair Market Value (as determined
in accordance with the next succeeding sentence) of property other than cash
received by the Company or any Restricted Subsidiary from:


 


(I)            the sale or other
disposition (other than to the Company or a Restricted Subsidiary of the Company)
of Restricted Investments or Permitted Investments made by the Company and its
Restricted Subsidiaries and from repurchases and redemptions of such Restricted
Investments or Permitted Investments from the Company and its Restricted
Subsidiaries by any Person (other than the Company or any of its Subsidiaries)
and from repayments of loans or advances which constituted Restricted
Investments (other than in each case to the extent that the Restricted
Investment was made pursuant to clause (iv) or (vi) of Section 4.04(b)),


 


 (II)          the sale (other than to the
Company or a Restricted Subsidiary of the Company) of the Capital Stock of an
Unrestricted Subsidiary, or


 


(III)         a distribution or dividend from an Unrestricted
Subsidiary, plus


 


(E)           in the event any Unrestricted
Subsidiary of the Company has been redesignated as a Restricted Subsidiary or
has been merged or consolidated with or into, or transfers or conveys its
assets to, or is liquidated into, the Company or a Restricted Subsidiary of the
Company, in each case after the Issue Date, the Fair Market Value (as
determined in accordance with the next succeeding sentence) of the Investment
of the Company in such Unrestricted Subsidiary at the time of such
redesignation, combination or transfer (or of the assets transferred or
conveyed, as applicable), after deducting any Indebtedness associated with the
Unrestricted Subsidiary so designated or combined or any Indebtedness
associated with the assets so transferred or conveyed (other than in each case
to the extent that the designation of such Subsidiary as an Unrestricted
Subsidiary was made pursuant to clause (iv) or (vi) of Section 4.04(b) or
constituted a Permitted Investment).


 


The
Fair Market Value of property other than cash covered by clauses (3)(A),
(B), (C), (D) and (E) of this Section 4.04(a) shall be
determined in good faith by the Company and in the event of property with a
Fair Market Value in excess of $15 million, shall be set forth in a
resolution approved by at least a majority of the Board of Directors of the
Company.


 


(b)           The provisions
of Section 4.04(a) shall not prohibit:


 


54

















 


(i)            the payment of any dividend or distribution within
60 days after the date of declaration thereof, if at the date of declaration
such payment would have complied with the provisions of this Indenture;


 


(ii)           the redemption,
repurchase or other acquisition or retirement of Subordinated Indebtedness of
the Company made by exchange for, or out of the proceeds of the substantially
concurrent sale of, new Indebtedness of the Company which is Incurred in
accordance with Section 4.03 so long as:


 


(A)          the principal amount of such
new Indebtedness does not exceed the principal amount of the Subordinated
Indebtedness being so redeemed, repurchased, acquired or retired for value
(plus the amount of any premium required to be paid under the terms of the
instrument governing the Subordinated Indebtedness being so redeemed,
repurchased, acquired or retired plus any fees incurred in connection
therewith);


 


(B)           such Indebtedness is subordinated to the Securities
at least to the same extent as such Subordinated Indebtedness so purchased,
exchanged, redeemed, repurchased, acquired or retired for value;


 


(C)           such Indebtedness has a final scheduled maturity
date equal to or later than the final scheduled maturity date of the
Subordinated Indebtedness being so redeemed, repurchased, acquired or retired;
and


 


(D)          such Indebtedness has a Weighted Average Life to
Maturity equal to or greater than the remaining Weighted Average Life to
Maturity of the Subordinated Indebtedness being so redeemed, repurchased,
acquired or retired;


 


(iii)          the repurchase, retirement or other acquisition (or
dividends to any direct or indirect parent of the Company to finance any such
repurchase, retirement or other acquisition) for value of Equity Interests of
the Company or any direct or indirect parent of the Company held by any future,
present or former employee, director or consultant of the Company or any direct
or indirect parent of the Company or any Subsidiary of the Company pursuant to
any management equity plan or stock option plan or any other management or
employee benefit plan or other agreement or arrangement; provided,
however, that the aggregate amounts paid under this clause (iii) do
not exceed $5 million in any calendar year (with unused amounts in any
calendar year being permitted to be carried over for the two succeeding
calendar years up to a maximum of $10 million in the aggregate in any calendar
year); provided, further, however,
that such amount in any calendar year may be increased by an amount not to
exceed:


 


(A)          the cash proceeds received
by the Company or any of its Restricted Subsidiaries from the sale of Equity
Interests (other than Disqualified Stock) of the Company or any direct or
indirect parent company of the Company (to the extent contributed to the
Company) to members of management, directors or consultants of the Company and
its Restricted Subsidiaries or any direct or indirect parent of the Company
that occurs after the Issue Date (provided
that the amount 


 


55

















 


of such cash proceeds utilized for any such
repurchase, retirement, other acquisition or dividend shall not increase the
amount available for Restricted Payments under Section 4.04(a)(3)); plus


 


(B)           the cash proceeds of key man life insurance policies
received by the Company or any direct or indirect parent company of the Company
(to the extent contributed to the Company) and its Restricted Subsidiaries
after the Issue Date 


 


(provided that the Company may elect to
apply all or any portion of the aggregate increase contemplated by
clauses (A) and (B) above in any calendar year);


 


(iv)          Investments in Unrestricted Subsidiaries having an aggregate
Fair Market Value, taken together with all other Investments made pursuant to
this clause (iv) that are at that time outstanding, not to exceed the
greater of (x) $25 million and (y) 3% of Total Assets, at the
time of such Investment (with the Fair Market Value of each Investment being
measured at the time made and without giving effect to subsequent changes in
value), at any one time outstanding;


 


(v)           Investments
that are made with Excluded Contributions;


 


(vi)          other
Restricted Payments in an aggregate amount not to exceed $5 million at any one
time outstanding;


 


(vii)         the
distribution, as a dividend or otherwise, of shares of Capital Stock of, or
Indebtedness owed to the Company or a Restricted Subsidiary of the Company by,
Unrestricted Subsidiaries;


 


(viii)        the payment of
dividends or other distributions to any direct or indirect parent company of
the Company in amounts required for such parent company to pay federal, state
or local income taxes (as the case may be) imposed directly on such parent
company to the extent such income taxes are attributable to the income of the
Company and its Restricted Subsidiaries by virtue of such parent company being
the common parent of a consolidated or combined tax group of which the Company
and/or its Restricted Subsidiaries are members; provided, however,
that in each case the amount of such payments in respect of any tax year does
not exceed the amount that the Company and its Restricted Subsidiaries would
have been required to pay in respect of federal, state or local taxes (as the
case may be) in respect of such year if the Company and its Restricted
Subsidiaries paid such taxes directly as a stand-alone taxpayer (or stand-alone
group);


 


(ix)           the payment of
dividends, other distributions or other amounts by the Company to, or the
making of loans to, any direct or indirect parent, in the amount required for
such parent to, if applicable:


 


(A)          pay amounts equal to the
amounts required for any direct or indirect parent of the Company to pay fees
and expenses (including franchise or similar taxes) required to maintain its
corporate existence, customary salary, bonus 


 


56

















 


and other benefits payable to officers and employees
of any direct or indirect parent of the Company, if applicable, and general
corporate overhead expenses of any direct or indirect parent of the Company, if
applicable, in each case to the extent such fees, expenses, salaries, bonuses,
benefits and indemnities are attributable to the ownership or operation of the
Company, if applicable, and its Restricted Subsidiaries; and


 


(B)           pay, if applicable, amounts equal to amounts
required for any direct or indirect parent of the Company, if applicable, to
pay interest and/or principal on Indebtedness the proceeds of which have been
permanently contributed to the Company or any of its Restricted Subsidiaries
and that has been guaranteed by, or is otherwise considered Indebtedness of,
the Company or any of its Restricted Subsidiaries Incurred in accordance with Section 4.03;


 


(x)            the payment of cash dividends or other distributions
on the Company’s Capital Stock used to, or the making of loans to any direct or
indirect parent of the Company to, fund the payment of fees and expenses owed
by the Company or any direct or indirect parent company of the Company, as the
case may be, or Restricted Subsidiaries of the Company to Affiliates, in each
case to the extent permitted by Section 4.07;


 


(xi)           repurchases of
Equity Interests deemed to occur upon exercise of stock options or warrants if
such Equity Interests represent a portion of the exercise price of such options
or warrants;


 


(xii)          purchases of
receivables pursuant to a Receivables Repurchase Obligation in connection with
a Qualified Receivables Financing and the payment or distribution of
Receivables Fees;


 


(xiii)         the payment,
purchase, redemption, defeasance or other acquisition or retirement for value
of Subordinated Indebtedness, Disqualified Stock or Preferred Stock of the
Company and its Restricted Subsidiaries pursuant to provisions similar to those
described under Section 4.06 and Section 4.08; provided that, prior to such payment,
purchase, redemption, defeasance or other acquisition or retirement for value,
the Company (or a third party to the extent permitted by this Indenture) has
made a Change of Control Offer or Asset Sale Offer, as the case may be, with
respect to the Securities as a result of such Change of Control or Asset Sale,
as the case may be, and has repurchased all Securities validly tendered and not
withdrawn in connection with such Change of Control Offer or Asset Sale Offer,
as the case may be; and


 


(xiv)        any payments
made in connection with the consummation of the Transactions;


 


provided, however, that at the time of, and after giving effect to,
any Restricted Payment permitted under clauses (iv), (vi), (vii) and
(xiii) of this Section 4.04(b), no Default or Event of Default shall have
occurred and be continuing or would occur as a consequence thereof.


 


57

















 


(c)           As of the Issue
Date, all of the Company’s Subsidiaries shall be Restricted Subsidiaries.  The Company shall not permit any Unrestricted
Subsidiary to become a Restricted Subsidiary except pursuant to the definition
of “Unrestricted Subsidiary.”  For
purposes of designating any Restricted Subsidiary as an Unrestricted
Subsidiary, all outstanding Investments by the Company and its Restricted
Subsidiaries (except to the extent repaid) in the Subsidiary so designated
shall be deemed to be Restricted Payments or Permitted Investments in an amount
determined as set forth in the last sentence of the definition of “Investments.”  Such designation shall only be permitted if a
Restricted Payment or Permitted Investment in such amount would be permitted at
such time and if such Subsidiary otherwise meets the definition of an
Unrestricted Subsidiary.


 


(d)           For purposes of this Section 4.04,
if any Investment or Restricted Payment would be permitted pursuant to one or
more provisions described above and/or one or more of the exceptions contained
in the definition of “Permitted Investments,” the Company may classify such
Investment or Restricted Payment in any manner that complies with this covenant
and may later reclassify any such Investment or Restricted Payment so long as
the Investment or Restricted Payment (as so reclassified) would be permitted to
be made in reliance on the applicable exception as of the date of such
reclassification.


 


SECTION 4.05.               Dividend and
Other Payment Restrictions Affecting Subsidiaries.  The Company shall not, and shall not permit
any of its Restricted Subsidiaries to, directly or indirectly, create or
otherwise cause or suffer to exist or become effective any consensual
encumbrance or consensual restriction on the ability of any Restricted
Subsidiary to:


 


(a)           (i) pay
dividends or make any other distributions to the Company or any of its
Restricted Subsidiaries (1) on its Capital Stock; or (2) with respect
to any other interest or participation in, or by, its profits; or (ii) pay
any Indebtedness owed to the Company or any of its Restricted Subsidiaries;


 


(b)           make loans or advances to
the Company or any of its Restricted Subsidiaries; or


 


(c)           sell, lease or transfer any
of its properties or assets to the Company or any of its Restricted
Subsidiaries;


 


except
in each case for such encumbrances or restrictions existing under or by reason
of:


 


(1)           contractual encumbrances or restrictions in effect
or entered into on the Issue Date, including pursuant to the Credit Agreement
and the FGI Opco Notes;


 


(2)           this Indenture
and the Securities (and any Exchange Securities and guarantees thereof);


 


(3)           applicable law
or any applicable rule, regulation or order;


 


(4)           any agreement
or other instrument of a Person acquired by the Company or any Restricted
Subsidiary which was in existence at the time of such acquisition (but 


 


58

















 


not
created in contemplation thereof), which encumbrance or restriction is not
applicable to any Person, or the properties or assets of any Person, other than
the Person, or the property or assets of the Person, so acquired;


 


(5)           contracts or
agreements for the sale of assets, including customary restrictions with
respect to a Restricted Subsidiary imposed pursuant to an agreement entered
into for the sale or disposition of all or substantially all the Capital Stock
or assets of such Restricted Subsidiary;


 


(6)           any Secured
Indebtedness permitted to be Incurred pursuant to Sections 4.03 and 4.11
that limit the right of the debtor to dispose of the assets securing such
Indebtedness;


 


(7)           restrictions on
cash or other deposits or net worth imposed by customers under contracts
entered into in the ordinary course of business;


 


(8)           customary
provisions in joint venture agreements and other similar agreements entered
into in the ordinary course of business;


 


(9)           purchase money
obligations for property acquired and Capitalized Lease Obligations in the
ordinary course of business that impose restrictions of the nature discussed in
clause (c) above on the property so acquired;


 


(10)         customary
provisions contained in leases, licenses, contracts and other similar
agreements entered into in the ordinary course of business that impose
restrictions of the type described in clause (c) above on the
property subject to such lease;


 


(11)         any encumbrance
or restriction of a Receivables Subsidiary effected in connection with a
Qualified Receivables Financing; provided, however, that such restrictions apply
only to such Receivables Subsidiary;


 


(12)         other
Indebtedness, Disqualified Stock or Preferred Stock of any Restricted
Subsidiary of the Company that is Incurred subsequent to the Issue Date
pursuant to Section 4.03; provided
that such encumbrances and restrictions contained in any agreement or instrument
will not materially affect the Company’s ability to make anticipated principal
or interest payment on the Securities (as determined by the Company in good
faith);


 


(13)         any Restricted
Investment not prohibited by Section 4.04 and any Permitted Investment;
and


 


(14)         any
encumbrances or restrictions of the type referred to in clauses (a), (b) and
(c) above imposed by any amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacements or refinancings of
the contracts, instruments or obligations referred to in clauses (1) through
(13) above; provided that such
amendments, modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancings are, in the good faith judgment of the
Company, no more 


 


59

















 


restrictive
as a whole with respect to such dividend and other payment restrictions than
those contained in the dividend or other payment restrictions prior to such
amendment, modification, restatement, renewal, increase, supplement, refunding,
replacement or refinancing.


 


For
purposes of determining compliance with this Section 4.05, (i) the
priority of any Preferred Stock in receiving dividends or liquidating
distributions prior to dividends or liquidating distributions being paid on
ordinary shares shall not be deemed a restriction on the ability to make
distributions on Capital Stock and (ii) the subordination of loans or
advances made to the Company or a Restricted Subsidiary of the Company to other
Indebtedness Incurred by the Company or any such Restricted Subsidiary shall
not be deemed a restriction on the ability to make loans or advances.


 


Notwithstanding
anything to the contrary in this Section 4.05, the Company shall not
permit any of its Restricted Subsidiaries, including FGI Opco, to Incur any
Indebtedness, Disqualified Stock or Preferred Stock that would create or
otherwise cause or suffer to exist any encumbrance or restriction on the
ability of any such Restricted Subsidiary to pay dividends or make any other
distributions to the Company that is more restrictive than in effect with
respect to any such Restricted Subsidiary on the Issue Date.


 


SECTION 4.06.               Asset Sales.


 


(a)           The Company
shall not, and shall not permit any of its Restricted Subsidiaries to, cause or
make an Asset Sale, unless:


 


(1)           the Company or
any of its Restricted Subsidiaries, as the case may be, receives consideration
at the time of such Asset Sale at least equal to the Fair Market Value (as
determined in good faith by the Company) of the assets sold or otherwise
disposed of; and


 


(2)           except in the
case of a Permitted Asset Swap, at least 75% of the consideration therefor
received by the Company or such Restricted Subsidiary, as the case may be, is
in the form of Cash Equivalents; provided
that the amount of:


 


(i)            any liabilities (as shown on
the Company’s or such Restricted Subsidiary’s most recent balance sheet or in
the notes thereto) of the Company or any Restricted Subsidiary of the Company
(other than liabilities that are by their terms subordinated to the Securities)
that are assumed by the transferee of any such assets,


 


(ii)           any notes or other obligations or other securities
or assets received by the Company or such Restricted Subsidiary of the Company from
such transferee that are converted by the Company or such Restricted Subsidiary
of the Company into cash within 180 days of the receipt thereof (to the extent
of the cash received), and


 


60






 


 










 


(iii)          any Designated Non-cash Consideration received by
the Company or any of its Restricted Subsidiaries in such Asset Sale having an
aggregate Fair Market Value, taken together with all other Designated Non-cash
Consideration received pursuant to this clause (iii) that is at that
time outstanding, not to exceed the greater of (x) $25 million and (y) 3%
of Total Assets at the time of the receipt of such Designated Non-cash
Consideration (with the Fair Market Value of each item of Designated Non-cash
Consideration being measured at the time received and without giving effect to
subsequent changes in value)


 


shall
each be deemed to be Cash Equivalents for the purposes of this Section 4.06(a).


 


(b)           Within
365 days after the Company or any Restricted Subsidiary of the Company’s
receipt of the Net Cash Proceeds of any Asset Sale, the Company or such
Restricted Subsidiary may apply the Net Cash Proceeds from such Asset Sale, at
its option:


 


(i)            to permanently repay Indebtedness under the Credit
Agreement or any Indebtedness of a Restricted Subsidiary;


 


(ii)           to permanently
reduce Obligations under Pari Passu Indebtedness (provided that if the Company shall so reduce such
Obligations, the Company shall equally and ratably reduce Obligations under the
Securities if the Securities are then prepayable or, if the Securities may not
then be prepaid, by making an offer (in accordance with the procedures set
forth below for an Asset Sale Offer) to all Holders to purchase at a purchase
price equal to 100% of the principal amount thereof, plus accrued and unpaid
interest, if any, the pro rata principal amount of Securities that would
otherwise be prepaid);


 


(iii)          to an
Investment in any one or more businesses (provided
that if such investment is in the form of the acquisition of Capital Stock of a
Person, such acquisition results in such Person becoming a Restricted
Subsidiary of the Company), or capital expenditures, in each case used or
useful in a Similar Business; and/or


 


(iv)          to make an
Investment in any one or more businesses (provided
that if such investment is in the form of the acquisition of Capital Stock of a
Person, such acquisition results in such Person becoming a Restricted
Subsidiary of the Company), properties or assets that replace the properties
and assets that are the subject of such Asset Sale;


 


provided that in the case of clauses
(iii) and (iv) above, a binding commitment shall be treated as a
permitted application of the Net Cash Proceeds from the date of such commitment
and, in the event such binding commitment is later canceled or terminated for
any reason before such Net Cash Proceeds are so applied, the Company or such
Restricted Subsidiary enters into another binding commitment within six months
of such cancellation or termination of the prior binding commitment.


 


Pending
the final application of any such Net Cash Proceeds, the Company or such
Restricted Subsidiary of the Company may temporarily reduce Indebtedness under
a revolving credit facility, if any, or otherwise invest such Net Cash Proceeds
in Cash Equivalents or Investment Grade Securities.  Any Net Cash Proceeds from any Asset Sale
that are not applied as 


 


61

















 


provided
and within the time period set forth in the first sentence of this Section 4.06(b) shall
be deemed to constitute “Excess Proceeds.”  When the aggregate amount of Excess Proceeds
exceeds $15 million, the Company shall make an offer (an “Asset Sale
Offer”) to all Holders of Securities and to all holders of other Pari Passu
Indebtedness containing provisions similar to those set forth in this Indenture
with respect to Assets Sales, to purchase the maximum principal amount of such
Securities and 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 thereof (or in the event such other Indebtedness was issued with
significant original issue discount, 100% of the accreted value thereof), plus
accrued and unpaid interest, if any (or such lesser price, if any, as may be
provided by the terms of such other Indebtedness), to the date fixed for the
closing of such offer, in accordance with the procedures set forth in this Section 4.06
and, in the case of Securities, provided
that no Securities of $2,000 principal amount or less shall be redeemed in
part. The Company shall commence an Asset Sale Offer with respect to Excess
Proceeds within ten Business Days after the date that Excess Proceeds exceed
$15 million by mailing the notice required pursuant to the terms of Section 4.06(f),
with a copy to the Trustee. To the extent that the aggregate amount of
Securities and such other Indebtedness tendered pursuant to an Asset Sale Offer
is less than the Excess Proceeds, the Company may use any remaining Excess
Proceeds for general corporate purposes. If the aggregate principal amount of
Securities and Pari Passu Indebtedness surrendered by holders thereof exceeds
the amount of Excess Proceeds, the Trustee shall select the Securities and the
Company shall select such other Indebtedness to be purchased in the manner
described in Section 4.06(e). Upon completion of any such Asset Sale
Offer, the amount of Excess Proceeds shall be reset at zero.


 


(c)           The Company
shall comply with the requirements of Rule 14e-1 under the Exchange Act
and any other securities laws and regulations to the extent such laws or
regulations are applicable in connection with the repurchase of the Securities
pursuant to an Asset Sale Offer.  To the
extent that the provisions of any securities laws or regulations conflict with
the provisions of this Indenture, the Company shall comply with the applicable
securities laws and regulations and shall not be deemed to have breached its
obligations described in this Indenture by virtue thereof.


 


(d)           Not later than the date upon
which written notice of an Asset Sale Offer is delivered to the Trustee as
provided above, the Company shall deliver to the Trustee an Officers’
Certificate as to (i) the amount of the Excess Proceeds, (ii) the
allocation of the Net Cash Proceeds from the Asset Sales pursuant to which such
Asset Sale Offer is being made and (iii) the compliance of such allocation
with the provisions of Section 4.06(b). 
On such date, the Company shall also irrevocably deposit with the
Trustee or with a Paying Agent (or, if the Company or a Wholly Owned Restricted
Subsidiary is acting as a Paying Agent, segregate and hold in trust) an amount
equal to the Excess Proceeds to be invested in Cash Equivalents, as directed in
writing by the Company, and to be held for payment in accordance with the
provisions of this Section 4.06. 
Upon the expiration of the period for which the Asset Sale Offer remains
open (the “Offer Period”), the Company shall deliver to the Trustee for
cancellation the Securities or portions thereof that have been properly
tendered to and are to be accepted by the Company.  The Trustee (or a Paying Agent, if not the
Trustee) shall, on the date of purchase, mail or deliver payment to each tendering
Holder in the amount of the purchase price. 
In the event that the Excess Proceeds delivered by the Company to the
Trustee is greater than the purchase price of the 


 


62

















 


Securities
tendered, the Trustee shall deliver the excess to the Company immediately after
the expiration of the Offer Period for application in accordance with Section 4.06.


 


(e)           Holders electing to have a
Security purchased shall be required to surrender the Security, with an
appropriate form duly completed, to the Company at the address specified in the
notice at least three Business Days prior to the purchase date.  Holders shall be entitled to withdraw their
election if the Trustee or the Company receives not later than two Business Days
prior to the purchase date, a telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the principal amount of the Security
which was delivered by the Holder for purchase and a statement that such Holder
is withdrawing his election to have such Security purchased.  If at the end of the Offer Period more
Securities are tendered pursuant to an Asset Sale Offer than the Company is
required to purchase, selection of such Securities for purchase shall be made
by the Trustee in compliance with the requirements of the principal national
securities exchange, if any, on which such Securities are listed, or if such
Securities are not listed by lot or such other method as the Trustee shall deem
fair and appropriate (and in such manner as complies with applicable legal requirements);
provided that the Trustee shall
not select Securities for purchase which would result in a Holder with a
principal amount of Securities less than the minimum denomination to the extent
practicable.


 


(f)            Notices of an Asset Sale
Offer shall be mailed by first class mail, postage prepaid, at least 30 but not
more than 60 days before the purchase date to each Holder of Securities at
such Holder’s registered address, with a copy to the Trustee.  If any Security is to be purchased in part
only, any notice of purchase that relates to such Security shall state the
portion of the principal amount thereof that has been or is to be purchased.


 


(g)           A new Security in principal
amount equal to the unpurchased portion of any Security purchased in part shall
be issued in the name of the Holder thereof upon cancellation of the original
Security.  On and after the purchase
date, unless the Company defaults in payment of the purchase price, interest
shall cease to accrue on Securities or portions thereof purchased.


 


SECTION 4.07.               Transactions
with Affiliates.


 


(a)           The Company
shall not, and shall not permit any of its Restricted Subsidiaries to, directly
or indirectly, 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 or series of
transactions, contract, agreement, understanding, loan, advance or guarantee
with, or for the benefit of, any Affiliate of the Company (each of the foregoing,
an “Affiliate Transaction”) involving aggregate consideration in excess
of $2.5 million, unless:


 


(i)            such Affiliate Transaction is on terms that are not
materially less favorable to the Company or the relevant Restricted Subsidiary
than those that could have been obtained in a comparable transaction by the
Company or such Restricted Subsidiary with an unrelated Person; and


 


63

















 


(ii)           with respect to
any Affiliate Transaction or series of related Affiliate Transactions involving
aggregate consideration in excess of $10 million, the Company delivers to
the Trustee a resolution adopted in good faith by the majority of the Board of
Directors of the Company or any direct or indirect parent of the Company,
approving such Affiliate Transaction and set forth in an Officers’ Certificate
certifying that such Affiliate Transaction complies with clause (i) above.


 


(b)           The provisions
of Section 4.07(a) shall not apply to the following:


 


(i)            (A) transactions between or among the Company
and/or any of its Restricted Subsidiaries and (B) any merger of the
Company and any direct parent company of the Company; provided that such parent company shall
have no material liabilities and no material assets other than cash, Cash
Equivalents and the Capital Stock of the Company and such merger is otherwise
in compliance with the terms of this Indenture and effected for a bona fide
business purpose;


 


(ii)           (x) Restricted
Payments permitted by Section 4.04 and (y) Permitted Investments;


 


(iii)          the payment of
reasonable and customary fees paid to, and indemnity provided on behalf of,
officers, directors, employees or consultants of the Company or any Restricted
Subsidiary or any direct or indirect parent company of the Company;


 


(iv)          transactions in
which the Company or any of its Restricted Subsidiaries, as the case may be,
delivers to the Trustee a letter from an Independent Financial Advisor stating
that such transaction is fair to the Company or such Restricted Subsidiary from
a financial point of view or meets the requirements of clause (i) of Section 4.07(a);


 


(v)           payments or
loans (or cancellation of loans) to employees or consultants in the ordinary
course of business which are approved by a majority of the Board of Directors of
the Company in good faith;


 


(vi)          any agreement
(other than with the Sponsors) as in effect as of the Issue Date or any
amendment thereto (so long as any such agreement together with all amendments
thereto, taken as a whole, is not more disadvantageous to the Holders of the
Securities in any material respect than the original agreement as in effect on
the Issue Date) or any transaction contemplated thereby;


 


(vii)         the existence
of, or the performance by the Company or any of its Restricted Subsidiaries of its
obligations under the terms of any stockholders agreement (including any
registration rights agreement or purchase agreement related thereto) to which
it is a party as of the Issue Date and any amendment thereto or similar
agreements which it may enter into thereafter; provided, however, that the existence of, or the
performance by the Company or any of its Restricted Subsidiaries of its
obligations under, any future amendment to any such existing agreement or under
any similar agreement entered into after the Issue Date shall only be permitted
by this clause (vii) to the extent that the terms of any such
existing agreement together with all amendments thereto, taken as a whole, 


 


64

















 


or
new agreement are not otherwise more disadvantageous to the Holders of the
Securities in any material respect than the original agreement as in effect on
the Issue Date;


 


(viii)        (A) transactions
with customers, clients, suppliers or purchasers or sellers of goods or
services, in each case in the ordinary course of business and otherwise in
compliance with the terms of this Indenture, which are fair to the Company and
its Restricted Subsidiaries in the reasonable determination of the Board of
Directors or the senior management of the Company, and are on terms at least as
favorable as might reasonably have been obtained at such time from an
unaffiliated party or (B) transactions with joint ventures or Unrestricted
Subsidiaries entered into in the ordinary course of business;


 


(ix)           any transaction
effected as part of a Qualified Receivables Financing;


 


(x)            the issuance of
Equity Interests (other than Disqualified Stock) of the Company to any
Permitted Holder or to any director, officer, employee or consultant of the
Company or any direct or indirect parent company of the Company;


 


(xi)           the entering
into of any agreement (and any amendment or modification of any such agreement)
to pay, and the payment of, annual management, consulting, monitoring and
advisory fees to the Sponsor in an aggregate amount in any fiscal year not to
exceed the greater of (x) $3.0 million and (y) 3% of EBITDA, plus all
out-of-pocket reasonable expenses incurred by the Sponsor or any of its
Affiliates in connection with the performance of management, consulting,
monitoring, advisory or other services with respect to the Company and its
Restricted Subsidiaries;


 


(xii)          payments by the
Company or any of its Restricted Subsidiaries to the Sponsor or Meritage made
for any financial advisory, financing, underwriting or placement services or in
respect of other investment banking activities, including, without limitation,
in connection with acquisitions or divestitures, which payments are approved by
a majority of the Board of Directors of the Company or any direct or indirect
parent of the Company in good faith;


 


(xiii)         any
contribution to the capital of the Company;


 


(xiv)        transactions
permitted by, and complying with, the provisions of Section 5.01;


 


(xv)         transactions
between the Company or any of its Restricted Subsidiaries and any Person, a
director of which is also a director of the Company or any direct or indirect
parent of the Company; provided, however, that such director abstains from
voting as a director of the Company or such direct or indirect parent of the
Company, as the case may be, on any matter involving such other Person;


 


(xvi)        pledges of
Equity Interests of Unrestricted Subsidiaries;


 


(xvii)       any employment
agreements entered into by the Company or any of its Restricted Subsidiaries in
the ordinary course of business;


 


65

















 


(xviii)      the issuances
of securities or other payments, awards or grants in cash, securities or
otherwise pursuant to, or the funding of, employment arrangements, stock option
and stock ownership plans or similar employee benefit plans approved by the
Board of Directors of the Company or any direct or indirect parent of the
Company or of a Restricted Subsidiary of the Company, as appropriate, in good
faith;


 


(xix)         the entering
into of any tax sharing agreement or arrangement and any payments permitted by Section 4.04(b)(viii);
and


 


(xx)          transactions to
effect the Transactions and the payment of all fees and expenses related to the
Transactions.


 


SECTION 4.08.               Change of
Control.


 


(a)           Upon a Change
of Control, each Holder shall have the right to require the Company to
repurchase all or any part of such Holder’s Securities at a purchase price in
cash equal to 101% of the principal amount thereof, plus accrued and unpaid
interest, if any, to the date of repurchase (subject to the right of the
Holders of record on the relevant record date to receive interest due on the
relevant Interest Payment Date), in accordance with the terms contemplated in
this Section 4.08; provided, however, that notwithstanding the
occurrence of a Change of Control, the Company shall not be obligated to
purchase any Securities pursuant to this Section 4.08 in the event that it
has exercised its right to redeem such Securities in accordance with Article 3
of this Indenture.


 


In
the event that at the time of such Change of Control the terms of the Credit
Agreement and/or the FGI Opco Indenture restrict or prohibit the repurchase of
Securities pursuant to this Section 4.08, then prior to the mailing of the
notice to the Holders provided for in Section 4.08(b) but in any
event within 30 days following any Change of Control, the Company shall (i) repay
in full any Credit Agreement and/or the FGI Opco Indenture, or (ii) obtain
the requisite consent, if required, under any Credit Agreement and/or the FGI
Opco Indenture to permit the repurchase of the Securities as provided for in Section 4.08(b).


 


(b)           Within
30 days following any Change of Control, except to the extent that the
Company has exercised its right to redeem the Securities in accordance with Article 3
of this Indenture, the Company shall mail a notice (a “Change of Control
Offer”) to each Holder with a copy to the Trustee stating:


 


(i)            that a Change of Control has occurred and that such
Holder has the right to require the Company to purchase all or a portion of
such Holder’s Securities at a purchase price in cash equal to 101% of the
principal amount thereof, plus accrued and unpaid interest, if any, to the date
of purchase (subject to the right of the Holders of record on a record date to
receive interest on the relevant Interest Payment Date);


 


(ii)           the
circumstances and relevant facts and financial information regarding such
Change of Control;


 


66

















 


(iii)          the repurchase
date (which shall be no earlier than 30 days nor later than 60 days from the
date such notice is mailed); and


 


(iv)          the
instructions determined by the Company, consistent with this Section 4.08,
that a Holder must follow in order to have its Securities purchased.


 


(c)           Holders
electing to have a Security purchased shall be required to surrender the
Security, with an appropriate form duly completed, to the Company at the
address specified in the notice at least three Business Days prior to the
purchase date.  The Holders shall be
entitled to withdraw their election if the Trustee or the Company receives not
later than two Business Days prior to the purchase date a telegram, telex,
facsimile transmission or letter setting forth the name of the Holder, the
principal amount of the Security which was delivered for purchase by the Holder
and a statement that such Holder is withdrawing his election to have such
Security purchased.  Holders whose
Securities are purchased only in part shall be issued new Securities equal in
principal amount to the unpurchased portion of the Securities surrendered.


 


(d)           On the purchase date, all
Securities purchased by the Company under this Section shall be delivered
to the Trustee for cancellation, and the Company shall pay the purchase price
plus accrued and unpaid interest to the Holders entitled thereto.


 


(e)           Notwithstanding the
foregoing provisions of this Section 4.08, the Company shall not be
required to make a Change of Control Offer upon a Change of Control if 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 Section 4.08(b) applicable
to a Change of Control Offer made by the Company and purchases all Securities
validly tendered and not withdrawn under such Change of Control Offer.


 


(f)            At the time the Company
delivers Securities to the Trustee which are to be accepted for purchase, the
Company shall also deliver an Officers’ Certificate stating that such
Securities are to be accepted by the Company pursuant to and in accordance with
the terms of this Section 4.08.  A
Security shall be deemed to have been accepted for purchase at the time the
Trustee or the Paying Agent, directly or through an agent, mails or delivers
payment therefor to the surrendering Holder.


 


(g)           Prior to any Change of
Control Offer, the Company shall deliver to the Trustee an Officers’
Certificate stating that all conditions precedent contained herein to the right
of the Company to make such offer have been complied with.


 


(h)           The Company shall comply, to
the extent applicable, with the requirements of Section 14(e) of the
Exchange Act and any other securities laws or regulations in connection with
the repurchase of Securities pursuant to this Section 4.08.  To the extent that the provisions of any
securities laws or regulations conflict with provisions of this Section 4.08,
the Company shall comply with the applicable securities laws and regulations
and shall not be deemed to have breached its obligations under this Section 4.08
by virtue thereof.


 


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(i)            A Change of Control Offer
may be made in advance of a Change of Control, and conditioned upon such Change
of Control, if a definitive agreement is in place for the Change of Control at
the time of making the Change of Control Offer.


 


SECTION 4.09.               Compliance
Certificate.  The Company
shall deliver to the Trustee within 120 days after the end of each fiscal
year of the Company an Officers’ Certificate stating that in the course of the
performance by the signers of their duties as Officers of the Company they
would normally have knowledge of any Default and whether or not the signers
know of any Default that occurred during such period.  If they do, the certificate shall describe the
Default, its status and what action the Company is taking or proposes to take
with respect thereto.  From the date on
which this Indenture is qualified under the TIA, the Company also shall comply
with Section 314(a)(4) of the TIA.


 


SECTION 4.10.               Future Guarantors.  The Company will cause each Restricted
Subsidiary that is a wholly owned Domestic Subsidiary (unless such Subsidiary
is a Receivables Subsidiary) that guarantees any Indebtedness of the Company,
other than any Permitted Debt referred to in Section 4.03(b), to execute
and deliver to the Trustee a supplemental indenture pursuant to which such
Subsidiary shall guarantee payment of the Securities.


 


Each
future Guarantee will be limited to an amount not to exceed the maximum amount
that can be guaranteed by that Restricted Subsidiary without rendering the
Guarantee, as it relates to such Restricted Subsidiary, voidable under
applicable law relating to fraudulent conveyance or fraudulent transfer or
similar laws affecting the rights of creditors generally.


 


A
Guarantee of a Guarantor will be automatically released and discharged upon:


 


(a)           the sale,
disposition or other transfer (including through merger or consolidation) of
the Capital Stock (including any sale, disposition or other transfer following
which the applicable Guarantor is no longer a Restricted Subsidiary), or all or
substantially all the assets, of the applicable Guarantor if such sale,
disposition or other transfer is made in compliance with this Indenture,


 


(b)           the Company designating such
Guarantor to be an Unrestricted Subsidiary in accordance with the provisions of
Section 4.04 and the definition of “Unrestricted Subsidiary,”


 


(c)           the release or discharge of
the guarantee by such Restricted Subsidiary of Indebtedness of the Company or
any Restricted Subsidiary of the Company or such Restricted Subsidiary or the
repayment of the Indebtedness or Disqualified Stock, in each case, which
resulted in the obligation to guarantee the Securities, or


 


(d)           the Company’s exercise of
its legal defeasance option or covenant defeasance option as described in Section 8.01
or if the Company’s obligations under this Indenture are discharged in
accordance with the terms of this Indenture.


 


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SECTION 4.11.               Liens.


 


(a)           The Company
shall not, and shall not permit any of its Restricted Subsidiaries, directly or
indirectly, to enter into, create, incur, assume or suffer to exist any Liens
of any kind on or with respect to the FGI Opco Stock except Permitted Liens.  The Company shall not, and shall not permit
any Restricted Subsidiary to, directly or indirectly, create, Incur or suffer
to exist any Lien (other than Permitted Liens) on any asset or property of the
Company or such Restricted Subsidiary, or any income or profits therefrom, or
assign or convey any right to receive income therefrom, that secures any
Obligations of the Company or such Restricted Subsidiary, other than the FGI
Opco Stock, without effectively providing that the Securities shall be equally and
ratably secured with (or on a senior basis to, in the case such Lien secures
any Subordinated Indebtedness) the Obligations secured by such Lien.


 


(b)           Section 4.11(a) shall
not require the Company or any Restricted Subsidiary of the Company to secure the
Securities if the relevant Lien consists of a Permitted Lien. Any Lien which is
granted to secure the Securities under Section 4.11(a) shall be
automatically released and discharged at the same time as the release of the
Lien that gave rise to the obligation to secure the Securities under Section 4.11(a).


 


SECTION 4.12.               Anti-layering.  The Company will at all times directly own
100% of the Capital Stock of FGI Opco (the “FGI Opco Stock”). No Person that is
a Subsidiary of the Company and a Parent of FGI Opco may Incur any Indebtedness
and any Indebtedness Incurred by the Company shall be junior to or pari passu in right of payment with the
Securities and shall not be Secured Indebtedness.


 


SECTION 4.13.               Maintenance of
Office or Agency.


 


(a)           The Company shall
maintain in the United States, an office or agency (which may be an office of
the Trustee or an affiliate of the Trustee or Registrar) where Securities may
be surrendered for registration of transfer or for exchange and where notices
and demands to or upon the Company in respect of the Securities and this
Indenture may be served.  The Company
shall give prompt written notice to the Trustee of the location, and any change
in the location, of such office or agency. 
If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at
the corporate trust office of the Trustee as set forth in Section 11.02.


 


(b)           The Company may also from
time to time designate one or more other offices or agencies where the
Securities may be presented or surrendered for any or all such purposes and may
from time to time rescind such designations. 
The Company shall give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.


 


(c)           The Company hereby
designates the corporate trust office of the Trustee or its agent, as such
office or agency of the Company in accordance with Section 2.04.


 


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SECTION 4.14.               Discharge and
Suspension of Covenants.


 


(a)           If on any date
following the Issue Date (i) the Securities have Investment Grade Ratings
from both Rating Agencies, and (ii) no Default has occurred and is
continuing under this Indenture (the occurrence of the events described in the
foregoing clauses (i) and (ii) being collectively referred to as a “Covenant
Suspension Event”), Section 4.03, Section 4.04, Section 4.05,
Section 4.07, and clause (iv) of Section 5.01 (collectively, the
“Suspended Covenants”) shall no longer be applicable to such Securities.


 


(b)           In the event that the
Company and the Restricted Subsidiaries are not subject to the Suspended
Covenants under this Indenture for any period of time pursuant to Section 4.14(a) (any
such period, a “Suspension Period”), and on any subsequent date (the “Reversion
Date”) one or both of the Rating Agencies (1) withdraw their
Investment Grade Rating or downgrade the rating assigned to the Securities
below an Investment Grade Rating and/or (2) the Company or any of its
Affiliates enters into an agreement to effect a transaction and one or more of
the Rating Agencies indicate that if consummated, such transaction (alone or
together with any related recapitalization or refinancing transactions) would
cause such Rating Agency to withdraw its Investment Grade Rating or downgrade
the ratings assigned to the Securities below an Investment Grade Rating, then
the Company and the Restricted Subsidiaries shall thereafter again be subject
to the Suspended Covenants under this Indenture with respect to future events,
including, without limitation, a proposed transaction described in clause (2) above.  The Company shall provide the Trustee with
prompt written notice of the occurrence of a Covenant Suspension Event and any
Reversion Date.


 


(c)           Upon the occurrence of a
Covenant Suspension Event, the amount of Excess Proceeds from Net Cash Proceeds
shall be reset at zero.


 


(d)           In the event of any
reinstatement of the Suspended Covenants pursuant to Section 4.14(b), no
action taken or omitted to be taken by the Company or any of its Restricted
Subsidiaries prior to such reinstatement will give rise to a Default or Event of
Default under this Indenture with respect to any Securities; provided that (1) with respect to
Restricted Payments made after any such reinstatement, the amount of Restricted
Payments made shall be calculated as though Section 4.04 had been in
effect prior to, but not during the Suspension Period, provided that any Subsidiaries designated
as Unrestricted Subsidiaries during the Suspension Period shall automatically
become Restricted Subsidiaries on the Reversion Date (subject to the Company’s
right to subsequently designate them as Unrestricted Subsidiaries in compliance
with Section 4.04 and the definition of “Unrestricted Subsidiary”
hereunder) and (2) all Indebtedness Incurred, or Disqualified Stock or
Preferred Stock issued, during the Suspension Period shall be classified to
have been Incurred or issued pursuant to clause (iii) of Section 4.03(b).


 


(e)           The Company shall deliver
promptly to the Trustee an Officers’ Certificate notifying it of any Covenant
Suspension Event, any Reversion Date or facts or events that would require the
reinstatement of Suspended Covenants under this Section 4.14.


 


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ARTICLE 5


 


SUCCESSOR COMPANY


 


SECTION 5.01.               When
Company May Merge or Transfer Assets. 
The Company shall not consolidate or merge with or into or wind up into
(whether or not the Company is the surviving corporation), or sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of its
properties or assets in one or more related transactions to, any Person unless:


 


(i)      the Company is the surviving corporation or the Person formed
by or surviving any such consolidation or merger (if other than the Company) or
to which such sale, assignment, transfer, lease, conveyance or other
disposition shall have been made is a corporation, partnership or limited
liability company organized or existing under the laws of the United States, any
state thereof, the District of Columbia, or any territory thereof (the Company
or such Person, as the case may be, being herein called the “Successor
Company”);


 


(ii)     the
Successor Company (if other than the Company) expressly assumes all the
obligations of the Company under this Indenture and the Securities pursuant to
supplemental indentures or other documents or instruments;


 


(iii)    immediately
after giving effect to such transaction (and treating any Indebtedness which
becomes an obligation of the Successor Company or any of its Restricted
Subsidiaries as a result of such transaction as having been Incurred by the
Successor Company or such Restricted Subsidiary at the time of such
transaction) no Default or Event of Default shall have occurred and be continuing;


 


(iv)    immediately
after giving pro forma effect to such transaction, as if such transaction had
occurred at the beginning of the applicable four-quarter period, either


 


(A)          the Successor Company would be permitted to Incur at least
$1.00 of additional Indebtedness pursuant to Section 4.03(a); or


 


(B)           the
Fixed Charge Coverage Ratio for the Successor Company and its Restricted
Subsidiaries would be greater than such ratio for the Company and its
Restricted Subsidiaries immediately prior to such transaction; and


 


(v)     the Company shall have delivered to the Trustee an Officers’
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger or transfer and such supplemental indentures (if any) comply with this
Indenture.


 


The
Successor Company (if other than the Company) shall succeed to, and be
substituted for, the Company under this Indenture and the Securities, and the
Company shall automatically be released and discharged from its obligations
under this Indenture and the Securities. 
Notwithstanding the foregoing clauses (iii) and (iv) of
this Section 5.01, (a) the Company or any Restricted Subsidiary may
consolidate with, merge into or sell, assign, transfer, lease, 


 


71

















 


convey
or otherwise dispose of all or part of its properties and assets to the Company
or to another Restricted Subsidiary, and (b) the Company may merge or
consolidate with an Affiliate incorporated or organized solely for the purpose
of reincorporating or reorganizing the Company in another state of the United
States, the District of Columbia or any territory of the United States so long
as the amount of Indebtedness of the Company and its Restricted Subsidiaries is
not increased thereby (any transaction described in this sentence, a “Specified
Merger/Transfer Transaction”).


 


Notwithstanding
the foregoing, nothing in this covenant shall prevent the Transactions, which
need not comply with this covenant.


 


ARTICLE 6


 


DEFAULTS AND REMEDIES


 


SECTION 6.01.               Events
of Default.  An “Event of Default”
occurs if:


 


(a)           the
Company defaults in any payment of interest on any Security when the same
becomes due and payable, and such default continues for a period of
30 days,


 


(b)           the Company defaults in the payment
of principal or premium, if any, of any Security when due at its Stated
Maturity, upon optional redemption, upon required repurchase, upon declaration
or otherwise,


 


(c)           the Company fails to comply with its
obligations under Section 5.01,


 


(d)           the Company or any of its Restricted
Subsidiaries fails to comply with any of its obligations under the covenants
set forth in Sections 3.02 and 4.08 (in each case other than a failure to
purchase Securities when required under Sections 3.02 and 4.08) and such
failure continues for 30 days after receipt of a related Notice of Default as
specified below,


 


(e)           the Company or any of its Restricted
Subsidiaries fails to comply with any of its agreements in the Securities or
this Indenture (other than those referred to in (a), (b), (c), or (d) above)
and such failure continues for 60 days after receipt of a related Notice
of Default as specified below,


 


(f)            the Company or any Significant
Subsidiary fails to pay any Indebtedness (other than Indebtedness owing to the
Company or a Restricted Subsidiary of the Company) within any applicable grace
period after final maturity or the acceleration of any such Indebtedness by the
holders thereof because of a default, in each case, if the total amount of such
Indebtedness unpaid or accelerated exceeds $20 million or its foreign
currency equivalent,


 


(g)           the Company or any Significant
Subsidiary of the Company pursuant to or within the meaning of any Bankruptcy
Law:


 


72

















 


(i)            commences a voluntary case;


 


(ii)           consents
to the entry of an order for relief against it in an involuntary case;


 


(iii)          consents
to the appointment of a Custodian of it or for any substantial part of its
property; or


 


(iv)          makes
a general assignment for the benefit of its creditors or takes any comparable
action under any foreign laws relating to insolvency,


 


(h)           a
court of competent jurisdiction enters an order or decree under any Bankruptcy
Law that:


 


(i)            is for relief against the Company or any Significant
Subsidiary of the Company in an involuntary case;


 


(ii)           appoints
a Custodian of the Company or any Significant Subsidiary of the Company or for
any substantial part of its property; or


 


(iii)          orders
the winding up or liquidation of the Company or any Significant Subsidiary of
the Company;


 


or
any similar relief is granted under any foreign laws and the order or decree
remains unstayed and in effect for 90 days, or


 


(i)            the
Company or any Significant Subsidiary fails to pay final and non-appealable
judgments aggregating in excess of $20 million or its foreign currency
equivalent (net of any amounts which are covered by enforceable insurance
policies issued by solvent carriers), which judgments are not discharged,
waived or stayed for a period of 60 days following the entry thereof.


 


The
foregoing shall constitute Events of Default whatever the reason for any such
Event of Default and whether it is voluntary or involuntary or is effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body.


 


The
term “Bankruptcy Law” means Title 11, United States Code, or any
similar Federal or state law for the relief of debtors.  The term “Custodian” means any
receiver, trustee, assignee, liquidator, custodian or similar official under
any Bankruptcy Law.


 


A
Default under clause (c), (d) or (e) above shall not constitute
an Event of Default until the Trustee notifies the Company in writing or the
Holders of at least 25% in principal amount of the outstanding Securities
notify the Company and the Trustee in writing of the Default and, in the case
of clause (d) or (e), the Company does not cure such Default within the
time specified in clause (d) or (e) above after receipt of such
notice.  Such notice must specify the
Default, demand that it be remedied and state that such notice is a “Notice
of Default.”  The 


 


73

















 


Company
shall deliver to the Trustee, within thirty (30) days after the occurrence
thereof, written notice of any event which is, or with the giving of notice or
the lapse of time or both would become, an Event of Default, its status and
what action the Company is taking or proposes to take with respect thereto.


 


SECTION 6.02.               Acceleration.  If an Event of Default (other than an Event
of Default specified in Section 6.01(g) or (h) with respect to
the Company) occurs and is continuing, the Trustee by written notice to the
Company or the Holders of at least 25% in principal amount of outstanding Securities
by written notice to the Company and the Trustee, may declare the principal of,
premium, if any, and accrued but unpaid interest on all the Securities to be
due and payable.  Upon such a
declaration, such principal and interest shall be due and payable
immediately.  If an Event of Default
specified in Section 6.01(g) or (h) with respect to the Company
occurs, the principal of, premium, if any, and interest on all the Securities
shall ipso facto become and be immediately due and payable without any declaration
or other act on the part of the Trustee or any Holders.  The Holders of a majority in principal amount
of the Securities by notice to the Trustee may rescind an acceleration and its
consequences if the rescission would not conflict with any judgment or decree
and if all existing Events of Default have been cured or waived except
nonpayment of principal or interest that has become due solely because of
acceleration.  No such rescission shall
affect any subsequent Default or impair any right consequent thereto.


 


In
the event of any Event of Default specified in Section 6.01(f), such Event
of Default and all consequences thereof (excluding, however, any resulting
payment default) shall be annulled, waived and rescinded, automatically and
without any action by the Trustee or the Holders of the Securities, if within
20 days after such Event of Default arose the Company delivers an Officers’
Certificate to the Trustee stating that (x) the Indebtedness or guarantee
that is the basis for such Event of Default has been discharged or (y) the
holders thereof have rescinded or waived the acceleration, notice or action (as
the case may be) giving rise to such Event of Default or (z) the default
that is the basis for such Event of Default has been cured, it being understood
that in no event shall an acceleration of the principal amount of the
Securities as described above be annulled, waived or rescinded upon the
happening of any such events.


 


SECTION 6.03.               Other
Remedies.  If an Event of Default
occurs and is continuing, the Trustee may pursue any available remedy at law or
in equity to collect the payment of principal of or interest on the Securities
or to enforce the performance of any provision of the Securities or this
Indenture.


 


The
Trustee may maintain a proceeding even if it does not possess any of the
Securities or does not produce any of them in the proceeding.  A delay or omission by the Trustee or any
Holder in exercising any right or remedy accruing upon an Event of Default
shall not impair the right or remedy or constitute a waiver of or acquiescence
in the Event of Default.  No remedy is
exclusive of any other remedy.  All
available remedies are cumulative to the extent permitted by law.


 


SECTION 6.04.               Waiver
of Past Defaults.  Provided the
Securities are not then due and payable by reason of a declaration of
acceleration, the Holders of a majority in principal amount of the Securities
by notice to the Trustee may waive an existing Default or Event of Default 


 


74

















 


and
its consequences except (a) a Default or Event of Default in the payment
of the principal of or interest on a Security or (b) a Default or Event of
Default in respect of a provision that under Section 9.02 cannot be
amended without the consent of each Holder affected.  When a Default is waived, 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 consequent right.


 


SECTION 6.05.               Control
by Majority.  The Holders of a
majority in principal amount of the Securities then outstanding may direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee or of exercising any trust or power conferred on the Trustee.  However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture or, subject to Section 7.01,
that the Trustee determines is unduly prejudicial to the rights of any other
Holder or that would involve the Trustee in personal liability; provided, however,
that the Trustee may take any other action deemed proper by the Trustee that is
not inconsistent with such direction. 
Prior to taking any action under this Indenture, the Trustee shall be
entitled to indemnification satisfactory to it in its sole discretion against
all losses and expenses caused by taking or not taking such action.


 


SECTION 6.06.               Limitation
on Suits.


 


(a)           Except to enforce
the right to receive payment of principal, premium, if any, or interest when
due, no Holder may pursue any remedy with respect to this Indenture or the
Securities unless:


 


(i)            the Holder gives to the Trustee written notice stating
that an Event of Default is continuing;


 


(ii)           the
Holders of at least 25% in principal amount of the Securities then outstanding
make a written request to the Trustee to pursue the remedy;


 


(iii)          such
Holder or Holders offer to the Trustee security or indemnity reasonably
satisfactory to it against any loss, liability or expense;


 


(iv)          the
Trustee does not comply with the request within 60 days after receipt of the
request and the offer of security or indemnity; and


 


(v)           the
Holders of a majority in principal amount of the Securities do not give the
Trustee a direction inconsistent with the request during such 60-day period.


 


(b)           A Holder may not use
this Indenture to prejudice the rights of another Holder or to obtain a
preference or priority over another Holder.


 


SECTION 6.07.               Rights
of the Holders to Receive Payment. 
Notwithstanding any other provision of this Indenture, the right of any
Holder to receive payment of principal of and interest on the Securities held
by such Holder, on or after the respective due dates expressed or provided for
in the Securities, 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.


 


75

















 


SECTION 6.08.               Collection
Suit by Trustee.  If an Event of
Default specified in Section 6.01(a) or (b) occurs and is
continuing, the Trustee may recover judgment in its own name and as trustee of
an express trust against the Company or any other obligor on the Securities for
the whole amount then due and owing (together with interest on overdue
principal and (to the extent lawful) on any unpaid interest at the rate
provided for in the Securities) and the amounts provided for in Section 7.07.


 


SECTION 6.09.               Trustee
May File Proofs of Claim.  The
Trustee may file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including
any claim for reasonable compensation, expenses disbursements and advances of
the Trustee (including counsel, accountants, experts or such other
professionals as the Trustee deems reasonably necessary, advisable or
appropriate)) and the Holders allowed in any judicial proceedings relative to
the Company or any Guarantor, their creditors or their property, shall be
entitled to participate as a member, voting or otherwise, of any official
committee of creditors appointed in such matters and, unless prohibited by law
or applicable regulations, may vote on behalf of the Holders in any election of
a trustee in bankruptcy or other Person performing similar functions, and any
Custodian in any such judicial proceeding is hereby authorized by each Holder
to make 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 it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and its counsel, and any
other amounts due the Trustee under Section 7.07.


 


SECTION 6.10.               Priorities.  If the Trustee collects any money or property
pursuant to this Article 6, it shall pay out the money or property in the
following order:


 


FIRST:  to the
Trustee for amounts due under Section 7.07;


 


SECOND:  to
Holders for amounts due and unpaid on the Securities for principal, premium, if
any, and interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Securities for principal and
interest, respectively; and


 


THIRD:  to the
Company or, to the extent the Trustee collects any amount for any Guarantor, to
such Guarantor.


 


The
Trustee, upon prior written notice to the Company and the Guarantors, may fix a
record date and payment date for any payment to the Holders pursuant to this Section 6.10.  At least 15 days before such record
date, the Trustee shall send to each Holder and the Company a notice that
states the record date, the payment date and amount to be paid.


 


SECTION 6.11.               Undertaking
for Costs.  In any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as Trustee, a court 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 and expenses,
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 pursuant to 


 


76

















 


Section 6.07
or a suit by Holders of more than 10% in principal amount of the Securities
then outstanding.


 


SECTION 6.12.               Waiver
of Stay or Extension Laws.  Neither
the Company nor any Guarantor (to the extent it may lawfully do so) shall at
any time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, which may affect the covenants or the performance
of this Indenture; and the Company and each Guarantor (to the extent that it
may lawfully do so) hereby expressly waive all benefit or advantage of any such
law, and shall not hinder, delay or impede the execution of any power herein
granted to the Trustee, but shall suffer and permit the execution of every such
power as though no such law had been enacted.


 


ARTICLE 7


 


TRUSTEE


 


SECTION 7.01.               Duties
of Trustee.


 


(a)           If an Event of
Default has occurred and is continuing, the Trustee shall exercise the rights
and powers vested in it by this Indenture and use the same degree of care and
skill in their exercise as a prudent person would exercise or use under the
circumstances in the conduct of such person’s own affairs.


 


(b)           Except during the continuance of an
Event of Default:


 


(i)            the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture and no implied
covenants or obligations shall be read into this Indenture against the Trustee;
and


 


(ii)           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, in the case of certificates or opinions required by any
provision hereof to be provided to it, the Trustee shall examine the certificates
and opinions to determine whether or not they conform to the form requirements
of this Indenture.


 


(c)           The Trustee may not
be relieved from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct, except that:


 


(i)            this paragraph does not limit the effect of
paragraph (b) of this Section 7.01;


 


(ii)           the
Trustee shall not be liable for any error of judgment made in good faith by a
Trust Officer unless it is proved that the Trustee was negligent in ascertaining
the pertinent facts;


 


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(iii)          the
Trustee shall not be liable with respect to any action it takes or omits to
take in good faith in accordance with a direction received by it pursuant to Section 6.05;
and


 


(iv)          no
provision of this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur financial liability in the performance of any of its
duties hereunder or in the exercise of any of its rights or powers.


 


(d)           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)           The Trustee shall not be liable for
interest on any money received by it except as the Trustee may agree in writing
with the Company.


 


(f)            Money held in trust by the Trustee
need not be segregated from other funds except to the extent required by law.


 


(g)           Every provision of this Indenture
relating to the conduct or affecting the liability of or affording protection
to the Trustee shall be subject to the provisions of this Section 7.01
and, from the date on which this Indenture is qualified under the TIA, to the
provisions of the TIA.


 


SECTION 7.02.               Rights
of Trustee.


 


(a)           The Trustee may
conclusively rely on 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 shall not be liable
for any action it takes or omits to take in good faith in reliance on the
Officers’ Certificate or Opinion of Counsel.


 


(c)           The Trustee may act through agents
and shall not be responsible for the misconduct or negligence of any agent
appointed with due care.


 


(d)           The Trustee shall not be liable for
any action it takes or omits to take in good faith which it reasonably believes
to be authorized or within its rights or powers; provided, however, that the Trustee’s conduct does not
constitute willful misconduct or negligence.


 


(e)           The Trustee may consult with counsel
of its own selection and the advice or opinion of counsel with respect to legal
matters relating to this Indenture and the Securities shall be full and
complete authorization and protection from liability in respect of any action
taken, omitted or suffered by it hereunder in good faith and in accordance with
the advice or opinion of such counsel.


 


(f)            The Trustee shall not be bound to
make any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, 


 


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consent,
order, approval, bond, debenture, note or other paper or document unless
requested in writing to do so by the Holders of not less than a majority in
principal amount of the Securities at the time outstanding, 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 shall be entitled to examine the books,
records and premises of the Company, personally or by agent or attorney, at the
expense of the Company and shall incur no liability of any kind by reason of
such inquiry or investigation.


 


(g)           The Trustee shall be under no
obligation to exercise any of the rights or powers vested in it by this
Indenture at the request or direction of any of the Holders pursuant to this
Indenture, unless such Holders shall have offered to the Trustee security or
indemnity satisfactory to the Trustee against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction.


 


(h)           The rights, privileges, protections,
immunities and benefits given to the Trustee, including its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each
of its capacities hereunder, and each agent, custodian and other Person
employed to act hereunder.


 


(i)            In the event the Company is required
to pay Additional Interest, the Company will provide written notice to the
Trustee of the Company’s obligation to pay Additional Interest no later than 15
days prior to the next Interest Payment Date, which notice shall set forth the
amount of the Additional Interest to be paid by the Company.  The Trustee shall not at any time be under
any duty or responsibility to any Holders to determine whether the Additional
Interest is payable and the amount thereof.


 


(j)            In the event the Company is required
to pay Special Interest, the Company will provide written notice to the Trustee
of the Company’s obligation to pay Special Interest no later than 15 days prior
to the next Interest Payment Date, which notice shall set forth the amount of
interest (including the Special Interest) to be paid by the Company.  The Trustee shall not at any time be under
any duty or responsibility to any Holders to determine whether Special Interest
is payable or the amount thereof.


 


SECTION 7.03.               Individual
Rights of Trustee.  The Trustee in
its individual or any other capacity may become the owner or pledgee of
Securities and may otherwise deal with the Company or its Affiliates with the
same rights it would have if it were not Trustee.  Any Paying Agent or Registrar may do the same
with like rights.  However, the Trustee
must comply with Sections 7.10 and 7.11.


 


SECTION 7.04.               Trustee’s
Disclaimer.  The Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of
this Indenture, any Guarantee or the Securities, it shall not be accountable
for the Company’s use of the proceeds from the Securities, and it shall not be
responsible for any statement of the Company or any Guarantor in this Indenture
or in any document issued in connection with the sale of the Securities or in
the Securities other than the Trustee’s certificate of authentication.  The Trustee shall not be charged with
knowledge of any Default or Event of Default under Sections 6.01(c), (d), (e), (f) or
(i) or of the identity of any Significant Subsidiary unless either (a) a
Trust Officer shall have actual knowledge 


 


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thereof
or (b) the Trustee shall have received notice thereof in accordance with Section 11.02
from the Company, any Guarantor or any Holder.


 


SECTION 7.05.               Notice
of Defaults.  If a Default occurs and
is continuing and if it is actually known to a Trust Officer, the Trustee shall
send to each Holder notice of the Default within the earlier of 90 days
after it occurs or 30 days after it is actually known to a Trust Officer
or written notice of it is received by the Trustee.  Except in the case of a Default in the
payment of principal of, premium (if any) or interest on any Security, the
Trustee may withhold the notice if and so long as a committee of its Trust
Officers in good faith determines that withholding the notice is in the
interests of the Holders.


 


SECTION 7.06.               Reports
by Trustee to the Holders.  From the
date on which this Indenture is qualified under the TIA, as promptly as
practicable after each March 31 beginning with the March 31 following
the date of this Indenture, and in any event within 12 months of the last such
report, the Trustee shall send to each Holder a brief report dated as of such March 31
that complies with Section 313(a) of the TIA if and to the extent
required thereby.  From the date on which
this Indenture is qualified under the TIA, the Trustee shall also comply with Section 313(b)(2) of
the TIA.


 


A
copy of each report at the time of its delivery to the Holders shall be filed
with the SEC and each stock exchange (if any) on which the Securities are
listed.  The Company agrees to notify
promptly the Trustee whenever the Securities become listed on any stock exchange
and of any delisting thereof.


 


SECTION 7.07.               Compensation
and Indemnity.  The Company shall pay
to the Trustee from time to time reasonable compensation for its services (it
being understood all amounts set forth in the fee letter dated January 20,
2010 between the Company and the Trustee shall be deemed reasonable).  The Trustee’s compensation shall not be
limited by any law on compensation of a trustee of an express trust.  The Company shall reimburse the Trustee upon
request for all reasonable out-of-pocket expenses incurred or made by it, including
costs of collection, in addition to the compensation for its services.  Such expenses shall include the reasonable
compensation and expenses, disbursements and advances of the Trustee’s agents,
counsel, accountants and experts.  The
Company and each Guarantor, jointly and severally shall indemnify the Trustee
against any and all loss, liability, claim, damage or expense (including
reasonable attorneys’ fees and expenses) incurred by or in connection with the
acceptance or administration of this trust and the performance of its duties
hereunder, including the costs and expenses of enforcing this Indenture or
Guarantee against the Company or a Guarantor (including this Section 7.07)
and defending itself against or investigating any claim (whether asserted by
the Company, any Guarantor, any Holder or any other Person).  The Trustee shall notify the Company of any
claim for which it may seek indemnity promptly upon obtaining actual knowledge
thereof; provided, however, that any failure so to notify
the Company shall not relieve the Company or any Guarantor of its indemnity
obligations hereunder.  The Company shall
defend the claim and the indemnified party shall provide reasonable cooperation
at the Company’s expense in the defense. 
Such indemnified parties may have separate counsel and the Company and
the Guarantors, as applicable, shall pay the fees and expenses of such counsel;
provided, however, that the Company shall not be
required to pay such fees and expenses if it assumes such indemnified parties’ 


 


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defense
and, in such indemnified parties’ reasonable judgment, there is no conflict of
interest between the Company and the Guarantors, as applicable, and such
parties in connection with such defense. 
The Company need not reimburse any expense or indemnify against any
loss, liability or expense incurred by an indemnified party through such party’s
own willful misconduct, negligence or bad faith.


 


To
secure the Company’s and the Guarantors’ payment obligations in this Section 7.07,
the Trustee shall have a Lien prior to the Securities on all money or property
held or collected by the Trustee other than money or property held in trust to
pay principal of and interest on particular Securities.


 


The
Company’s and the Guarantors’ payment obligations pursuant to this Section 7.07
shall survive the satisfaction or discharge of this Indenture, any rejection or
termination of this Indenture under any bankruptcy law or the resignation or
removal of the Trustee.  Without
prejudice to any other rights available to the Trustee under applicable law,
when the Trustee incurs expenses after the occurrence of a Default specified in
Section 6.01(g) or (h) with respect to the Company, the expenses
are intended to constitute expenses of administration under the Bankruptcy Law.


 


SECTION 7.08.               Replacement
of Trustee.


 


(a)           The Trustee may
resign at any time by so notifying the Company. 
The Holders of a majority in principal amount of the Securities may
remove the Trustee by so notifying the Trustee and may appoint a successor
Trustee.  The Company may remove the
Trustee if:


 


(i)            the Trustee fails to comply with Section 7.10;


 


(ii)           the
Trustee is adjudged bankrupt or insolvent;


 


(iii)          a
receiver or other public officer takes charge of the Trustee or its property;
or


 


(iv)          the
Trustee otherwise becomes incapable of acting.


 


If
the Trustee has or shall acquire a conflicting interest within the meaning of
the TIA, the Trustee shall either eliminate such interest or resign, to the extent
and in the manner provided by, and subject to the provisions of, the TIA and
this Indenture.


 


(b)           If the Trustee
resigns, is removed by the Company or by the Holders of a majority in principal
amount of the Securities and such Holders do not reasonably promptly appoint a
successor Trustee, or if a vacancy exists in the office of Trustee for any
reason (the Trustee in such event being referred to herein as the retiring
Trustee), the Company shall promptly appoint a successor Trustee.


 


(c)           A successor Trustee shall deliver a
written acceptance of its appointment to the retiring Trustee and to the
Company.  Thereupon the resignation or
removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and 


 


81

















 


duties
of the Trustee under this Indenture.  The
successor Trustee shall mail a notice of its succession to the Holders.  The retiring Trustee shall promptly transfer
all property held by it as Trustee to the successor Trustee, subject to the
Lien provided for in Section 7.07.


 


(d)           If a successor Trustee does not take
office within 60 days after the retiring Trustee resigns or is removed, the
retiring Trustee or the Holders of 10% in principal amount of the Securities
may petition at the expense of the Company any court of competent jurisdiction
for the appointment of a successor Trustee.


 


(e)           If the Trustee fails to comply with Section 7.10,
unless the Trustee’s duty to resign is stayed as provided in Section 310(b) of
the TIA, any Holder who has been a bona fide holder of a Security for at least
six months may petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of a successor Trustee.


 


(f)            Notwithstanding the replacement of
the Trustee pursuant to this Section, the Company’s obligations under Section 7.07
shall continue for the benefit of the retiring Trustee.


 


SECTION 7.09.               Successor
Trustee by Merger.  If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee.


 


In
case at the time such successor or successors by merger, conversion or
consolidation to the Trustee shall succeed to the trusts created by this
Indenture any of the Securities shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Securities so
authenticated; and in case at that time any of the Securities shall not have
been authenticated, any successor to the Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in the name of
the successor to the Trustee; and in all such cases such certificates shall
have the full force which it is anywhere in the Securities or in this Indenture
provided that the certificate of the Trustee shall have.


 


SECTION 7.10.               Eligibility;
Disqualification.  The Trustee shall
at all times satisfy the requirements of Section 310(a) of the
TIA.  The Trustee shall have a combined
capital and surplus of at least $100,000,000 as set forth in its most recent published
annual report of condition.  The Trustee
shall comply with Section 310(b) of the TIA, subject to its right to
apply for a stay of its duty to resign under the penultimate paragraph of Section 310(b) of
the TIA; provided, however, that there shall be excluded from
the operation of Section 310(b)(1) of the TIA any series of
securities issued under this Indenture and any indenture or indentures under
which other securities or certificates of interest or participation in other
securities of the Company are outstanding if the requirements for such
exclusion set forth in Section 310(b)(1) of the TIA are met.


 


SECTION 7.11.               Preferential
Collection of Claims Against Company. 
The Trustee shall comply with Section 311(a) of the TIA,
excluding any creditor relationship listed in 


 


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Section 311(b) of
the TIA.  A Trustee who has resigned or
been removed shall be subject to Section 311(a) of the TIA to the
extent indicated.


 


ARTICLE 8


 


DISCHARGE OF INDENTURE; DEFEASANCE


 


SECTION 8.01.               Discharge
of Liability on Securities; Defeasance. 
This Indenture shall be discharged and shall cease to be of further
effect (except as to surviving rights of registration or transfer or exchange
of Securities, as expressly provided for in this Indenture) as to all
outstanding Securities:


 


(a)           when
(i) all the Securities theretofore authenticated and delivered (other than
Securities pursuant to Section 2.08 which have been replaced or paid and
Securities for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to the
Company or discharged from such trust) have been delivered to the Trustee for
cancellation or (ii) all of the Securities (a) have become due and payable,
(b) will become due and payable at their stated maturity within one year
or (c) if redeemable at the option of the Company, are to be called for
redemption within one year under arrangements satisfactory to the Trustee for
the giving of notice of redemption by the Trustee in the name, and at the
expense, of the Company, and the Company has irrevocably deposited or caused to
be deposited with the Trustee funds in cash in U.S. Dollars, U.S. Government
Obligations or a combination thereof in an amount sufficient in the written
opinion of a firm of independent public accountants delivered to the Trustee
(which delivery shall only be required if U.S. Government Obligations have been
so deposited) to pay and discharge the entire Indebtedness on the Securities
not theretofore delivered to the Trustee for cancellation, for principal of,
premium, if any, and interest on the Securities to the date of deposit together
with irrevocable instructions from the Company directing the Trustee to apply
such funds to the payment thereof at maturity or redemption, as the case may
be;


 


(b)           the Company and/or the Guarantor(s) (if
any) have paid all other sums payable under this Indenture; and


 


(c)           the Company has delivered to the
Trustee an Officers’ Certificate and an Opinion of Counsel stating that all
conditions precedent under this Indenture relating to the satisfaction and
discharge of this Indenture have been complied with.


 


Subject
to Sections 8.01(c) and 8.02, the Company at any time may terminate (i) all
of its obligations under the Securities and this Indenture (with respect to
such Securities) (“legal defeasance option”) or (ii) its
obligations under Sections 4.02, 4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.10,
4.11 and 4.12 and the operation of Section 5.01 and Sections 6.01(c),
6.01(d), 6.01(e) (with respect to any Default under Sections 4.02, 4.03,
4.04, 4.05, 4.06, 4.07, 4.10, 4.11 and 4.12), 6.01(f), 6.01(g) (with
respect to Significant Subsidiaries of the Company only), 6.01(h) (with
respect to Significant Subsidiaries of the Company only) and 6.01(i) (“covenant
defeasance option”).  The Company may
exercise its legal defeasance option notwithstanding its prior exercise of its
covenant defeasance option.


 


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If
the Company exercises its legal defeasance option, payment of the Securities so
defeased may not be accelerated because of an Event of Default.  If the Company exercises its covenant
defeasance option, payment of the Securities so defeased may not be accelerated
because of an Event of Default specified in Section 6.01(c), 6.01(d),
6.01(e), 6.01(f), 6.01(g) (with respect to Significant Subsidiaries of the
Company only), 6.01(h) (with respect to Significant Subsidiaries of the
Company only) or 6.01(i) (with respect to Significant Subsidiaries of the
Company only) or because of the failure of the Company to comply with Section 5.01.


 


Upon
satisfaction of the conditions set forth herein and upon request of the
Company, the Trustee shall acknowledge in writing the discharge of those
obligations that the Company terminates.


 


(d)           Notwithstanding
clauses (a) and (b) above, the Company’s obligations in Sections
2.04, 2.05, 2.06, 2.07, 2.08, 2.09, 7.07 and 7.08 and in this Article 8
shall survive until the Securities have been paid in full.  Thereafter, the Company’s obligations in
Sections 7.07, 8.05 and 8.06 shall survive such satisfaction and discharge.


 


SECTION 8.02.               Conditions
to Defeasance.


 


(a)           The Company may
exercise its legal defeasance option or its covenant defeasance option only if:


 


(i)            the Company irrevocably deposits in trust with the
Trustee cash in U.S. Dollars, U.S. Government Obligations or a combination
thereof in an amount sufficient or U.S. Government Obligations, the principal
of and the interest on which will be sufficient, or a combination thereof
sufficient, to pay the principal of, and premium (if any) and interest on the
applicable Securities when due at maturity or redemption, as the case may be,
including interest thereon to maturity or such redemption date;


 


(ii)           the
Company delivers to the Trustee a certificate from a nationally recognized firm
of independent accountants expressing their opinion that the payments of
principal and interest when due and without reinvestment on the
deposited U.S. Government Obligations 
plus any deposited money without investment will provide cash at such
times and in such amounts as will be sufficient to pay principal, premium, if
any, and interest when due on all the Securities to maturity or redemption, as
the case may be;


 


(iii)          91 days
pass after the deposit is made and during the 91-day period no Default
specified in Section 6.01(g) or (h) with respect to the Company
occurs which is continuing at the end of the period;


 


(iv)          the
deposit does not constitute a default under any other agreement binding on the
Company;


 


(v)           the
Company delivers to the Trustee an Opinion of Counsel to the effect that the
trust resulting from the deposit does not constitute, or is qualified as, a
regulated investment company under the Investment Company Act of 1940;


 


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(vi)          in
the case of the legal defeasance option, the Company shall have delivered to
the Trustee an Opinion of Counsel stating that (1) the Company has
received from, or there has been published by, the Internal Revenue Service a
ruling, or (2) since the date of this Indenture 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, the Holders will not
recognize income, gain or loss for Federal income tax purposes as a result of
such deposit and 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 deposit and defeasance had not occurred;


 


(vii)         in
the case of the covenant defeasance option, the Company shall have delivered to
the Trustee an Opinion of Counsel to the effect that the Holders will not
recognize income, gain or loss for Federal income tax purposes as a result of
such deposit and 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 deposit and defeasance had not occurred; and


 


(viii)        the
Company delivers to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent to the defeasance and
discharge of the Securities to be so defeased and discharged as contemplated by
this Article 8 have been complied with.


 


Notwithstanding
the foregoing, the Opinion of Counsel required by the clause (vi) above
need not be delivered if all Securities not theretofore delivered to the
Trustee for cancellation (x) have become due and payable or (y) will
become due and payable at their Stated Maturity within one year under
arrangements satisfactory to the Trustee for the giving of notice of redemption
by the Trustee in the name, and at the expense, of the Company.


 


(b)           Before or after a
deposit, the Company may make arrangements satisfactory to the Trustee for the
redemption of such Securities at a future date in accordance with Article 3.


 


SECTION 8.03.               Application
of Trust Money.  The Trustee shall
hold in trust money or U.S. Government Obligations (including proceeds thereof)
deposited with it pursuant to this Article 8.  It shall apply the deposited money and the
money from U.S. Government Obligations through each Paying Agent and in
accordance with this Indenture to the payment of principal of and interest on
the Securities so discharged or defeased.


 


SECTION 8.04.               Repayment
to Company.  Each of the Trustee and
each Paying Agent shall promptly turn over to the Company upon request any
money or U.S. Government Obligations held by it as provided in this Article 8
which, in the written opinion of a nationally recognized firm of independent
public accountants delivered to the Trustee (which delivery shall only be
required if U.S. Government Obligations have been so deposited), are in excess
of the amount thereof which would then be required to be deposited to effect an
equivalent discharge or defeasance in accordance with this Article 8.


 


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Subject
to any applicable abandoned property law, the Trustee and each Paying Agent
shall pay to the Company upon written request any money held by them for the
payment of principal or interest that remains unclaimed for two years, and,
thereafter, Holders entitled to the money must look to the Company for payment as
general creditors, and the Trustee and each Paying Agent shall have no further
liability with respect to such monies.


 


SECTION 8.05.               Indemnity
for U.S. Government Obligations.  The
Company shall pay and shall indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against deposited U.S. Government
Obligations or the principal and interest received on such U.S. Government
Obligations.


 


SECTION 8.06.               Reinstatement.  If the Trustee or any Paying Agent is unable
to apply any money or U.S. Government Obligations in accordance with this Article 8
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 obligations under this Indenture and the
Securities so discharged or defeased shall be revived and reinstated as though
no deposit had occurred pursuant to this Article 8 until such time as the
Trustee or any Paying Agent is permitted to apply all such money or U.S.
Government Obligations in accordance with this Article 8; provided,
however, that, if the Company has made any payment of principal of
or interest on, any such Securities because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Securities to receive such payment from the money or U.S. Government
Obligations held by the Trustee or any Paying Agent.


 


ARTICLE 9


 


AMENDMENTS AND WAIVERS


 


SECTION 9.01.               Without
Consent of the Holders.  The Company
and the Trustee may amend this Indenture or the Securities without notice to or
consent of any Holder:


 


(i)            to cure any ambiguity, omission, defect or inconsistency;


 


(ii)           to
comply with Article 5;


 


(iii)          to
provide for uncertificated Securities in addition to or in place of Definitive
Securities, including, in the event that PIK Notes are issued in certificated
form, to make appropriate amendments to this Indenture to reflect an
appropriate minimum denomination of certificated PIK Notes and establish minimum
redemption amounts for certificated PIK Notes; provided, however, that the uncertificated
Securities are issued in registered form for purposes of Section 163(f) of
the Code or in a manner such that the uncertificated Securities are described
in Section 163(f)(2)(B) of the Code;


 


(iv)          to
add additional Guarantees with respect to the Securities or to secure the
Securities;


 


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(v)           to
add to the covenants of the Company for the benefit of the Holders or to
surrender any right or power herein conferred upon the Company;


 


(vi)          to
comply with any requirement of the SEC in connection with qualifying or
maintaining the qualification of, this Indenture under the TIA;


 


(vii)         to
make any change that does not adversely affect the rights of any Holder; or


 


(viii)        to
provide for the issuance of the Exchange Securities or Additional Securities,
which shall have terms substantially identical in all material respects to the
Initial Securities, and which shall be treated, together with any outstanding
Initial Securities, as a single issue of securities.


 


Upon
the request of the Company and the Guarantors accompanied by a resolution of
the Board of Directors of each of the Company and the Guarantors authorizing
the execution of any supplemental indenture entered into to effect any such
amendment, supplement or waiver, and upon receipt by the Trustee of the
documents described in Section 9.06, the Trustee shall join with the
Company and the Guarantors in the execution of such supplemental
indenture.  After an amendment under this
Section 9.01 becomes effective, the Company shall mail to Holders a notice
briefly describing such amendment.  The
failure to give such notice to all Holders, or any defect therein, shall not
impair or affect the validity of an amendment under this Section 9.01.


 


SECTION 9.02.               With
Consent of the Holders.


 


(a)           The Company and the
Trustee may amend this Indenture or the Securities with the written consent of
the Holders of at least a majority in principal amount of the Securities then
outstanding voting as a single class (including consents obtained in connection
with a tender offer or exchange for the Securities).  However, without the consent of each Holder
of an outstanding Security affected, an amendment may not:


 


(i)            reduce the amount of Securities whose Holders must
consent to an amendment;


 


(ii)           reduce
the rate of or extend the time for payment of interest on any Security;


 


(iii)          reduce
the principal of or change the Stated Maturity of any Security;


 


(iv)          reduce
the premium payable upon the redemption of any Security or change the time at
which any Security may be redeemed in accordance with Article 3;


 


(v)           make
any Security payable in money other than that stated in such Security;


 


87






 


 










 


(vi)          impair
the right of any Holder to receive payment of, principal of, premium, if any,
and interest on such Holder’s Securities on or after the date due or to
institute suit for the enforcement of any payment on or with respect to such
Holder’s Securities;


 


(vii)         make
any change in Section 6.04 or 6.07 or the second sentence of this Section 9.02(a);
or


 


(viii)        expressly
subordinate any Security or otherwise modify the ranking thereof to any other
Indebtedness of the Company.


 


It
shall not be necessary for the consent of the Holders under this Section 9.02
to approve the particular form of any proposed amendment, but it shall be
sufficient if such consent approves the substance thereof.


 


(b)           After an amendment
under this Section 9.02 becomes effective, the Company shall mail to the
Holders a notice briefly describing such amendment.  The failure to give such notice to all
Holders, or any defect therein, shall not impair or affect the validity of an
amendment under this Section 9.02.


 


SECTION 9.03.               Compliance
with Trust Indenture Act.  From the
date on which this Indenture is qualified under the TIA, every amendment,
waiver or supplement to this Indenture or the Securities shall comply with the
TIA as then in effect.


 


SECTION 9.04.               Revocation
and Effect of Consents and Waivers.


 


(a)           A consent to an
amendment or a waiver by a Holder of a Security shall bind the Holder and every
subsequent Holder of that Security or portion of the Security that evidences
the same debt as the consenting Holder’s Security, even if notation of the
consent or waiver is not made on the Security. 
However, any such Holder or subsequent Holder may revoke the consent or
waiver as to such Holder’s Security or portion of the Security if the Trustee
receives the notice of revocation before the date on which the Trustee receives
an Officers’ Certificate from the Company certifying that the requisite
principal amount of Securities have consented. 
After an amendment or waiver becomes effective, it shall bind every
Holder.  An amendment or waiver becomes
effective upon the (i) receipt by the Company or the Trustee of consents
by the Holders of the requisite principal amount of securities, (ii) satisfaction
of conditions to effectiveness as set forth in this Indenture and any indenture
supplemental hereto containing such amendment or waiver and (iii) execution
of such amendment or waiver (or supplemental indenture) by the Company and the
Trustee.


 


(b)           The Company may, but shall not be
obligated to, fix a record date for the purpose of determining the Holders
entitled to give their consent or take any other action described above or
required or permitted to be taken pursuant to this Indenture.  If a record date is fixed, then
notwithstanding the immediately preceding paragraph, those Persons who were
Holders at such record date (or their duly designated proxies), and only those
Persons, shall be entitled to give such consent or to revoke any consent
previously given or to take any such action, 


 


88

















 


whether
or not such Persons continue to be Holders after such record date.  No such consent shall be valid or effective
for more than 120 days after such record date.


 


SECTION 9.05.               Notation
on or Exchange of Securities.  If an
amendment, supplement or waiver changes the terms of a Security, the Company
may require the Holder of the Security to deliver it to the Trustee.  The Trustee may place an appropriate notation
on the Security regarding the changed terms and return it to the Holder.  Alternatively, if the Company or the Trustee
so determines, the Company in exchange for the Security shall issue and the
Trustee shall authenticate a new Security that reflects the changed terms.  Failure to make the appropriate notation or
to issue a new Security shall not affect the validity of such amendment,
supplement or waiver.


 


SECTION 9.06.               Trustee
to Sign Amendments.  The Trustee
shall sign any amendment, supplement or waiver authorized pursuant to this Article 9
if the amendment does not adversely affect the rights, duties, liabilities or
immunities of the Trustee.  If it does,
the Trustee may but need not sign it.  In
signing such amendment, the Trustee shall be entitled to receive indemnity
reasonably satisfactory to it and shall be provided with, and (subject to Section 7.01)
shall be fully protected in relying upon, an Officers’ Certificate and an
Opinion of Counsel stating that such amendment, supplement or waiver is
authorized or permitted by this Indenture and that such amendment, supplement
or waiver is the legal, valid and binding obligation of the Company and the
Guarantors, enforceable against them in accordance with its terms, subject to
customary exceptions, and complies with the provisions hereof (including Section 9.03).


 


SECTION 9.07.               Payment
for Consent.  Neither the Company nor
any Affiliate of the Company shall, directly or indirectly, pay or cause to be
paid any consideration, whether by way of interest, fee or otherwise, to any
Holder for or as an inducement to any consent, waiver or amendment of any of
the terms or provisions of this Indenture or the Securities unless such
consideration is offered to be paid to all Holders that so consent, waive or
agree to amend in the time frame set forth in solicitation documents relating
to such consent, waiver or agreement.


 


SECTION 9.08.               Additional
Voting Terms; Calculation of Principal Amount.  Except as provided in the second sentence of Section 9.02(a),
all Securities issued under this Indenture shall vote and consent together on
all matters (as to which any of such Securities may vote) as one class and no
series of Securities will have the right to vote or consent as a separate class
on any matter.  Determinations as to
whether Holders of the requisite aggregate principal amount of Securities have
concurred in any direction, waiver or consent shall be made in accordance with
this Article 9 and Section 2.14.


 


ARTICLE 10


 


GUARANTEES


 


SECTION 10.01.             Guarantees.


 


On
the Issue Date, Parent will be the only Guarantor.


 


89

















 


(a)           Each Guarantor
hereby jointly and severally, irrevocably and unconditionally guarantees, as a
primary obligor and not merely as a surety, to each Holder and to the Trustee
and its successors and assigns (i) the full and punctual payment when due,
whether at Stated Maturity, by acceleration, by redemption or otherwise, of all
obligations of the Company under this Indenture (including obligations to the
Trustee) and the Securities, whether for payment of principal of, premium, if
any, or interest on in respect of the Securities and all other monetary
obligations of the Company under this Indenture and the Securities and (ii) the
full and punctual performance within applicable grace periods of all other
obligations of the Company whether for fees, expenses, indemnification or
otherwise under this Indenture and the Securities (all the foregoing being
hereinafter collectively called the “Guaranteed Obligations”).  Each Guarantor further agrees that the
Guaranteed Obligations may be extended or renewed, in whole or in part, without
notice or further assent from each such Guarantor, and that each such Guarantor
shall remain bound under this Article 10 notwithstanding any extension or
renewal of any Guaranteed Obligation. 
Notwithstanding the foregoing, Parent is under no obligation to continue
such guarantee.


 


(b)           Each Guarantor waives presentation
to, demand of payment from and protest to the Company of any of the Guaranteed
Obligations and also waives notice of protest for nonpayment.  Each Guarantor waives notice of any default
under the Securities or the Guaranteed Obligations.  The obligations of each Guarantor hereunder
shall not be affected by (i) the failure of any Holder or the Trustee to
assert any claim or demand or to enforce any right or remedy against the
Company or any other Person under this Indenture, the Securities or any other
agreement or otherwise; (ii) any extension or renewal of this Indenture,
the Securities or any other agreement; (iii) any rescission, waiver,
amendment or modification of any of the terms or provisions of this Indenture,
the Securities or any other agreement; (iv) the release of any security
held by any Holder or the Trustee for the Guaranteed Obligations or any
Guarantor; (v) the failure of any Holder or Trustee to exercise any right
or remedy against any other guarantor of the Guaranteed Obligations; or (vi) any
change in the ownership of such Guarantor, except as provided in Section 10.02(b).


 


(c)           Each Guarantor hereby waives any
right to which it may be entitled to have its obligations hereunder divided
among the Guarantors, such that such Guarantor’s obligations would be less than
the full amount claimed.  Each Guarantor
hereby waives any right to which it may be entitled to have the assets of the
Company first be used and depleted as payment of the Company’s or such
Guarantor’s obligations hereunder prior to any amounts being claimed from or
paid by such Guarantor hereunder.  Each
Guarantor hereby waives any right to which it may be entitled to require that
the Company be sued prior to an action being initiated against such Guarantor.


 


(d)           Each Guarantor further agrees that
its Guarantee herein constitutes a guarantee of payment, performance and
compliance when due (and not a guarantee of collection) and waives any right to
require that any resort be had by any Holder or the Trustee to any security
held for payment of the Guaranteed Obligations.


 


(e)           Except as expressly set forth in
Sections 8.01(b), 10.02 and 10.06, the obligations of each Guarantor
hereunder shall not be subject to any reduction, limitation, impairment 


 


90

















 


or
termination for any reason, including any claim of waiver, release, surrender,
alteration or compromise, and shall not be subject to any defense of setoff,
counterclaim, recoupment or termination whatsoever or by reason of the
invalidity, illegality or unenforceability of the Guaranteed Obligations or
otherwise.  Without limiting the
generality of the foregoing, the obligations of each Guarantor herein shall not
be discharged or impaired or otherwise affected by the failure of any Holder or
the Trustee to assert any claim or demand or to enforce any remedy under this
Indenture, the Securities or any other agreement, by any waiver or modification
of any thereof, by any default, failure or delay, willful or otherwise, in the
performance of the obligations, or by any other act or thing or omission or
delay to do any other act or thing which may or might in any manner or to any
extent vary the risk of any Guarantor or would otherwise operate as a discharge
of any Guarantor as a matter of law or equity.


 


(f)            Except as expressly set forth in
Sections 8.01 and 10.02, each Guarantor agrees that its Guarantee shall remain
in full force and effect until payment in full of all the Guaranteed
Obligations.  Except as expressly set
forth in Sections 8.01 and 10.02, each Guarantor further agrees that its
Guarantee herein shall continue to be effective or be reinstated, as the case
may be, if at any time payment, or any part thereof, of principal of or
interest on any Guaranteed Obligation is rescinded or must otherwise be
restored by any Holder or the Trustee upon the bankruptcy or reorganization of
the Company or otherwise.


 


(g)           In furtherance of
the foregoing and not in limitation of any other right which any Holder or the
Trustee has at law or in equity against any Guarantor by virtue hereof, upon
the failure of the Company to pay the principal of or interest on any
Guaranteed Obligation when and as the same shall become due, whether at
maturity, by acceleration, by redemption or otherwise, or to perform or comply
with any other Guaranteed Obligation, each Guarantor hereby promises to and
shall, upon receipt of written demand by the Trustee, forthwith pay, or cause
to be paid, in cash, to the Holders or the Trustee an amount equal to the sum
of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued
and unpaid interest on such Guaranteed Obligations (but only to the extent not
prohibited by applicable law) and (iii) all other monetary obligations of
the Company to the Holders and the Trustee in respect of the Guaranteed
Obligations.


 


(h)           Each Guarantor agrees that it shall
not be entitled to any right of subrogation in relation to the Holders in
respect of any Guaranteed Obligations guaranteed hereby until payment in full
of all Guaranteed Obligations.  Each
Guarantor further agrees that, as between it, on the one hand, and the Holders
and the Trustee, on the other hand, (i) the maturity of the Guaranteed
Obligations guaranteed hereby may be accelerated as provided in Article 6
for the purposes of any Guarantee herein, notwithstanding any stay, injunction
or other prohibition preventing such acceleration in respect of the Guaranteed
Obligations guaranteed hereby, and (ii) in the event of any declaration of
acceleration of such Guaranteed Obligations as provided in Article 6, such
Guaranteed Obligations (whether or not due and payable) shall forthwith become
due and payable by such Guarantor for the purposes of this Section 10.01.


 


(i)            Each Guarantor also agrees to pay
any and all costs and expenses (including reasonable attorneys’ fees and
expenses) incurred by the Trustee or any Holder in enforcing any rights under
this Section 10.01.


 


91

















 


(j)            Upon request of the Trustee, each
Guarantor shall execute and deliver such further instruments and do such
further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.


 


(k)           Any Guarantee given by any direct or
indirect parent of the Company, including Parent, may be released and
discharged from all obligations under this Article 10 at any time upon
written notice to the Trustee from such direct or indirect parent of the
Company, including Parent.


 


SECTION 10.02.             Limitation
on Liability.


 


(a)           Any term or
provision of this Indenture to the contrary notwithstanding, the maximum
aggregate amount of the Guaranteed Obligations guaranteed hereunder by any
Guarantor shall not exceed the maximum amount that can be hereby guaranteed
without rendering this Indenture or the Guarantee, as each relates to such
Guarantor, voidable under applicable law relating to fraudulent conveyance or
fraudulent transfer or similar laws affecting the rights of creditors
generally.


 


(b)           A Guarantee as to any Subsidiary
Guarantor shall automatically terminate and be of no further force or effect
and such Subsidiary Guarantor shall be deemed to be released and discharged
from all obligations under this Article 10 upon:


 


(i)            the sale, disposition or other transfer (including
through merger or consolidation) of the Capital Stock (including any sale,
disposition or other transfer following which the applicable Subsidiary
Guarantor is no longer a Restricted Subsidiary), or all or substantially all
the assets, of the applicable Subsidiary Guarantor if such sale, disposition or
other transfer is made in compliance with this Indenture,


 


(ii)           the
Company designating such Subsidiary Guarantor to be an Unrestricted Subsidiary
in accordance with the provisions set forth under Section 4.04 and the
definition of “Unrestricted Subsidiary,”


 


(iii)          in
the case of any Restricted Subsidiary which after the Issue Date is required to
guarantee the Securities pursuant to Section 4.10, the release or
discharge of the guarantee by such Restricted Subsidiary of Indebtedness of the
Company or any Restricted Subsidiary of the Company or such Restricted
Subsidiary or the repayment of the Indebtedness or Disqualified Stock, in each
case, which resulted in the obligation to guarantee the Securities, or


 


(iv)          the
Company’s exercise of its legal defeasance option or covenant defeasance option
as described under Section 8.01 or if the Company’s obligations under this
Indenture are discharged in accordance with the terms of this Indenture.


 


(c)           A Guarantee also
shall be automatically released upon the applicable Subsidiary ceasing to be a
Subsidiary as a result of any foreclosure of any pledge or security interest
securing Credit Agreement or other exercise of remedies in respect
thereof.  Further, the Company may, upon
written notice to the Trustee, automatically release and discharge the
Guarantee 


 


92

















 


of any Guarantor that was not obligated to become a Guarantor pursuant
to the terms of this Indenture.


 


SECTION 10.03.             Successors
and Assigns.  This Article 10
shall be binding upon each Guarantor and its successors and assigns and shall
inure to the benefit of the successors and assigns of the Trustee and the
Holders and, in the event of any transfer or assignment of rights by any Holder
or the Trustee, the rights and privileges conferred upon that party in this
Indenture and in the Securities shall automatically extend to and be vested in
such transferee or assignee, all subject to the terms and conditions of this
Indenture.


 


SECTION 10.04.             No
Waiver.  Neither a failure nor a
delay on the part of either the Trustee or the Holders in exercising any right,
power or privilege under this Article 10 shall operate as a waiver
thereof, nor shall a single or partial exercise thereof preclude any other or
further exercise of any right, power or privilege.  The rights, remedies and benefits of the
Trustee and the Holders herein expressly specified are cumulative and not
exclusive of any other rights, remedies or benefits which either may have under
this Article 10 at law, in equity, by statute or otherwise.


 


SECTION 10.05.             Modification.  No modification, amendment or waiver of any
provision of this Article 10, nor the consent to any departure by any
Guarantor therefrom, shall in any event be effective unless the same shall be
in writing and signed by the Trustee, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which
given.  No notice to or demand on any
Guarantor in any case shall entitle such Guarantor to any other or further
notice or demand in the same, similar or other circumstances.


 


SECTION 10.06.             Execution
of Supplemental Indenture for Future Guarantors.  Each Subsidiary and other Person which is
required to become a Guarantor pursuant to Section 4.10 shall promptly
execute and deliver to the Trustee a supplemental indenture in the form of Exhibit D
hereto pursuant to which such Subsidiary or other Person shall become a
Guarantor under this Article 10 and shall guarantee the Guaranteed
Obligations.  Concurrently with the
execution and delivery of such supplemental indenture, the Company shall
deliver to the Trustee an Opinion of Counsel and an Officers’ Certificate to
the effect that such supplemental indenture has been duly authorized, executed
and delivered by such Subsidiary or other Person and that, subject to the
application of bankruptcy, insolvency, moratorium, fraudulent conveyance or
transfer and other similar laws relating to creditors’ rights generally and to
the principles of equity, whether considered in a proceeding at law or in
equity, the Guarantee of such Guarantor is a legal, valid and binding
obligation of such Guarantor, enforceable against such Guarantor in accordance
with its terms and/or to such other matters as the Trustee may reasonably
request.


 


SECTION 10.07.             Non-Impairment.  The failure to endorse a Guarantee on any
Security shall not affect or impair the validity thereof.


 


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ARTICLE 11


 


MISCELLANEOUS


 


SECTION 11.01.             Trust
Indenture Act Controls.  From the
date on which this Indenture is qualified under the TIA, if and to the extent
that any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by, or with another provision (an “incorporated provision”)
included in this Indenture by operation of, Sections 310 to 318 of the TIA,
inclusive, such imposed duties or incorporated provision shall control.


 


SECTION 11.02.             Notices.


 


(a)           Any notice or
communication required or permitted hereunder shall be in writing and delivered
in person, via facsimile or mailed by first-class mail addressed as follows:


 


if
to the Company or a Guarantor:


 


FGI
Holding Company, Inc.


c/o
Freedom Group, Inc. 


870
Remington Drive


Madison,
NC  27025


Attention
of:  Fredric E. Roth, Jr.


Facsimile:  (336) 548-8810


 


if
to the Trustee:


 


Wilmington
Trust FSB 


246
Goose Lane, Suite 105


Guilford,
CT  06437


Attention
of:  Joseph P. O’Donnell


Facsimile:  (203) 453-1183


 


The
Company or the Trustee by notice to the other may designate additional or
different addresses for subsequent notices or communications.


 


(b)           Any notice or
communication mailed to a Holder shall be mailed, first class mail, to the
Holder at the Holder’s address as it appears on the registration books of the
Registrar and shall be sufficiently given if so mailed within the time
prescribed.


 


(c)           Failure to mail a notice or
communication to a Holder or any defect in it shall not affect its sufficiency
with respect to other Holders.  If a
notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it, except that notices to the
Trustee are effective only if received.


 


Notwithstanding
any other provision of this Indenture or any Security, where this Indenture or
any Security provides for notice of any event (including any notice of
redemption) to a Holder of a Global Security (whether by mail or otherwise),
such notice shall be sufficiently 


 


94

















 


given
if given to the Depository for such Security (or its designee), pursuant to the
customary procedures of such Depository.


 


SECTION 11.03.             Communication
by the Holders with Other Holders. 
The Holders may communicate pursuant to Section 312(b) of the
TIA with other Holders with respect to their rights under this Indenture or the
Securities.  The Company, the Trustee,
the Registrar and other Persons shall have the protection of Section 312(c) of
the TIA.


 


SECTION 11.04.             Certificate
and Opinion as to Conditions Precedent. 
Upon any request or application by the Company to the Trustee to take or
refrain from taking any action under this Indenture, the Company shall furnish
to the Trustee at the request of the Trustee:


 


(a)           an
Officers’ Certificate in form reasonably satisfactory to the Trustee stating
that, in the opinion of the signers, all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with;
and


 


(b)           an Opinion of Counsel in form
reasonably satisfactory to the Trustee stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.


 


SECTION 11.05.             Statements
Required in Certificate or Opinion. 
Each certificate or opinion with respect to compliance with a covenant
or condition provided for in this Indenture (other than pursuant to Section 4.09)
shall include:


 


(a)           a
statement that the individual making such certificate or opinion has read such
covenant or condition;


 


(b)           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;


 


(c)           a statement that, in the opinion of
such individual, he has made such examination or investigation as is necessary
to enable him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and


 


(d)           a statement as to whether or not, in
the opinion of such individual, such covenant or condition has been complied
with; provided, however, that with respect to matters of
fact an Opinion of Counsel may rely on an Officers’ Certificate or certificates
of public officials.


 


SECTION 11.06.             When
Securities Disregarded.  In
determining whether the Holders of the required principal amount of Securities
have concurred in any direction, waiver or consent, Securities owned by the
Company, 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 shall be disregarded and deemed not to be outstanding, except
that, for the purpose of determining whether the Trustee shall be protected in
relying on any such direction, waiver or consent, only Securities which the
Trustee knows are so owned shall be so disregarded.  Subject 


 


95

















 


to
the foregoing, only Securities outstanding at the time shall be considered in
any such determination.


 


SECTION 11.07.             Rules by
Trustee, Paying Agent and Registrar. 
The Trustee may make reasonable rules for action by or a meeting of
the Holders.  The Registrar and a Paying
Agent may make reasonable rules for their functions.


 


SECTION 11.08.             Legal
Holidays.  If a payment date is not a
Business Day, payment shall be made on the next succeeding day that is a
Business Day, and no interest shall accrue on any amount that would have been
otherwise payable on such payment date if it were a Business Day for the
intervening period.  If a regular record
date is not a Business Day, the record date shall not be affected.


 


SECTION 11.09.             Governing Law.  THIS
INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.


 


SECTION 11.10.             No
Recourse Against Others.  No
director, officer, employee, incorporator or holder of any equity interests in
the Company or of any Guarantor or any direct or indirect parent corporation,
as such, shall have any liability for any obligations of the Company or the
Guarantors under the Securities or this Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation.  Each Holder of Securities by accepting a
Security waives and releases all such liability.


 


SECTION 11.11.             Successors.  All agreements of the Company and each
Guarantor in this Indenture and the Securities shall bind its successors.  All agreements of the Trustee in this
Indenture shall bind its successors.


 


SECTION 11.12.             Multiple
Originals.  The parties may sign any
number of copies of this Indenture.  Each
signed copy shall be an original, but all of them together represent the same
agreement.  One signed copy is enough to
prove this Indenture.


 


SECTION 11.13.             Table
of Contents; Headings.  The table of
contents, cross-reference sheet and headings of the Articles and Sections of
this Indenture have been inserted for convenience of reference only, are not
intended to be considered a part hereof and shall not modify or restrict any of
the terms or provisions hereof.


 


SECTION 11.14.             Indenture
Controls.  If and to the extent that
any provision of the Securities limits, qualifies or conflicts with a provision
of this Indenture, such provision of this Indenture shall control.


 


SECTION 11.15.             Severability.  In case any provision in this Indenture shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby and such provision shall be ineffective only to the extent of such
invalidity, illegality or unenforceability.


 


96

















 


SECTION 11.16.             Waiver
of Jury Trial.  EACH OF THE COMPANY,
THE GUARANTORS, THE TRUSTEE, THE PAYING AGENT, THE REGISTRAR, THE TRANSFER
AGENT AND THE COLLATERAL AGENT 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 THIS INDENTURE, THE SECURITIES OR THE
TRANSACTIONS CONTEMPLATED HEREBY.


 


97






 


 










 


IN
WITNESS WHEREOF, the parties have caused this Indenture to be duly executed as
of the date first written above.


 


	
   

  	
  FGI
  HOLDING COMPANY, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Fredric E. Roth, Jr.

  
	
   

  	
   

  	
  Name:
  Fredric E. Roth, Jr.

  
	
   

  	
   

  	
  Title:
  Secretary, Senior Vice President and 

  
	
   

  	
   

  	
   General Counsel

  



 


S-1

















 


	
   

  	
  GUARANTOR:

  
	
   

  	
   

  
	
   

  	
  FREEDOM
  GROUP, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Ted Torbeck

  
	
   

  	
   

  	
  Name:
  Ted Torbeck

  
	
   

  	
   

  	
  Title:
  CEO

  



 


S-2

















 


	
   

  	
  WILMINGTON
  TRUST FSB, as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Joseph P. O’Donnell

  
	
   

  	
   

  	
  Name:
  Joseph P. O’Donnell

  
	
   

  	
   

  	
  Title:
  Vice President

  



 


S-3






 










 


Appendix A


 


PROVISIONS
RELATING TO INITIAL SECURITIES, ADDITIONAL SECURITIES AND EXCHANGE SECURITIES


 


1.             Definitions.


 


1.1           Definitions.


 


For
the purposes of this Appendix A the following terms shall have the meanings
indicated below:


 


“Clearstream”
means Clearstream Banking, société anonyme, or any successor securities
clearing agency.


 


“Definitive
Security” means a certificated Initial Security or Exchange Security
(bearing the Restricted Securities Legend if the transfer of such Security is
restricted by applicable law) that does not include the Global Securities
Legend.


 


“Depository”
means, with respect to the Securities, The Depository Trust Company, its
nominees and their respective successors.


 


“Euroclear”
means the Euroclear Clearance System or any successor securities clearing
agency.


 


“Global
Securities Legend” means the legend set forth under that caption in the
applicable Exhibit to this Indenture.


 


“IAI”
means an institutional “accredited investor” as described in Rule 501(a)(1),
(2), (3) or (7) under the Securities Act.


 


“Initial
Purchasers” means Banc of America Securities LLC and Deutsche Bank
Securities Inc. and such other initial purchasers party to the purchase
agreement or future purchase agreements entered into in connection with an
offer and sale of Securities.


 


“Purchase
Agreement” means (a) the Purchase Agreement dated March 30, 2010,
among the Company, Parent and the Initial Purchasers and (b) any
other similar Purchase Agreement relating to Additional Securities.


 


“QIB”
means a “qualified institutional buyer” as defined in Rule 144A.


 


“Registration
Rights Agreement” means (a) the Registration Rights Agreement dated as
of April 7, 2010 among the Company, Parent and the Initial Purchasers
relating to the Securities and (b) any other similar Registration Rights
Agreement relating to Additional Securities.


 


Appendix A-1

















 


“Registered
Exchange Offer” means the offer by the Company, pursuant to the
Registration Rights Agreement, to certain Holders of Initial Securities, to
issue and deliver to such Holders, in exchange for their Initial Securities, a
like aggregate principal amount of Exchange Securities registered under the
Securities Act.


 


“Regulation S”
means Regulation S under the Securities Act.


 


“Regulation
S Securities” means all Initial Securities offered and sold outside the
United States in reliance on Regulation S.


 


“Restricted
Period,” with respect to any Securities, means the period of 40 consecutive
days beginning on and including the later of (a) the day on which such
Securities are first offered to persons other than distributors (as defined in
Regulation S under the Securities Act) in reliance on Regulation S, notice
of which day shall be promptly given by the Company to the Trustee, and (b) the
Issue Date, and with respect to any Additional Securities that are Transfer
Restricted Definitive Securities, it means the comparable period of 40
consecutive days.


 


“Restricted
Securities Legend” means the legend set forth in Section 2.2(f)(i) herein.


 


“Rule 501”
means Rule 501(a)(1), (2), (3) or (7) under the Securities Act.


 


“Rule 144A”
means Rule 144A under the Securities Act.


 


“Rule 144A
Securities” means all Initial Securities offered and sold to QIBs in
reliance on Rule 144A.


 


“Securities
Custodian” means the custodian with respect to a Global Security (as
appointed by the Depository) or any successor person thereto, who shall
initially be the Trustee.


 


“Shelf
Registration Statement” means a registration statement filed by the Company
in connection with the offer and sale of Initial Securities pursuant to the
Registration Rights Agreement.


 


“Transfer
Restricted Definitive Securities” means Definitive Securities and any other
Securities that bear or are required to bear or are subject to the Restricted
Securities Legend.


 


“Transfer
Restricted Global Securities” means Global Securities bearing the
Restricted Securities Legend.


 


“Unrestricted
Definitive Security” means Definitive Securities and any other Securities
that are not required to bear, or are not subject to, the Restricted Securities
Legend.


 


“Unrestricted
Global Security” means a Global Security that does not bear the Restricted
Securities Legend.


 


Appendix A-2

















 


1.2           Other Definitions.


 


	
  Term:

  	
   

  	
  Defined in Section:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  “Agent Members”

  	
   

  	
  2.1(b)

  	
   

  
	
  “Global Securities”

  	
   

  	
  2.1(b)

  	
   

  
	
  “Regulation S Global Securities”

  	
   

  	
  2.1(b)

  	
   

  
	
  “Rule 144A Global Securities”

  	
   

  	
  2.1(b)

  	
   

  



 


2.             The Securities.


 


2.1           Form and Dating; Global
Securities.


 


(a)           The Initial Securities issued on the
date hereof will be (i) offered and sold by the Company pursuant to the
Purchase Agreement and (ii) resold, initially only to (1) QIBs in
reliance on Rule 144A and (2) Persons other than U.S. Persons (as
defined in Regulation S) in reliance on Regulation S.  Such Initial Securities may thereafter be
transferred to, among others, QIBs, purchasers in reliance on Regulation S and,
except as set forth below, IAIs in accordance with Rule 501.  Additional Securities offered after the date
hereof may be offered and sold by the Company from time to time pursuant to one
or more Purchase Agreements in accordance with applicable law.


 


(b)           Global Securities.  (i)  Rule 144A Securities initially
shall be represented by one or more Securities in fully registered, global form
without interest coupons (collectively, the “Rule 144A Global
Securities”).  Regulation S
Securities initially shall be represented by one or more Securities in fully
registered, global form without interest coupons (collectively, the “Regulation
S Global Securities”).  The term “Global
Securities” means, collectively, the Rule 144A Global Securities and
the Regulation S Global Securities.  The
Global Securities shall bear the Global Security Legend.  The Global Securities initially shall (i) be
registered in the name of the Depository or the nominee of such Depository, in
each case for credit to an account of an Agent Member, (ii) be delivered
to the Trustee as custodian for such Depository and (iii) bear the
Restricted Securities Legend.


 


Members
of, or direct or indirect participants in, the Depository, Euroclear or
Clearstream (“Agent Members”) shall have no rights under this Indenture
with respect to any Global Security held on their behalf by the Depository or
under the Global Securities.  The
Depository may be treated by the Company, the Trustee and any agent of the
Company or the Trustee as the absolute owner of the Global Securities for all
purposes whatsoever.  Notwithstanding the
foregoing, nothing herein shall prevent the Company, the Trustee or any agent
of the Company or the Trustee from giving effect to any written certification,
proxy or other authorization furnished by the Depository or impair, as between
the Depository, Euroclear or Clearstream, as the case may be, and their
respective Agent Members, the operation of customary practices governing the
exercise of the rights of a Holder of any Security.


 


(ii)           Transfers of Global Securities shall
be limited to transfer in whole, but not in part, to the Depository, its successors
or their respective nominees.  Interests
of beneficial 


 


Appendix A-3

















 


owners in the Global Securities may be transferred or exchanged for
Definitive Securities only in accordance with the applicable rules and
procedures of the Depository, Euroclear or Clearstream, as the case may be, and
the provisions of Section 2.2.  In
addition, a Global Security shall be exchangeable for Definitive Securities if (i) the
Depository (x) notifies the Company that it is unwilling or unable to
continue as depository for such Global Security and the Company thereupon fails
to appoint a successor depository or (y) has ceased to be a clearing
agency registered under the Exchange Act, or (ii) there shall have
occurred and be continuing an Event of Default with respect to such Global
Security.  In all cases, Definitive
Securities delivered in exchange for any Global Security or beneficial
interests therein shall be registered in the names, and issued in any approved
denominations, requested in writing by or on behalf of the Depository, in
accordance with its customary procedures.


 


(iii)          In connection with
the transfer of a Global Security as an entirety to beneficial owners pursuant
to subsection (i) of this Section 2.1(b), such Global Security
shall be deemed to be surrendered to the Trustee for cancellation, and the
Company shall execute, and the Trustee shall authenticate and make available
for delivery, to each beneficial owner identified by the Depository in writing
in exchange for its beneficial interest in such Global Security, an equal
aggregate principal amount of Definitive Securities of authorized
denominations.


 


(iv)          Any Transfer
Restricted Definitive Security delivered in exchange for an interest in a
Global Security pursuant to Section 2.2 shall, except as otherwise
provided in Section 2.2, bear the Restricted Securities Legend.


 


(v)           Notwithstanding the
foregoing, through the Restricted Period, a beneficial interest in such
Regulation S Global Security may be held only through Euroclear or Clearstream
unless delivery is made in accordance with the applicable provisions of Section 2.2.


 


(vi)          The Holder of any
Global Security may grant proxies and otherwise authorize any Person, including
Agent Members and Persons that may hold interests through Agent Members, to
take any action which a Holder is entitled to take under this Indenture or the
Securities.


 


2.2           Transfer and Exchange.


 


(a)           Transfer and Exchange of Global
Securities.  A Global Security may
not be transferred as a whole except as set forth in Section 2.1(b).  Global Securities will not be exchanged by
the Company for Definitive Securities except under the circumstances described
in Section 2.1(b)(ii).  Global
Securities also may be exchanged or replaced, in whole or in part, as provided
in Sections 2.08 and 2.10 of this Indenture. 
Beneficial interests in a Global Security may be transferred and
exchanged as provided in Section 2.2(b) or 2.2(g).


 


(b)           Transfer and Exchange of
Beneficial Interests in Global Securities. 
The transfer and exchange of beneficial interests in the Global
Securities shall be effected through the Depository, in accordance with the
provisions of this Indenture and the applicable rules and procedures of
the Depository.  Beneficial interests in
Transfer Restricted Global Securities shall be subject to restrictions on
transfer comparable to those set forth herein to the extent required by the
Securities Act.  Transfers and exchanges
of beneficial interests in the Global Securities 


 


Appendix A-4

















 


also
shall require compliance with either subparagraph (i) or (ii) below,
as applicable, as well as one or more of the other following subparagraphs, as
applicable:


 


(i)            Transfer
of Beneficial Interests in the Same Global Security.  Beneficial interests in any Transfer
Restricted Global Security may be transferred to Persons who take delivery
thereof in the form of a beneficial interest in the same Transfer Restricted
Global Security in accordance with the transfer restrictions set forth in the
Restricted Securities Legend; provided, however, that prior to the expiration of
the Restricted Period, transfers of beneficial interests in a Regulation S
Global Security may not be made to a U.S. Person or for the account or benefit
of a U.S. Person (other than an Initial Purchaser).  A beneficial interest in an Unrestricted
Global Security may be transferred to Persons who take delivery thereof in the
form of a beneficial interest in an Unrestricted Global Security.  No written orders or instructions shall be
required to be delivered to the Registrar to effect the transfers described in
this Section 2.2(b)(i).


 


(ii)           All
Other Transfers and Exchanges of Beneficial Interests in Global Securities.  In connection with all transfers and
exchanges of beneficial interests in any Global Security that is not subject to
Section 2.2(b)(i), the transferor of such beneficial interest must deliver
to the Registrar (1) a written order from an Agent Member given to the
Depository in accordance with the applicable rules and procedures of the
Depository directing the Depository to credit or cause to be credited a
beneficial interest in another Global Security in an amount equal to the
beneficial interest to be transferred or exchanged and (2) instructions
given in accordance with the applicable rules and procedures of the
Depository containing information regarding the Agent Member account to be
credited with such increase; provided
that in no event shall a beneficial interest in a Global Security be credited,
or an Unrestricted Definitive Security be issued, to a Person who is an
affiliate (as defined in Rule 144) of the Company.  Upon satisfaction of all of the requirements
for transfer or exchange of beneficial interests in Global Securities contained
in this Indenture and the Securities or otherwise applicable under the
Securities Act, the Trustee shall adjust the principal amount of the relevant
Global Security pursuant to Section 2.2(g).


 


(iii)          Transfer
of Beneficial Interests to Another Transfer Restricted Global Security.  A beneficial interest in a Transfer
Restricted Global Security may be transferred to a Person who takes delivery
thereof in the form of a beneficial interest in another Transfer Restricted
Global Security if the transfer complies with the requirements of Section 2.2(b)(ii) above
and the Registrar receives the following:


 


(A)          if
the transferee will take delivery in the form of a beneficial interest in a Rule 144A
Global Security, then the transferor must deliver a certificate in the form
attached to the applicable Security; and


 


(B)           if
the transferee will take delivery in the form of a beneficial interest in a
Regulation S Global Security, then the transferor must deliver a certificate in
the form attached to the applicable Security.


 


(iv)          Transfer
and Exchange of Beneficial Interests in a Transfer Restricted Global Security
for Beneficial Interests in an Unrestricted Global Security.  A beneficial 


 


Appendix A-5

















 


interest in a Transfer Restricted Global Security may be exchanged by
any holder thereof for a beneficial interest in an Unrestricted Global Security
or transferred to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Security if the exchange or
transfer complies with the requirements of Section 2.2(b)(ii) above
and the Registrar receives the following:


 


(A)          if
the holder of such beneficial interest in a Transfer Restricted Global Security
proposes to exchange such beneficial interest for a beneficial interest in an
Unrestricted Global Security, a certificate from such holder in the form
attached to the applicable Security; or


 


(B)           if
the holder of such beneficial interest in a Transfer Restricted Global Security
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
Security, a certificate from such holder in the form attached to the applicable
Security,


 


and,
in each such case, if the Registrar so requests or if the applicable rules and
procedures of the Depository, Euroclear or Clearstream, as applicable, 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 Restricted Securities Legend are no longer required in order to maintain
compliance with the Securities Act.  If
any such transfer or exchange is effected pursuant to this subparagraph (iv) at
a time when an Unrestricted Global Security has not yet been issued, the
Company shall issue and, upon receipt of an written order of the Company in the
form of an Officers’ Certificate in accordance with Section 2.01, the
Trustee shall authenticate one or more Unrestricted Global Securities in an
aggregate principal amount equal to the aggregate principal amount of
beneficial interests transferred or exchanged pursuant to this subparagraph
(iv).


 


(v)           Transfer
and Exchange of Beneficial Interests in an Unrestricted Global Security for
Beneficial Interests in a Transfer Restricted Global Security.  Beneficial interests in an Unrestricted
Global Security cannot be exchanged for, or transferred to Persons who take
delivery thereof in the form of, a beneficial interest in a Transfer Restricted
Global Security.


 


(c)           Transfer and Exchange of
Beneficial Interests in Global Securities for Definitive Securities.  A beneficial interest in a Global Security
may not be exchanged for a Definitive Security except under the circumstances
described in Section 2.1(b)(ii).  A
beneficial interest in a Global Security may not be transferred to a Person who
takes delivery thereof in the form of a Definitive Security except under the
circumstances described in Section 2.1(b)(ii).


 


(d)           Transfer and Exchange of
Definitive Securities for Beneficial Interests in Global Securities.  Transfers and exchanges of beneficial
interests in the Global Securities shall require compliance with either
subparagraph (i), (ii) or (iii) below, as applicable:


 


Appendix A-6

















 


(i)           Transfer
Restricted Definitive Securities to Beneficial Interests in Transfer Restricted
Global Securities.  If any Holder of
a Transfer Restricted Definitive Security proposes to exchange such Transfer
Restricted Definitive Security for a beneficial interest in a Transfer
Restricted Global Security or to transfer such Transfer Restricted Definitive
Security to a Person who takes delivery thereof in the form of a beneficial
interest in a Transfer Restricted Global Security, then, upon receipt by the
Registrar of the following documentation:


 


(A)          if
the Holder of such Transfer Restricted Definitive Security proposes to exchange
such Transfer Restricted Definitive Security for a beneficial interest in a
Transfer Restricted Global Security, a certificate from such Holder in the form
attached to the applicable Security;


 


(B)           if
such Transfer Restricted Definitive Security is being transferred to a QIB in
accordance with Rule 144A under the Securities Act, a certificate from
such Holder in the form attached to the applicable Security;


 


(C)           if
such Transfer Restricted Definitive Security is being transferred to a Non-U.S.
Person in an offshore transaction in accordance with Rule 903 or Rule 904
under the Securities Act, a certificate from such Holder in the form attached
to the applicable Security;


 


(D)          if
such Transfer Restricted Definitive Security is being transferred pursuant to
an exemption from the registration requirements of the Securities Act in
accordance with Rule 144 under the Securities Act, a certificate from such
Holder in the form attached to the applicable Security;


 


(E)           if
such Transfer Restricted Definitive Security is being transferred to an IAI 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 from such Holder in the form attached to the applicable Security, including
the certifications, certificates and Opinion of Counsel, if applicable; or


 


(F)           if
such Transfer Restricted Definitive Security is being transferred to the
Company or a Subsidiary thereof, a certificate from such Holder in the form
attached to the applicable Security;


 


the
Trustee shall cancel the Transfer Restricted Definitive Security, and increase
or cause to be increased the aggregate principal amount of  the appropriate Transfer Restricted Global
Security.


 


(ii)            Transfer
Restricted Definitive Securities to Beneficial Interests in Unrestricted Global
Securities.  A Holder of a Transfer
Restricted Definitive Security may exchange such Transfer Restricted Definitive
Security for a beneficial interest in an Unrestricted Global Security or
transfer such Transfer Restricted Definitive Security to a Person who takes
delivery thereof in the form of a beneficial interest in an Unrestricted Global
Security only if the Registrar receives the following:


 


Appendix A-7

















 


(A)          if
the Holder of such Transfer Restricted Definitive Security proposes to exchange
such Transfer Restricted Definitive Security for a beneficial interest in an
Unrestricted Global Security, a certificate from such Holder in the form
attached to the applicable Security; or


 


(B)           if
the Holder of such Transfer Restricted Definitive Securities proposes to
transfer such Transfer Restricted Definitive Security to a Person who shall
take delivery thereof in the form of a beneficial interest in an Unrestricted
Global Security, a certificate from such Holder in the form attached to the
applicable Security,


 


and,
in each such case, if the Registrar so requests or if the applicable rules and
procedures of the Depository, Euroclear or Clearstream, as applicable, 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 Restricted Securities Legend are no longer required in order to maintain
compliance with the Securities Act.  Upon
satisfaction of the conditions of this subparagraph (ii), the Trustee shall
cancel the Transfer Restricted Definitive Securities and increase or cause to
be increased the aggregate principal amount of the Unrestricted Global
Security.  If any such transfer or
exchange is effected pursuant to this subparagraph (ii) at a time when an
Unrestricted Global Security has not yet been issued, the Company shall issue and,
upon receipt of an written order of the Company in the form of an Officers’
Certificate, the Trustee shall authenticate one or more Unrestricted Global
Securities in an aggregate principal amount equal to the aggregate principal
amount of Transfer Restricted Definitive Securities transferred or exchanged
pursuant to this subparagraph (ii).


 


(iii)            Unrestricted
Definitive Securities to Beneficial Interests in Unrestricted Global Securities.  A Holder of an Unrestricted Definitive
Security may exchange such Unrestricted Definitive Security for a beneficial
interest in an Unrestricted Global Security or transfer such Unrestricted
Definitive Security to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Security at any time.  Upon receipt of a request for such an
exchange or transfer, the Trustee shall cancel the applicable Unrestricted
Definitive Security and increase or cause to be increased the aggregate
principal amount of one of the Unrestricted Global Securities.  If any such transfer or exchange is effected
pursuant to this subparagraph (iii) at a time when an Unrestricted Global
Security has not yet been issued, the Company shall issue and, upon receipt of
an written order of the Company in the form of an Officers’ Certificate, the
Trustee shall authenticate one or more Unrestricted Global Securities in an
aggregate principal amount equal to the aggregate principal amount of
Unrestricted Definitive Securities transferred or exchanged pursuant to this
subparagraph (iii).


 


(iv)           Unrestricted
Definitive Securities to Beneficial Interests in Transfer Restricted Global
Securities.  An Unrestricted
Definitive Security cannot be exchanged for, or transferred to a Person who
takes delivery thereof in the form of, a beneficial interest in a Transfer
Restricted Global Security.


 


Appendix A-8

















 


(e)           Transfer and Exchange of
Definitive Securities for Definitive Securities.  Upon request by a Holder of Definitive
Securities and such Holder’s compliance with the provisions of this Section 2.2(e),
the Registrar shall register the transfer or exchange of Definitive
Securities.  Prior to such registration
of transfer or exchange, the requesting Holder shall present or surrender to the
Registrar the Definitive Securities 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 shall
provide any additional certifications, documents and information, as
applicable, required pursuant to the following provisions of this Section 2.2(e).


 


(i)           Transfer
Restricted Definitive Securities to Transfer Restricted Definitive Securities.  A Transfer Restricted Definitive Security may
be transferred to and registered in the name of a Person who takes delivery
thereof in the form of a Transfer Restricted Definitive Security if the
Registrar receives the following:


 


(A)          if
the transfer will be made pursuant to Rule 144A under the Securities Act,
then the transferor must deliver a certificate in the form attached to the
applicable Security;


 


(B)           if
the transfer will be made pursuant to Rule 903 or Rule 904 under the
Securities Act, then the transferor must deliver a certificate in the form
attached to the applicable Security;


 


(C)           if
the transfer will be made pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule 144 under the
Securities Act, a certificate in the form attached to the applicable Security;


 


(D)          if
the transfer will be made to an IAI in reliance on an exemption from the
registration requirements of the Securities Act other than those listed in
subparagraphs (A) through (D) above, a certificate in the form
attached to the applicable Security; and


 


(E)           if
such transfer will be made to the Company or a Subsidiary thereof, a
certificate in the form attached to the applicable Security.


 


(ii)            Transfer
Restricted Definitive Securities to Unrestricted Definitive Securities.  Any Transfer Restricted Definitive Security
may be exchanged by the Holder thereof for an Unrestricted Definitive Security
or transferred to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Security if the Registrar receives the following:


 


(1)           if
the Holder of such Transfer Restricted Definitive Security proposes to exchange
such Transfer Restricted Definitive Security for an Unrestricted Definitive
Security, a certificate from such Holder in the form attached to the applicable
Security; or


 


Appendix A-9

















 


(2)           if
the Holder of such Transfer Restricted Definitive Security proposes to transfer
such Securities to a Person who shall take delivery thereof in the form of an
Unrestricted Definitive Security, a certificate from such Holder in the form
attached to the applicable Security,


 


and,
in each such case, if the Registrar so requests, an Opinion of Counsel in form
reasonably acceptable to the Company 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 Restricted Securities Legend are no longer
required in order to maintain compliance with the Securities Act.


 


(iii)            Unrestricted
Definitive Securities to Unrestricted Definitive Securities.  A Holder of an Unrestricted Definitive
Security may transfer such Unrestricted Definitive Securities to a Person who
takes delivery thereof in the form of an Unrestricted Definitive Security at
any time.  Upon receipt of a request to
register such a transfer, the Registrar shall register the Unrestricted
Definitive Securities pursuant to the instructions from the Holder thereof.


 


(iv)           Unrestricted
Definitive Securities to Transfer Restricted Definitive Securities.  An Unrestricted Definitive Security cannot be
exchanged for, or transferred to a Person who takes delivery thereof in the
form of, a Transfer Restricted Definitive Security.


 


At
such time as all beneficial interests in a particular Global Security have been
exchanged for Definitive Securities or a particular Global Security has been
redeemed, repurchased or canceled in whole and not in part, each such Global
Security shall be returned to or retained and canceled by the Trustee in
accordance with Section 2.11.  At
any time prior to such cancellation, if any beneficial interest in a Global
Security is exchanged for or transferred to a Person who will take delivery
thereof in the form of a beneficial interest in another Global Security or for
Definitive Securities, the principal amount of Securities represented by such
Global Security shall be reduced accordingly and an endorsement shall be made
on such Global Security by the Trustee or by the Depository, 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 Security, such other Global
Security shall be increased accordingly and an endorsement shall be made on
such Global Security by the Trustee or by the Depository, at the direction of
the Trustee to reflect such increase.


 


(f)            Legend.


 


(i)            Except as permitted by the following
paragraphs (ii), (iii) or (iv), each Security certificate evidencing
the Global Securities and the Definitive Securities (and all Securities issued
in exchange therefor or in substitution thereof) shall bear a legend in
substantially the following form (each defined term in the legend being defined
as such for purposes of the legend only):


 


“THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), AND MAY 


 


Appendix A-10

















 


NOT
BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH
THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST
HEREIN, THE ACQUIRER:


 


(1)           REPRESENTS
THAT IT, AND ANY ACCOUNT FOR WHICH IT IS ACTING, IS A “QUALIFIED INSTITUTIONAL
BUYER” (WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT) AND THAT IT
EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, AND


 


(2)           AGREES
FOR THE BENEFIT OF THE COMPANY THAT IT WILL NOT OFFER, SELL, PLEDGE OR
OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE
RESALE RESTRICTION TERMINATION DATE (AS DEFINED IN THE NEXT PARAGRAPH), EXCEPT:


 


(A)          TO
THE COMPANY OR ANY SUBSIDIARY THEREOF, OR


 


(B)           PURSUANT
TO A REGISTRATION STATEMENT THAT HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT,
OR


 


(C)           TO
A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT, OR


 


(D)          PURSUANT
TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT
OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.


 


THE
RESALE RESTRICTION TERMINATION DATE WILL BE THE DATE (1) THAT IS AT LEAST
ONE YEAR AFTER THE LAST ORIGINAL ISSUE DATE HEREOF AND (2) ON WHICH THE
COMPANY INSTRUCTS THE TRUSTEE THAT THIS LEGEND SHALL BE DEEMED REMOVED FROM
THIS SECURITY, IN ACCORDANCE WITH THE PROCEDURES DESCRIBED IN THE INDENTURE
RELATING TO THIS SECURITY.


 


PRIOR
TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (2)(D) ABOVE, THE
COMPANY AND THE TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL
OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED
IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE
WITH THE SECURITIES ACT AND 


 


Appendix A-11

















 


APPLICABLE
STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.”


 


Each
Regulation S Security that is a Temporary Security issued pursuant to Section 2.10
shall bear a legend in substantially in the following form:


 


“THE
RIGHTS ATTACHING TO THIS REGULATION S GLOBAL SECURITY THAT IS A TEMPORARY
SECURITY, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR
DEFINITIVE SECURITY, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN).”


 


Each
Definitive Security shall bear the following additional legends:


 


“IN
CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND
TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY
REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.”


 


(i)            Each Security issued hereunder that has more than a de
minimis amount of original issue discount for U.S. Federal Income Tax purposes
shall bear a legend in substantially the following form:


 


“THIS
SECURITY IS ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR PURPOSES OF SECTION 1271
ET SEQ. OF THE INTERNAL REVENUE CODE.  TO
OBTAIN THE ISSUE PRICE, AMOUNT OF ORIGINAL ISSUE DISCOUNT, ISSUE DATE AND YIELD
TO MATURITY FOR SUCH SECURITIES, A HOLDER MAY SUBMIT WRITTEN REQUEST FOR
SUCH INFORMATION TO THE ISSUER AT THE FOLLOWING ADDRESS:  FGI HOLDING COMPANY, INC. C/O FREEDOM GROUP,
INC., 870 REMINGTON DRIVE, MADISON, NC 27025, ATTENTION:  GENERAL COUNSEL.”


 


(ii)           Upon any sale or transfer of a
Transfer Restricted Definitive Security that is a Definitive Security, the
Registrar shall permit the Holder thereof to exchange such Transfer Restricted
Definitive Security for a Definitive Security that does not bear the legends
set forth above and rescind any restriction on the transfer of such Transfer
Restricted Definitive Security if the Holder certifies in writing to the
Registrar that its request for such exchange was made in reliance on Rule 144
(such certification to be in the form set forth on the reverse of the Initial
Security).


 


(iii)          After a transfer of any Initial
Securities during the period of the effectiveness of a Shelf Registration
Statement with respect to such Initial 
Securities, all requirements pertaining to the Restricted Securities
Legend on such Initial Securities shall cease to apply and the requirements
that any such Initial Securities be issued in global form shall continue to
apply.


 


Appendix A-12

















 


(iv)          Upon the consummation of a Registered
Exchange Offer with respect to the Initial Securities pursuant to which Holders
of such Initial Securities are offered Exchange Securities in exchange for
their Initial Securities, all requirements pertaining to Initial Securities
that Initial Securities be issued in global form shall continue to apply, and
Exchange Securities in global form 
without the Restricted Securities Legend shall be available to Holders
that exchange such Initial Securities in such Registered Exchange Offer.


 


(v)           Upon a sale or transfer after the
expiration of the Restricted Period of any Initial Security acquired pursuant
to Regulation S, all requirements that such Initial Security bear the
Restricted Securities Legend shall cease to apply and the requirements
requiring any such Initial Security be issued in global form shall continue to
apply.


 


(vi)          Any Additional Securities sold in a
registered offering shall not be required to bear the Restricted Securities
Legend.


 


(g)           Cancellation or Adjustment of
Global Security.  At such time as all
beneficial interests in a particular Global Security have been exchanged for
Definitive Securities or a particular Global Security has been redeemed,
repurchased or canceled in whole and not in part, each such Global Security
shall be returned to or retained and canceled by the Trustee in accordance with
Section 2.11 of this Indenture.  At
any time prior to such cancellation, if any beneficial interest in a Global
Security is exchanged for or transferred to a Person who will take delivery
thereof in the form of a beneficial interest in another Global Security or for
Definitive Securities, the principal amount of Securities represented by such
Global Security shall be reduced accordingly and an endorsement shall be made
on such Global Security by the Trustee or by the Depository, 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 Security, such other Global
Security shall be increased accordingly and an endorsement shall be made on
such Global Security by the Trustee or by the Depository, at the direction of
the Trustee to reflect such increase.


 


(h)           Obligations with Respect to
Transfers and Exchanges of Securities.


 


(i)            To permit registrations of transfers
and exchanges, the Company shall execute and the Trustee shall authenticate,
Definitive Securities and Global Securities at the Registrar’s request.


 


(ii)           No service charge shall be made for
any registration of transfer or exchange, but the Company may require payment
of a sum sufficient to cover any transfer tax, assessments, or similar
governmental charge payable in connection therewith (other than any such
transfer taxes, assessments or similar governmental charge payable upon
exchanges pursuant to Sections 3.10, 4.06, 4.08 and 9.05 of this
Indenture).


 


(iii)          Prior to the due presentation for
registration of transfer of any Security, the Company, the Trustee, a Paying
Agent or the Registrar may deem and treat the person in whose name a Security
is registered as the absolute owner of such Security for the purpose of
receiving payment of principal of and interest on such Security and for all
other purposes whatsoever, 


 


Appendix A-13

















 


whether
or not such Security is overdue, and none of the Company, the Trustee, a Paying
Agent or the Registrar  shall be affected
by notice to the contrary.


 


(iv)          All Securities issued upon any
transfer or exchange pursuant to the terms of this Indenture shall evidence the
same debt and shall be entitled to the same benefits under this Indenture as
the Securities surrendered upon such transfer or exchange.


 


(i)            No Obligation of the Trustee.


 


(i)            The Trustee shall have no
responsibility or obligation to any beneficial owner of a Global Security, a
member of, or a participant in the Depository or any other Person with respect
to the accuracy of the records of the Depository or its nominee or of any
participant or member thereof, with respect to any ownership interest in the
Securities or with respect to the delivery to any participant, member,
beneficial owner or other Person (other than the Depository) of any notice
(including any notice of redemption or repurchase) or the payment of any
amount, under or with respect to such Securities.  All notices and communications to be given to
the Holders and all payments to be made to the Holders under the Securities
shall be given or made only to the registered Holders (which shall be the
Depository or its nominee in the case of a Global Security).  The rights of beneficial owners in any Global
Security shall be exercised only through the Depository subject to the applicable
rules and procedures of the Depository. 
The Trustee may rely and shall be fully protected in relying upon
information furnished by the Depository with respect to its members,
participants and any beneficial owners.


 


(ii)           The Trustee shall have no obligation
or duty to monitor, determine or inquire as to compliance with any restrictions
on transfer imposed under this Indenture or under applicable law with respect
to any transfer of any interest in any Security (including any transfers
between or among Depository participants, members or beneficial owners in any
Global Security) other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so if and
when expressly required by, the terms of this Indenture, and to examine the
same to determine substantial compliance as to form with the express
requirements hereof.


 


(j)            [INTENTIONALLY OMITTED].


 


(k)           Transfers of Securities Held by
Affiliates.  Notwithstanding anything
to the contrary in this Section 2.2 any certificate (i) evidencing a
Security that has been transferred to an affiliate (as defined in Rule 405
of the Securities Act) of the Company, as evidenced by a notation on the
certificate of transfer or certificate of exchange for such transfer or in the
representation letter delivered in respect thereof, or (ii) evidencing a
Security that has been acquired from an affiliate (other than by an affiliate)
in a transaction or a chain of transactions not involving any public offering,
as evidenced by a notation on the certificate of transfer or certificate of
exchange for such transfer or in the representation letter delivered in respect
thereof, shall, until one year after the last date on which either the Company
or any affiliate of the Company was an owner of such Security, in each case, be
in the form of a permanent Definitive Security and bear the Restricted
Securities Legend subject to the restrictions in this Section 2.2.  The Registrar shall retain copies of all
letters, notices and other written communications received pursuant to this Section 2.2(k).  The Company, at its sole cost and expense,
shall have the right to inspect and make copies of all such letters, notices or
other written communications at any reasonable time upon the giving of
reasonable advance written notice to the Trustee.


 


Appendix A-14














 


EXHIBIT A


 


[FORM OF FACE OF INITIAL SECURITY]


 


[Global Securities Legend]


 


UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE
COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.


 


TRANSFERS
OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN
PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S
NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE
REFERRED TO ON THE REVERSE HEREOF.


 


[Restricted Securities Legend]


 


THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS
ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER:


 


(1)           REPRESENTS
THAT IT, AND ANY ACCOUNT FOR WHICH IT IS ACTING, IS A “QUALIFIED INSTITUTIONAL
BUYER” (WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT) AND THAT IT
EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, AND


 


(2)           AGREES
FOR THE BENEFIT OF THE COMPANY THAT IT WILL NOT OFFER, SELL, PLEDGE OR
OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE
RESALE RESTRICTION TERMINATION DATE (AS DEFINED IN THE NEXT PARAGRAPH), EXCEPT:


 


(A)          TO
THE COMPANY OR ANY SUBSIDIARY THEREOF, OR


 


Ex. A-1

















 


(B)           PURSUANT
TO A REGISTRATION STATEMENT THAT HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT,
OR


 


(C)           TO
A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT, OR


 


(D)          PURSUANT
TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT
OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.


 


THE
RESALE RESTRICTION TERMINATION DATE WILL BE THE DATE (1) THAT IS AT LEAST
ONE YEAR AFTER THE LAST ORIGINAL ISSUE DATE HEREOF AND (2) ON WHICH THE
COMPANY INSTRUCTS THE TRUSTEE THAT THIS LEGEND SHALL BE DEEMED REMOVED FROM
THIS SECURITY, IN ACCORDANCE WITH THE PROCEDURES DESCRIBED IN THE INDENTURE
RELATING TO THIS SECURITY.


 


PRIOR
TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (2)(D) ABOVE, THE
COMPANY AND THE TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL
OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED
IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE
WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION
IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.


 


[Temporary Regulation S Security Legend]


 


THE
RIGHTS ATTACHING TO THIS REGULATION S GLOBAL SECURITY THAT IS A TEMPORARY
SECURITY, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR A
DEFINITIVE SECURITY, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN).


 


[OID Legend]


 


THIS
SECURITY IS ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR PURPOSES OF SECTION 1271
ET SEQ. OF THE INTERNAL REVENUE CODE AND WILL BE TREATED AS A CONTINGENT
PAYMENT DEBT INSTRUMENT FOR U.S. FEDERAL INCOME TAX PURPOSES.  TO OBTAIN THE ISSUE PRICE, AMOUNT OF ORIGINAL
ISSUE DISCOUNT, ISSUE DATE, COMPARABLE YIELD AND PROJECTED PAYMENT SCHEDULE FOR
SUCH SECURITIES, A HOLDER MAY SUBMIT A WRITTEN REQUEST FOR SUCH
INFORMATION TO THE ISSUER AT THE FOLLOWING ADDRESS:  FGI HOLDING COMPANY, INC., C/O FREEDOM GROUP,
INC., 870 REMINGTON DRIVE, MADISON, NC 27025, ATTENTION:  GENERAL COUNSEL.


 


Each
Definitive Security shall bear the following additional legend:


 


IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL
DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER
INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT
THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.


 


Ex. A-2

















 


[FORM OF INITIAL SECURITY]


 


	
  No.

  	
   

  	
  $               

  



 


11.25%/11.75% Senior Pay-In-Kind Note due 2015


 


CUSIP No. [144A: 30250K AA7 / Reg S: U31549 AA3]


ISIN No. [144A: US30250KAA79 / Reg S: USU31549AA38]


 


FGI
HOLDING COMPANY, INC., a Delaware corporation, promises to pay to
[                   ],
or registered assigns, the principal sum of                 Dollars
[or such greater or lesser amount as is indicated on the Schedule of Increases
or Decreases in Global Security attached hereto]* on October 1, 2015.


 


Interest Payment Dates:  April 1
and October 1.


 


Record Dates:  March 15 and September 15.


 


Additional
provisions of this Security are set forth on the other side of this Security.


 


IN
WITNESS WHEREOF, the Company has caused this instrument to be duly executed.


 


	
   

  	
  FGI
  HOLDING COMPANY, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


Dated:


 


TRUSTEE’S
CERTIFICATE OF AUTHENTICATION


 


WILMINGTON
TRUST FSB,


as
Trustee, certifies that this is one of the Securities referred to in the
Indenture.


 


 


	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized
  Signatory

  	
   

  



 






*/                              If the Security
is to be issued in global form, add the Global Securities Legend and the
attachment from Exhibit A captioned “TO BE ATTACHED TO GLOBAL SECURITIES -
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY.”


 


Ex. A-3

















 


[FORM OF REVERSE SIDE OF INITIAL SECURITY]


 


11.25%/11.75% Senior Pay-In-Kind Note due 2015


 


1.                                       Interest


 


(a)           FGI HOLDING COMPANY, INC.,
a Delaware corporation (such corporation, and its successors and assigns
under the Indenture hereinafter referred to, being herein called the “Company”),
promises to pay interest on the principal amount of this Security at the rate
per annum shown above.  The Company shall
pay interest semiannually on April 1 and October 1 of each year (each
an “Interest Payment Date”), commencing October 1, 2010.(a)  Interest on the Securities shall accrue from
the most recent date to which interest has been paid or duly provided for or,
if no interest has been paid or duly provided for, from April 7, 2010(a)
until the principal hereof is due. 
Interest shall be computed on the basis of a 360-day year of twelve
30-day months.  The Company shall pay
default interest on overdue principal, and it shall pay default interest on
overdue installments of interest at the same rate to the extent lawful.  On or prior to April 1, 2015, interest
will be payable, at the election of the Company (made by delivering a notice to
the Trustee not later than 10 Business Days prior to the beginning of each such
interest period) (1) entirely in cash (“Cash Interest”), or (2) 50%
as Cash Interest and 50% by increasing the principal amount of the outstanding
Securities or by issuing additional PIK Notes (“PIK Interest”); provided, that if FGI Opco would not be
permitted pursuant to either of the Applicable Opco Covenants to pay a dividend
or distribution to the Company in an amount sufficient to pay the Cash Interest
Requirement in full on the relevant Interest Payment Date, then the Company
shall on such Interest Payment Date (i) use the proceeds of any dividend
or distribution permitted to be paid to the Company pursuant to both of the
Applicable Opco Covenants to pay Cash Interest and (ii) pay any remaining
interest owing on the Securities in PIK Interest; provided further, that if FGI Opco would not be permitted
pursuant to either of the Applicable Opco Covenants to pay a dividend or
distribution to the Company in an amount sufficient to pay any amount of Cash
Interest due under clause (2) above with respect to a particular
Interest Payment Date, then interest on the Securities for such Interest
Payment Date shall be payable entirely as set forth below (and a notice will be
delivered to the Trustee not later than 10 Business Days prior to the beginning
of such interest period). For any interest period after April 1, 2015,
interest will be payable in cash on October 1, 2015.


 


Additional
Interest shall accrue and be payable under the circumstances set forth in the
Registration Rights Agreement described below. As described more fully below,
Special Interest and default interest may also be payable in respect of one or
more Interest Payment Dates. Notwithstanding anything to the contrary contained
herein or in the Indenture, any Additional Interest, Special Interest or
default interest on the Securities will be payable in cash and will be payable
prior to (and, to the extent applicable, will reduce the amount of cash
available on any Interest Payment Date to pay) the Cash Interest
Requirement.  References herein to “interest”



 






(a)       With respect to Securities issued on the
Issue Date. 


 


 


Ex. A-4

















 


shall
be deemed to include any such Additional Interest, Special Interest or default
interest.


 


Interest
on overdue principal and interest, if any, will accrue at a rate that is 2%
higher than the then applicable interest rate on the Securities (such interest “default
interest”).  The interest rate on the
Securities will in no event be higher than the maximum rate permitted by
applicable law.


 


In
the absence of an all Cash Interest payment election made by the Company as set
forth above, interest on the Securities will be payable in the manner described
in clause (2) of the preceding paragraph. The Company shall pay the
first interest payment on October 1, 2010 in 50% Cash Interest and 50% PIK
Interest. Notwithstanding anything to the contrary, the payment of accrued
interest in connection with any redemption of Securities, as described in
Paragraph 5, Paragraph 6 and Paragraph 8 herein, as well as in Sections 4.06
and 4.08 of the Indenture, shall be made solely in cash. The amount of cash, if
any, that FGI Opco will be permitted to distribute in cash in respect of any
particular Interest Payment Date under the Applicable Opco Covenants will be
determined in good faith.


 


For
interest payments on the Securities that the Company elects to pay entirely as
Cash Interest, Cash Interest will accrue at a rate equal to 11.25% per annum
(which, for example, will increase to 13.25% per annum for any Special Interest
Period) and shall be payable in cash. For interest payments on the Securities
that the Company elects to pay 50% as Cash Interest and 50% as PIK Interest,
Cash Interest on the Securities will accrue at a rate equal to 5.875% per annum
and PIK Interest on the Securities will accrue at a rate equal to 5.875% per
annum; provided, that if FGI Opco
would not be permitted pursuant to either of the Applicable Opco Covenants to
pay a dividend or distribution to the Company in an amount sufficient to pay
the Cash Interest Requirement in full with respect to a particular Interest
Payment Date, then the amount of interest on the Securities to be paid as Cash
Interest will be reduced for such Interest Payment Date, and the amount of
interest that will be paid as PIK Interest will be increased, as set forth in
the following sentence. In such case where the Cash Interest Requirement is not
met, then the Company will pay an amount of Cash Interest equal to what is then
permitted to be paid pursuant to both of the Applicable Opco Covenants and will
pay PIK Interest at a rate equal to 5.875% per annum plus an amount of basis
points (expressed in interest rate percentage terms) equal to the Increased
Interest Rate Calculation. At all times, PIK Interest on the Securities will be
payable (x) with respect to Securities represented by one or more Global
Securities registered in the name of, or held by, The Depository Trust Company
(“DTC”) or its nominee on the relevant record date, by increasing the
principal amount of the outstanding Global Security by an amount equal to the
amount of PIK Interest for the applicable interest period (rounded down to the
nearest whole dollar) as provided in writing by the Company (signed by an
Officer) to the Trustee and (y) with respect to Securities represented by
Definitive Securities, by issuing PIK Notes in certificated form in an
aggregate principal amount equal to the amount of PIK Interest for the
applicable interest period (rounded down to the nearest whole dollar), and the
Trustee will, at the request of the Company, authenticate and deliver such PIK
Notes in certificated form for original issuance to the holders on the relevant
record date, as shown by the records of the register of Holders. Following an
increase in the principal amount of the outstanding Global Securities as a
result of a PIK Payment, the Securities will bear interest on such increased
principal amount 


 


Ex. A-5

















 


from
and after the date of such PIK Payment. Any PIK Notes issued in certificated
form will be dated as of the applicable Interest Payment Date and will bear
interest from and after such date. All Securities issued pursuant to a PIK
Payment will mature on October 1, 2015 and will be governed by, and
subject to the terms, provisions and conditions of, the Indenture and shall
have the same rights and benefits as the Securities issued on the Issue Date.
Any certificated PIK Notes will be issued with the description “PIK” on the
face of such PIK Note.


 


If
on the last day of any fiscal quarter of the Company (the “Calculation Date”)
the Company’s EBITDA for the most recently ended four full fiscal quarters for
which internal financial statements are available and as to which a calculation
can be made (determined on a pro forma basis to give effect to pro forma events
(as defined in the definition of Fixed Charge Coverage Ratio) that occur during
the four-quarter reference period as if such pro forma events had occurred on
the first day of the four-quarter reference period) is less than
$115.0 million (the “Specified EBITDA Amount”), then the 90-day
period commencing on the calendar day immediately following the Calculation
Date shall be a “Special Interest Period” for purposes of accruing 200
basis points of increased interest (“Special Interest”) as described in
the preceding paragraph. If the Company or any of its Restricted Subsidiaries
consummates an acquisition, the Specified EBITDA Amount shall be increased by
85% of the acquired entity’s positive EBITDA (but shall not be decreased by
such acquired entity’s negative EBITDA) for the most recently ended four full
fiscal quarters for which internal financial statements are available and as to
which a calculation can be made. In giving pro forma effect to any pro forma
event, the pro forma calculations shall be made as set forth in the definition
of Fixed Charge Coverage Ratio. The Company will provide the Trustee written
notice of the commencement of or discontinuance of any Special Interest Period.


 


To
the extent any Special Interest is due, or if an Increased Interest Rate
Calculation is made, with respect to a particular Interest Payment Date, at least
30 days prior to such Interest Payment Date the Company will provide to the
Trustee a written statement identifying the amount of Cash Interest and PIK
Interest to be paid and the applicable rates associated with such interest
payments.


 


(b)           Registration Rights Agreement.  The Holder of this Security is entitled to
the benefits of a Registration Rights Agreement, dated as of April 7,
2010, among the Company, Parent and the Initial Purchasers.


 


2.                                       Method of
Payment


 


The
Company shall pay interest on the Securities (except defaulted interest) to the
Persons who are registered Holders at the close of business on the March 15
or September 15 next preceding the Interest Payment Date even if
Securities are canceled after the record date and on or before the Interest
Payment Date (whether or not a Business Day). 
The Holders must surrender Securities to a Paying Agent to collect
principal payments.  The Company shall
pay principal, premium, if any, and Cash Interest in money of the
United States of America that at the time of payment is legal tender for
payment of public and private debts. 
Payments in respect of the Securities represented by a Global Security
(including principal, premium, if any, and Cash Interest) shall be made by wire
transfer of immediately available funds to the accounts specified by DTC or any
successor depositary.  The Company will
make all payments in respect of a Definitive 


 


Ex. A-6

















 


Security
(including principal, premium, if any, and Cash Interest), at the office of
each Paying Agent, except that, at the option of the Company, payment of Cash
Interest may be made by mailing a check to the registered address of each
Holder thereof; provided, however, that payments on the Securities
may also be made, in the case of a Holder of at least $1,000,000 aggregate
principal amount of Securities, by wire transfer to a U.S. dollar account
maintained by the payee with a bank in the United States if such Holder
elects payment by wire transfer by giving written notice to the Trustee or a
Paying Agent to such effect designating such account no later than 30 days
immediately preceding the relevant due date for payment (or such other date as
the Trustee may accept in its discretion).


 


3.                                       Paying Agent
and Registrar


 


Initially,
Wilmington Trust FSB (the “Trustee”) will act as Paying Agent and
Registrar.  The Company may appoint and
change any Paying Agent or Registrar without notice.  The Company or any of its domestically
incorporated Wholly Owned Subsidiaries may act as Paying Agent or Registrar.


 


4.                                       Indenture


 


The
Company issued the Securities under an Indenture dated as of April 7, 2010
(the “Indenture”), among the Company, Parent and the Trustee.  The terms of the Securities include those
stated in the Indenture and those made part of the Indenture by reference to
the Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb) as in effect
on the date of the Indenture (the “TIA”).  Terms defined in the Indenture and not
defined herein have the meanings ascribed thereto in the Indenture.  The Securities are subject to all terms and
provisions of the Indenture, and the Holders are referred to the Indenture and
the TIA for a statement of such terms and provisions.  To the extent any provision of this Security
conflicts with the express provisions of the Indenture, the provisions of the
Indenture shall govern and be controlling.


 


The
Securities are senior obligations of the Company.  This Security is one of the Initial
Securities referred to in the Indenture. 
The Securities include the Initial Securities and any Exchange
Securities issued in exchange for Initial Securities pursuant to the
Indenture.  The Initial Securities, any
Exchange Securities and any Additional Securities are treated as a single class
of securities under the Indenture.  The
Indenture imposes certain limitations on the ability of the Company and its
Restricted Subsidiaries to, among other things, make certain Investments and
other Restricted Payments, pay dividends and other distributions, incur Indebtedness,
enter into consensual restrictions upon the payment of certain dividends and
distributions by such Restricted Subsidiaries, issue or sell shares of capital
stock of the Company and such Restricted Subsidiaries, enter into or permit
certain transactions with Affiliates, create or incur Liens and make asset
sales.  The Indenture also imposes
limitations on the ability of the Company to consolidate or merge with or into
any other Person or convey, transfer or lease all or substantially all of its
property.


 


To
guarantee the due and punctual payment of the principal and interest, on the
Securities and all other amounts payable by the Company under the Indenture and
the Securities when and as the same shall be due and payable, whether at
maturity, by acceleration or otherwise, according to the terms of the
Securities and the Indenture, the Guarantors (which as of the 


 


Ex. A-7

















 


Issue
Date is only the Parent) have, jointly and severally, unconditionally guaranteed
the Guaranteed Obligations on a senior basis pursuant to the terms of the
Indenture; provided that the
Guarantee given by Parent may be released and Parent discharged from all
obligations under the Indenture at any time upon written notice to the Trustee
from Parent.


 


5.                                       Optional
Redemption


 


Except
as set forth in the following two paragraphs, the Securities shall not be
redeemable at the option of the Company prior to October 1, 2011.  Thereafter, the Securities shall be
redeemable at the option of the Company, in whole at any time or in part from
time to time, upon not less than 30 days’ nor more than 60 days’ prior
notice, at the following redemption prices (expressed as a percentage of
principal amount), plus accrued and unpaid interest, to, but not including, the
redemption date (subject to the right of the Holders of record on the relevant
regular record date to receive interest due on an Interest Payment Date that is
on or prior to the redemption date), if redeemed during the 18-month period beginning
on the dates indicated below:


 


	
  Period Beginning

  	
   

  	
  Redemption Price

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  October 1, 2011

  	
   

  	
  105.000

  	
  %

  
	
  April 1, 2013

  	
   

  	
  102.500

  	
  %

  
	
  October 1, 2014 and thereafter

  	
   

  	
  100.000

  	
  %

  



 


In
addition, at any time prior to October 1, 2011, the Company may redeem the
Securities at its option, in whole at any time or in part from time to time,
upon not less than 30 nor more than 60 days’ prior notice, at a redemption
price equal to 100% of the principal amount of the Securities redeemed plus the
Applicable Premium as of, and accrued and unpaid interest, to, the applicable
redemption date (subject to the right of the Holders of record on the relevant
record date to receive interest due on the relevant Interest Payment Date).


 


Notwithstanding
the foregoing, at any time and from time to time on or prior to October 1,
2011, the Company may redeem 100% of the outstanding Securities upon the
occurrence of a Third Party Sale, at a redemption price equal to 106% of the
principal amount thereof, plus accrued and unpaid interest, if any, to the
redemption date (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant Interest Payment Date); provided, however,
that such redemption shall occur within 90 days after the date on which any
such Third Party Sale is consummated upon not less than 30 nor more than 60
days’ notice mailed to each Holder of Securities being redeemed and otherwise
in accordance with the procedures set forth in the Indenture. The Company’s
right to optionally redeem the Securities upon a Third Party Sale does not
limit or qualify any obligation the Company has to make a Change of Control
Offer.


 


In
addition, if such redemption is subject to satisfaction of one or more
conditions precedent, such notice of redemption shall describe each such
condition, and if applicable, shall state that, in the Company’s discretion,
the redemption date may be delayed within the foregoing 30 to 60 day notice
period until such time as any or all such conditions shall be satisfied, or
such redemption may not occur and such notice may be rescinded in the event
that any or all such 


 


Ex. A-8

















 


conditions
shall not have been satisfied by the stated redemption date, or by the
redemption date as so delayed.


 


6.             Mandatory Redemption


 


The
Company will be required to redeem the maximum principal amount of Securities
that is in minimum denominations of $2,000 and an integral multiple of $1,000
in excess thereof (or if a PIK Payment has been made, in minimum denominations
of $1.00 and any integral multiple of $1.00 in excess thereof) that may be
redeemed out of any Qualified Equity Issuance Net Proceeds in cash (A) prior
to October 1, 2011, at a price of 106% of the principal amount thereof and
(B) thereafter, at the redemption price set forth in Paragraph 5 above,
and in each case plus accrued and unpaid interest, if any, to, but not
including, the date fixed for the closing of such redemption, in accordance
with the procedures set forth in the Indenture.


 


If
more Securities are tendered pursuant to a Qualified Equity Issuance Redemption
than the Company is required to redeem, the principal amount of the Securities
to be redeemed will be determined pro rata based on the principal amount so
tendered and the selection of the actual Securities for redemption will be made
by the Trustee on a pro rata basis by lot or by such other method as the
Trustee deems fair and appropriate; provided,
however, that no Securities of
$2,000 principal amount or less shall be redeemed in part.


 


7.                                       Sinking Fund


 


The
Securities are not subject to any sinking fund.


 


8.                                       Notice of
Redemption


 


Notice
of redemption will be mailed by first-class mail at least 30 days but not
more than 60 days before the redemption date, in the case of an optional
redemption, and not later than 60 days following the receipt of the Qualified
Equity Issuance Net Proceeds from any Qualified Equity Issuance, in the case of
a mandatory redemption, to each Holder of Securities to be redeemed at his, her
or its registered address or otherwise in accordance with the procedures of
DTC.  Securities in denominations larger
than $2,000 may be redeemed in part but only in whole multiples of $1,000 to
the extent practicable (or if a PIK Payment has been made, in minimum
denominations of $1.00 and any integral multiple of $1.00 in excess
thereof).  If money sufficient to pay the
redemption price of and accrued and unpaid interest on all Securities (or
portions thereof) to be redeemed on the redemption date is deposited with a
Paying Agent on or before the redemption date and certain other conditions are
satisfied, on and after such date, interest ceases to accrue on such Securities
(or such portions thereof) called for redemption.


 


9.                                       Repurchase of
Securities at the Option of Holders upon Change of Control and Asset Sales


 


Upon
the occurrence of a Change of Control, each Holder shall have the right,
subject to certain conditions specified in the Indenture, to cause the Company
to repurchase all or any part of such Holder’s Securities at a purchase price
in cash equal to 101% of the principal amount thereof, plus accrued and unpaid
interest, if any, to the date of repurchase (subject to the 


 


Ex. A-9

















 


right
of the Holders of record on the relevant record date to receive interest due on
the relevant Interest Payment Date), as provided in, and subject to the terms
of, the Indenture.


 


In
accordance with Section 4.06 of the Indenture, the Company will be
required to offer to purchase Securities upon the occurrence of certain events.


 


10.                                 Denominations; Transfer;
Exchange


 


The
Securities are in registered form, without coupons, in denominations of $2,000
and any integral multiple of $1,000 in excess thereof (or if a PIK Payment has
been made, in minimum denominations of $1.00 and any integral multiple of $1.00
in excess thereof).  A Holder shall
register the transfer of or exchange of Securities in accordance with the
Indenture.  Upon any registration of
transfer or exchange, the Registrar and the Trustee may require a Holder, among
other things, to furnish appropriate endorsements or transfer documents and to
pay any taxes required by law or permitted by the Indenture.  The Registrar need not register the transfer
of or exchange any Securities selected for redemption (except, in the case of a
Security to be redeemed in part, the portion of the Security not to be
redeemed) or to transfer or exchange any Securities for a period of
15 days prior to a selection of Securities to be redeemed.


 


11.                                 Persons Deemed Owners


 


The
registered Holder of this Security shall be treated as the owner of it for all
purposes.


 


12.                                 Unclaimed Money


 


If
money for the payment of principal or interest remains unclaimed for two years,
the Trustee and a Paying Agent shall pay the money back to the Company at its
written request unless an abandoned property law designates another
Person.  After any such payment, the
Holders entitled to the money must look to the Company for payment as general
creditors and the Trustee and a Paying Agent shall have no further liability
with respect to such monies.


 


13.                                 Discharge and Defeasance


 


Subject
to certain conditions, the Company at any time may terminate some of or all its
obligations under the Securities and the Indenture if the Company deposits with
the Trustee money or U.S. Government Obligations for the payment of principal
of, and interest on the Securities to redemption, or maturity, as the case may
be.


 


14.                                 Amendment, Waiver


 


Subject
to certain exceptions set forth in the Indenture, (i) the Indenture or the
Securities may be amended with the written consent of the Holders of at least a
majority in aggregate principal amount of the outstanding Securities (voting as
a single class) and (ii) any past default or compliance with any
provisions may be waived with the written consent of the Holders of at least a
majority in principal amount of the outstanding Securities.  Subject to certain exceptions set forth in
the Indenture, without the consent of any Holder, the Company and the Trustee 


 


Ex. A-10

















 


may
amend the Indenture or the Securities (i) to cure any ambiguity, omission,
defect or inconsistency; (ii) to comply with Article 5 of the
Indenture; (iii) to provide for uncertificated Securities in addition to
or in place of Definitive Securities, including, in the event that PIK Notes
are issued in certificated form, to make appropriate amendments to the
Indenture to reflect an appropriate minimum denomination of certificated PIK
Notes and establish minimum redemption amounts for certificated PIK Notes; (iv) to
add additional Guarantees with respect to the Securities or to secure the
Securities; (v) to add to the covenants of the Company for the benefit of
the Holders or to surrender any right or power conferred in the Indenture upon
the Company; (vi) to comply with the requirements of the SEC in order to
effect or maintain the qualification of the Indenture under the TIA; (vii) to
make any change that does not adversely affect the rights of any Holder or (viii) to
provide for the issuance of the Exchange Securities or Additional Securities.


 


15.                                 Defaults and Remedies


 


If
an Event of Default occurs (other than an Event of Default relating to certain
events of bankruptcy, insolvency or reorganization of the Company) and is
continuing, the Trustee or the Holders of at least 25% in principal amount of
the outstanding Securities, in each case, by notice to the Company, may declare
the principal of, premium, if any, and accrued but unpaid interest on all the
Securities to be due and payable.  If an
Event of Default relating to certain events of bankruptcy, insolvency or
reorganization of the Company occurs, the principal of, premium, if any, and
interest on all the Securities shall become immediately due and payable without
any declaration or other act on the part of the Trustee or any Holders.  Under certain circumstances, the Holders of a
majority in principal amount of the outstanding Securities may rescind any such
acceleration with respect to the Securities and its consequences.


 


If
an Event of Default occurs and is continuing, the Trustee shall be under no
obligation to exercise any of the rights or powers under the Indenture at the
request or direction of any of the Holders unless such Holders have offered to
the Trustee indemnity or security satisfactory to it against any loss,
liability or expense and certain other conditions are complied with.  Except to enforce the right to receive
payment of principal, premium (if any) or interest when due, no Holder may
pursue any remedy with respect to the Indenture or the Securities unless (i) such
Holder has previously given the Trustee notice that an Event of Default is
continuing, (ii) the Holders of at least 25% in principal amount of the outstanding
Securities have requested the Trustee in writing to pursue the remedy, (iii) such
Holders have offered the Trustee reasonable security or indemnity against any
loss, liability or expense, (iv) the Trustee has not complied with such
request within 60 days after the receipt of the request and the offer of
security or indemnity and (v) the Holders of a majority in principal
amount of the outstanding Securities have not given the Trustee a direction
inconsistent with such request within such 60-day period.  Subject to certain restrictions, the Holders
of a majority in principal amount of the outstanding Securities are given the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or of exercising any trust or power conferred
on the Trustee.  The Trustee, however,
may refuse to follow any direction that conflicts with law or the Indenture or
that the Trustee determines is unduly prejudicial to the rights of any other
Holder or that would involve the Trustee in personal liability.  Prior to taking any action under the
Indenture, the Trustee shall be entitled to indemnification satisfactory to it
in its sole discretion against all losses and expenses caused by taking or not
taking such action.


 


Ex. A-11






 










 


16.           Trustee Dealings with the Company


 


Subject
to certain limitations imposed by the TIA, the Trustee under the Indenture, in
its individual or any other capacity, may become the owner or pledgee of
Securities and may otherwise deal with and collect obligations owed to it by
the Company or its Affiliates and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not Trustee.


 


17.                                 No Recourse Against Others


 


No
director, officer, employee, incorporator or holder of any equity interests in
the Company or of any Guarantor or any direct or indirect parent corporation,
as such, shall have any liability for any obligations of the Company or the
Guarantors under the Securities, the Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation.  Each Holder of Securities by accepting a
Security waives and releases all such liability.


 


18.                                 Authentication


 


This
Security shall not be valid until an authorized signatory of the Trustee (or an
authenticating agent) manually signs the certificate of authentication on the
other side of this Security.


 


19.                                 Abbreviations


 


Customary
abbreviations may be used in the name of a Holder or an assignee, such as TEN
COM (=tenants in common), TEN ENT (=tenants by the entireties), JT TEN (=joint
tenants with rights of survivorship and not as tenants in common), CUST
(=custodian), and U/G/M/A (=Uniform Gift to Minors Act).


 


 


20.                                 Governing Law


 


THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.


 


21.                                 CUSIP Numbers, ISINs and
Common Codes


 


The
Company has caused CUSIP numbers and ISINs to be printed on the Securities and
has directed the Trustee to use CUSIP numbers and ISINs.  No representation is made as to the accuracy
of such numbers either as printed on the Securities 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 of Securities
upon written request and without charge to the Holder a copy of the Indenture
which has in it the text of this Security.


 


Ex. A-12

















 


ASSIGNMENT FORM


 


To
assign this Security, fill in the form below:


 


I
or we assign and transfer this Security to:


 


	
   

  
	
  (Print or type assignee’s name, address and zip
  code)

  
	
   

  
	
   

  
	
  (Insert assignee’s soc. sec. or tax I.D. No.)

  



 


and
irrevocably
appoint                           agent
to transfer this Security on the books of the Company.  The agent may substitute another to act for
him.


 


	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
  Your Signature:

  	
   

  
	
   

  
	
   

  
	
  Sign exactly as your
  name appears on the other side of this Security.

  
	
   

  
	
  Date:

  	
   

  	
   

  	
   

  
	
   

  	
  Signature of Signature Guarantee

  



 


 


	
  Signature Guarantee:

  	
   

  	
   

  
	
   

  	
  Signature must be guaranteed by a participant in a
  recognized signature guaranty medallion program or other signature guarantor
  program reasonably acceptable to the Trustee

  	
   

  



 


Ex. A-13

















 


CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR

REGISTRATION OF TRANSFER RESTRICTED SECURITIES


 


This
certificate relates to
$                  
principal amount of Securities held in (check applicable space)
         book-entry or
           definitive form by
the undersigned.


 


The
undersigned:


 


o                                    has requested
the Trustee by written order to deliver in exchange for its beneficial interest
in the Global Security held by the Depository a Security or Securities in
definitive, registered form of authorized denominations and an aggregate
principal amount equal to its beneficial interest in such Global Security (or
the portion thereof indicated above); and


 


check
the following, if applicable:


 


o                                    is an affiliate
of the Company as contemplated in Section 2.2(k) of Appendix A to the
Indenture; or


 


o                                    is exchanging
this Security in connection with an expected transfer to an affiliate of the
Company as contemplated in Section 2.2(k) of Appendix A to the
Indenture.


 


o            has requested the Trustee by written order to exchange or
register the transfer of a Security or Securities; and


 


check the following, if applicable:


 


o                                    is an affiliate
of the Company as contemplated in Section 2.2(k) of Appendix A to the
Indenture; or


 


o                                    the transferee
is an affiliate of the Company as contemplated in Section 2.2(k) of
Appendix A to the Indenture.


 


In
connection with any transfer of any of the Securities evidenced by this
certificate occurring prior to the expiration of the period referred to in Rule 144
under the Securities Act, the undersigned confirms that such Securities
are being transferred in accordance with its terms:


 


CHECK
ONE BOX BELOW


 


	
  (1)

  	
  o

  	
  to
  the Company or a Subsidiary thereof; or

  
	
   

  	
   

  	
   

  
	
  (2)

  	
  o

  	
  to
  the Registrar for registration in the name of the Holder, without transfer;
  or

  
	
   

  	
   

  	
   

  
	
  (3)

  	
  o

  	
  pursuant
  to an effective registration statement under the Securities Act of 1933; or

  



 


Ex. A-14

















 


	
  (4)

  	
  o

  	
  inside
  the United States to a “qualified institutional buyer” (as defined in
  Rule 144A under the Securities Act of 1933) that purchases for its own
  account or for the account of a qualified institutional buyer to whom notice
  is given that such transfer is being made in reliance on Rule 144A, in
  each case pursuant to and in compliance with Rule 144A under the
  Securities Act of 1933; or

  
	
   

  	
   

  	
   

  
	
  (5)

  	
  o

  	
  outside
  the United States in an offshore transaction within the meaning of
  Regulation S under the Securities Act in compliance with Rule 904 under
  the Securities Act of 1933 and such Security shall be held immediately after
  the transfer through Euroclear or Clearstream until the expiration of the
  Restricted Period (as defined in the Indenture); or

  
	
   

  	
   

  	
   

  
	
  (6)

  	
  o

  	
  to
  an institutional “accredited investor” (as defined in Rule 501(a)(1),
  (2), (3) or (7) under the Securities Act of 1933) that has
  furnished to the Trustee a signed letter containing certain representations
  and agreements; or

  
	
   

  	
   

  	
   

  
	
  (7)

  	
  o

  	
  pursuant
  to another available exemption from registration provided by Rule 144
  under the Securities Act of 1933.

  



 


Unless
one of the boxes is checked, the Trustee will refuse to register any of the
Securities evidenced by this certificate in the name of any Person other than
the registered Holder thereof; provided, however, that if box (5), (6) or
(7) is checked, the Trustee may require, prior to registering any such
transfer of the Securities, such legal opinions, certifications and other
information as the Company has reasonably requested to confirm that such
transfer is being made pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act of 1933.


 


 


	
  Date:

  	
   

  	
   

  	
  Your
  Signature

  	
   

  



 


 


	
  Signature
  Guarantee:

  	
   

  	
   

  
	
   

  	
  Signature
  must be guaranteed by a participant in a recognized signature guaranty
  medallion program or other signature guarantor program reasonably acceptable
  to the Trustee

  	
   

  



 


	
  Date:

  	
   

  	
   

  	
   

  
	
   

  	
  Signature
  of Signature Guarantee

  



 


	
   

  



 


TO BE COMPLETED BY PURCHASER IF (4) ABOVE IS CHECKED.


 


The
undersigned represents and warrants that it is purchasing this Security for its
own account or an account with respect to which it exercises sole investment
discretion and that 


 


Ex. A-15

















 


it
and any such account is a “qualified institutional buyer” within the meaning of
Rule 144A under the Securities Act of 1933, and is aware that the sale to
it is being made in reliance on Rule 144A and acknowledges that it has
received such information regarding the Company as the undersigned has
requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is relying upon the
undersigned’s foregoing representations in order to claim the exemption from
registration provided by Rule 144A.


 


	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  NOTICE:
  To be executed by an executive officer

  



 


Ex. A-16

















 


[TO BE ATTACHED TO GLOBAL SECURITIES]


 


SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY


 


The
initial principal amount of this Global Security is set forth on the face
hereof.  The following increases or
decreases in this Global Security have been made:


 


	
  Date of

  Exchange

  	
   

  	
  Amount
  of

  decrease in 

  Principal 

  Amount of this

  Global 

  Security

  	
   

  	
  Amount
  of 

  increase in 

  Principal 

  Amount of this

  Global 

  Security

  	
   

  	
  Principal
  

  amount of this

  Global 

  Security following such

  decrease or 

  increase

  	
   

  	
  Signature
  of

  authorized 

  signatory of 

  Trustee or 

  Securities 

  Custodian

  	
   

  	
  PIK
  Increases

  	
   

  	
  Other 

  Increases

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


Ex. A-17

















 


OPTION OF HOLDER TO ELECT PURCHASE


 


If
you want to elect to have this Security purchased by the Company pursuant to Section 4.06
(Asset Sale) or 4.08 (Change of Control) of the Indenture, check the box:


 


	
  Asset Sale  o

  	
  Change
  of Control  o

  



 


If
you want to elect to have only part of this Security purchased by the Company
pursuant to Section 4.06 (Asset Sale) or 4.08 (Change of Control) of
the Indenture, state the amount ($1,000 or an integral multiple thereof):


 


$    


 


	
  Date:

  	
   

  	
   

  	
  Your
  Signature:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (Sign
  exactly as your name appears on the other side of this Security)

  



 


	
  Signature
  Guarantee:

  	
   

  	
   

  
	
   

  	
  Signature
  must be guaranteed by a participant in a recognized signature guaranty
  medallion program or other signature guarantor program reasonably acceptable
  to the Trustee

  	
   

  



 


Ex. A-18






 










 


EXHIBIT B


 


[FORM OF FACE OF EXCHANGE SECURITY]


[Global Securities Legend]


 


UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE
COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.


 


TRANSFERS
OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN
PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S
NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE
REFERRED TO ON THE REVERSE HEREOF.


 


Ex. B-1

















 


	
  No.

  	
  $                 

  



 


11.25%/11.75% Senior
Pay-In-Kind Note due 2015


 


CUSIP No. [          ]


ISIN No. [          ]


 


FGI
HOLDING COMPANY, INC., a Delaware corporation, promises to pay to
[                   ],
or registered assigns, the principal sum of                 Dollars
[or such greater or lesser amount as is indicated on the Schedule of Increases
or Decreases in Global Security attached hereto]* on October 1, 2015.


 


Interest Payment Dates:  April 1
and October 1.


 


Record Dates:  March 15 and September 15.


 


Additional
provisions of this Security are set forth on the other side of this Security.


 


IN
WITNESS WHEREOF, the Company has caused this instrument to be duly executed.


 


	
   

  	
  FGI HOLDING COMPANY, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
  Dated:

  	
   

  



 


TRUSTEE’S CERTIFICATE OF

AUTHENTICATION


 


WILMINGTON TRUST FSB,

as Trustee, certifies that this is

one of the Securities referred to 

in the Indenture.


 


	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized Signatory

  



 






	
  */

  	
  If the Security is to be issued in global form, add the Global
  Securities Legend and the attachment from Exhibit A captioned “TO
  BE ATTACHED TO GLOBAL SECURITIES - SCHEDULE OF INCREASES OR DECREASES IN
  GLOBAL SECURITY.”

  



 


Ex. B-2

















 


[FORM OF REVERSE SIDE OF EXCHANGE SECURITY]


 


11.25%/11.75% Senior Pay-In-Kind Note due 2015


 


1.                                       Interest


 


FGI
HOLDING COMPANY, INC., a Delaware corporation (such corporation, and its
successors and assigns under the Indenture hereinafter referred to, being
herein called the “Company”), promises to pay interest on the principal
amount of this Security at the rate per annum shown above.  The Company shall pay interest semiannually
on April 1 and October 1 of each year (each an “Interest Payment
Date”), commencing October 1, 2010.(a) 
Interest on the Securities shall accrue from the most recent date to
which interest has been paid or duly provided for or, if no interest has been
paid or duly provided for, from April 7, 2010(a) until the principal
hereof is due.  Interest shall be
computed on the basis of a 360-day year of twelve 30-day months.  The Company shall pay default interest on
overdue principal, and it shall pay default interest on overdue installments of
interest at the same rate to the extent lawful. On or prior to April 1,
2015, interest will be payable, at the election of the Company (made by
delivering a notice to the Trustee not later than 10 Business Days prior to the
beginning of each such interest period) (1) entirely in cash (“Cash
Interest”), or (2) 50% as Cash Interest and 50% by increasing the principal
amount of the outstanding Securities or by issuing additional PIK Notes (“PIK
Interest”); provided, that if
FGI Opco would not be permitted pursuant to either of the Applicable Opco
Covenants to pay a dividend or distribution to the Company in an amount
sufficient to pay the Cash Interest Requirement in full on the relevant
Interest Payment Date, then the Company shall on such Interest Payment Date (i) use
the proceeds of any dividend or distribution permitted to be paid to the
Company pursuant to both of the Applicable Opco Covenants to pay Cash Interest
and (ii) pay any remaining interest owing on the Securities in PIK
Interest; provided further, that
if FGI Opco would not be permitted pursuant to either of the Applicable Opco
Covenants to pay a dividend or distribution to the Company in an amount
sufficient to pay any amount of Cash Interest due under clause (2) above
with respect to a particular Interest Payment Date, then interest on the
Securities for such Interest Payment Date shall be payable entirely as set
forth below (and a notice will be delivered to the Trustee not later than 10
Business Days prior to the beginning of such interest period). For any interest
period after April 1, 2015, interest will be payable in cash on October 1,
2015.


 


Additional
Interest shall accrue and be payable under the circumstances set forth in the
Registration Rights Agreement described below. As described more fully below,
Special Interest and default interest may also be payable in respect of one or
more Interest Payment Dates. Notwithstanding anything to the contrary contained
herein or in the Indenture, any Additional Interest, Special Interest or
default interest on the Securities will be payable in cash and will be payable
prior to (and, to the extent applicable, will reduce the amount of cash
available on any Interest Payment Date to pay) the Cash Interest Requirement.  References herein to “interest”


 






(a)           With
respect to the Securities exchanged for Securities issued on the Issue Date. 


 


Ex. B-3

















 


shall
be deemed to include any such Additional Interest, Special Interest or default
interest.


 


Interest
on overdue principal and interest, if any, will accrue at a rate that is 2%
higher than the then applicable interest rate on the Securities (such interest “default
interest”).  The interest rate on the
Securities will in no event be higher than the maximum rate permitted by
applicable law.


 


In
the absence of an all Cash Interest payment election made by the Company as set
forth above, interest on the Securities will be payable in the manner described
in clause (2) of the preceding paragraph. The Company shall pay the
first interest payment on October 1, 2010 in 50% Cash Interest and 50% PIK
Interest. Notwithstanding anything to the contrary, the payment of accrued
interest in connection with any redemption of Securities, as described in
Paragraph 5, Paragraph 6 and Paragraph 8 herein, as well as in Sections 4.06
and 4.08 of the Indenture, shall be made solely in cash. The amount of cash, if
any, that FGI Opco will be permitted to distribute in cash in respect of any
particular Interest Payment Date under the Applicable Opco Covenants will be
determined in good faith.


 


For
interest payments on the Securities that the Company elects to pay entirely as
Cash Interest, Cash Interest will accrue at a rate equal to 11.25% per annum (which,
for example, will increase to 13.25% per annum for any Special Interest Period)
and shall be payable in cash. For interest payments on the Securities that the
Company elects to pay 50% as Cash Interest and 50% as PIK Interest, Cash
Interest on the Securities will accrue at a rate equal to 5.875% per annum and
PIK Interest on the Securities will accrue at a rate equal to 5.875% per annum;
provided, that if FGI Opco would
not be permitted pursuant to either of the Applicable Opco Covenants to pay a
dividend or distribution to the Company in an amount sufficient to pay the Cash
Interest Requirement in full with respect to a particular Interest Payment
Date, then the amount of interest on the Securities to be paid as Cash Interest
will be reduced for such Interest Payment Date, and the amount of interest that
will be paid as PIK Interest will be increased, as set forth in the following
sentence. In such case where the Cash Interest Requirement is not met, then the
Company will pay an amount of Cash Interest equal to what is then permitted to
be paid pursuant to both of the Applicable Opco Covenants and will pay PIK
Interest at a rate equal to 5.875% per annum plus an amount of basis points
(expressed in interest rate percentage terms) equal to the Increased Interest
Rate Calculation. At all times, PIK Interest on the Securities will be payable (x) with
respect to Securities represented by one or more Global Securities registered
in the name of, or held by, The Depository Trust Company (“DTC”) or its
nominee on the relevant record date, by increasing the principal amount of the
outstanding Global Security by an amount equal to the amount of PIK Interest
for the applicable interest period (rounded down to the nearest whole dollar)
as provided in writing by the Company (signed by an Officer) to the Trustee and
(y) with respect to Securities represented by Definitive Securities, by
issuing PIK Notes in certificated form in an aggregate principal amount equal
to the amount of PIK Interest for the applicable interest period (rounded down
to the nearest whole dollar), and the Trustee will, at the request of the
Company, authenticate and deliver such PIK Notes in certificated form for
original issuance to the holders on the relevant record date, as shown by the
records of the register of Holders. Following an increase in the principal
amount of the outstanding Global Securities as a result of a PIK Payment, the
Securities will bear interest on such increased principal amount


 


Ex. B-4

















 


from
and after the date of such PIK Payment. Any PIK Notes issued in certificated
form will be dated as of the applicable Interest Payment Date and will bear
interest from and after such date. All Securities issued pursuant to a PIK
Payment will mature on October 1, 2015 and will be governed by, and subject to
the terms, provisions and conditions of, the Indenture and shall have the same
rights and benefits as the Securities issued on the Issue Date. Any
certificated PIK Notes will be issued with the description “PIK” on the face of
such PIK Note.


 


If
on the last day of any fiscal quarter of the Company (the “Calculation Date”)
the Company’s EBITDA for the most recently ended four full fiscal quarters for
which internal financial statements are available and as to which a calculation
can be made (determined on a pro forma basis to give effect to pro forma events
(as defined in the definition of Fixed Charge Coverage Ratio) that occur during
the four-quarter reference period as if such pro forma events had occurred on
the first day of the four-quarter reference period) is less than
$115.0 million (the “Specified EBITDA Amount”), then the 90-day
period commencing on the calendar day immediately following the Calculation
Date shall be a “Special Interest Period” for purposes of accruing 200
basis points of increased interest (“Special Interest”) as described in
the preceding paragraph. If the Company or any of its Restricted Subsidiaries
consummates an acquisition, the Specified EBITDA Amount shall be increased by
85% of the acquired entity’s positive EBITDA (but shall not be decreased by
such acquired entity’s negative EBITDA) for the most recently ended four full
fiscal quarters for which internal financial statements are available and as to
which a calculation can be made. In giving pro forma effect to any pro forma
event, the pro forma calculations shall be made as set forth in the definition
of Fixed Charge Coverage Ratio. The Company will provide the Trustee written
notice of the commencement of or discontinuance of any Special Interest Period.


 


To
the extent any Special Interest is due, or if an Increased Interest Rate
Calculation is made, with respect to a particular Interest Payment Date, at
least 30 days prior to such Interest Payment Date the Company will provide to
the Trustee a written statement identifying the amount of Cash Interest and PIK
Interest to be paid and the applicable rates associated with such interest
payments.


 


2.                                       Method of
Payment


 


The
Company shall pay interest on the Securities (except defaulted interest) to the
Persons who are registered Holders at the close of business on the March 15
or September 15 next preceding the Interest Payment Date even if
Securities are canceled after the record date and on or before the Interest
Payment Date (whether or not a Business Day). 
The Holders must surrender Securities to a Paying Agent to collect
principal payments.  The Company shall
pay principal, premium, if any, and Cash Interest in money of the
United States of America that at the time of payment is legal tender for
payment of public and private debts. 
Payments in respect of the Securities represented by a Global Security
(including principal, premium and Cash Interest) shall be made by wire transfer
of immediately available funds to the accounts specified by DTC or any
successor depositary.  The Company will
make all payments in respect of a Definitive Security (including principal,
premium, if any, and Cash Interest), at the office of a Paying Agent, except
that, at the option of the Company, payment of Cash Interest may be made by
mailing a check to the registered address of each Holder thereof; provided,
however, that payments on the


 


Ex. B-5

















 


Securities
may also be made, in the case of a Holder of at least $1,000,000 aggregate
principal amount of Securities, by wire transfer to a U.S. dollar account
maintained by the payee with a bank in the United States if such Holder
elects payment by wire transfer by giving written notice to the Trustee or a
Paying Agent to such effect designating such account no later than 30 days
immediately preceding the relevant due date for payment (or such other date as
the Trustee may accept in its discretion).


 


3.                                       Paying Agent
and Registrar


 


Initially,
Wilmington Trust FSB (the “Trustee”) will act as Paying Agent and
Registrar.  The Company may appoint and
change any Paying Agent or Registrar without notice.  The Company or any of its domestically
incorporated Wholly Owned Subsidiaries may act as Paying Agent or Registrar.


 


4.                                       Indenture


 


The
Company issued the Securities under an Indenture dated as of April 7, 2010
(the “Indenture”), among the Company, Parent and the Trustee.  The terms of the Securities include those
stated in the Indenture and those made part of the Indenture by reference to
the Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb) as in effect
on the date of the Indenture (the “TIA”).  Terms defined in the Indenture and not
defined herein have the meanings ascribed thereto in the Indenture.  The Securities are subject to all terms and
provisions of the Indenture, and the Holders are referred to the Indenture and
the TIA for a statement of such terms and provisions.  To the extent any provision of this Security
conflicts with the express provisions of the Indenture, the provisions of the
Indenture shall govern and be controlling.


 


The
Securities are senior obligations of the Company.  This Security is one of the Exchange
Securities referred to in the Indenture. 
The Securities include the Initial Securities, the Additional
Securities, any Exchange Securities and any Additional Securities issued in
exchange for the Initial Securities pursuant to the Indenture.  The Initial Securities and Exchange Securities
are treated as a single class of securities under the Indenture.  The Indenture imposes certain limitations on
the ability of the Company and its Restricted Subsidiaries to, among other
things, make certain Investments and other Restricted Payments, pay dividends
and other distributions, incur Indebtedness, enter into consensual restrictions
upon the payment of certain dividends and distributions by such Restricted
Subsidiaries, issue or sell shares of capital stock of the Company and such
Restricted Subsidiaries, enter into or permit certain transactions with
Affiliates, create or incur Liens and make Asset Sales.  The Indenture also imposes limitations on the
ability of the Company to consolidate or merge with or into any other Person or
convey, transfer or lease all or substantially all of its property.


 


To
guarantee the due and punctual payment of the principal and interest, if any,
on the Securities and all other amounts payable by the Company under the
Indenture and the Securities when and as the same shall be due and payable,
whether at maturity, by acceleration or otherwise, according to the terms of
the Securities and the Indenture, the Guarantors (which as of the Issue Date is
only the Parent) have, jointly and severally, unconditionally guaranteed the
Guaranteed Obligations on a senior basis pursuant to the terms of the
Indenture; provided that


 


Ex. B-6

















 


the
Guarantee given by Parent may be released and 
Parent discharged from all obligations under the Indenture at any time
upon written notice to the Trustee from Parent.


 


5.                                       Optional
Redemption


 


Except
as set forth in the following three paragraphs, the Securities shall not be
redeemable at the option of the Company prior to October 1, 2011.  Thereafter, the Securities shall be redeemable
at the option of the Company, in whole at any time or in part from time to
time, upon not less than 30 days’ nor more than 60 days’ prior notice, at
the following redemption prices (expressed as a percentage of principal
amount), plus accrued and unpaid interest, if any, to, but not including the
redemption date (subject to the right of the Holders of record on the relevant
regular record date to receive interest due on an Interest Payment Date that is
on or prior to the redemption date), if redeemed during the 18-month period
beginning on the dates indicated below:


 


	
  Period Beginning

  	
   

  	
  Redemption Price

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  October 1, 2011

  	
   

  	
  105.000

  	
  %

  
	
  April 1, 2013

  	
   

  	
  102.500

  	
  %

  
	
  October 1, 2014 and thereafter

  	
   

  	
  100.000

  	
  %

  



 


In
addition, prior to October 1, 2011, the Company may redeem the Securities
at its option, in whole at any time or in part from time to time, upon not less
than 30 nor more than 60 days’ prior notice, at a redemption price equal to
100% of the principal amount of the Securities redeemed plus the Applicable
Premium as of, and accrued and unpaid interest to, the applicable redemption
date (subject to the right of the Holders of record on the relevant record date
to receive interest due on the relevant Interest Payment Date).


 


Notwithstanding
the foregoing, at any time and from time to time on or prior to October 1,
2011, the Company may redeem 100% of the outstanding Securities upon the
occurrence of a Third Party Sale, at a redemption price equal to 106% of the
principal amount thereof, plus accrued and unpaid interest, if any, to the
redemption date (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant Interest Payment Date); provided, however,
that such redemption shall occur within 90 days after the date on which any
such Third Party Sale is consummated upon not less than 30 nor more than 60
days’ notice mailed to each Holder of Securities being redeemed and otherwise
in accordance with the procedures set forth in the Indenture.  The Company’s right to optionally redeem the
Securities upon a Third Party Sale does not limit or qualify any obligation the
Company has to make a Change of Control Offer.


 


In
addition, if such redemption is subject to satisfaction of one or more
conditions precedent, such notice of redemption shall describe each such
condition, and if applicable, shall state that, in the Company’s discretion,
the redemption date may be delayed within the foregoing 30 to 60 day notice
period until such time as any or all such conditions shall be satisfied, or
such redemption may not occur and such notice may be rescinded in the event
that any or all such conditions shall not have been satisfied by the stated
redemption date, or by the redemption date as so delayed.


 


Ex. B-7

















 


6.                                       Mandatory
Redemption


 


The
Company will be required to redeem the maximum principal amount of Securities
that is in minimum denominations of $2,000 and an integral multiple of $1,000
in excess thereof (or if a PIK Payment has been made, in minimum denominations
of $1.00 and any integral multiple of $1.00 in excess thereof) that may be
redeemed out of any Qualified Equity Issuance Net Proceeds in cash (A) prior
to October 1, 2011, at a price of 106% of the principal amount thereof and
(B) thereafter, at the redemption price set forth in Paragraph 5 above,
and in each case plus accrued and unpaid interest, if any, to, but not
including, the date fixed for the closing of such redemption, in accordance
with the procedures set forth in the Indenture.


 


If
more Securities are tendered pursuant to a Qualified Equity Issuance Redemption
than the Company is required to redeem, the principal amount of the Securities
to be redeemed will be determined pro rata based on the principal amount so
tendered and the selection of the actual Securities for redemption will be made
by the Trustee on a pro rata basis by lot or by such other method as the
Trustee deems fair and appropriate; provided,
however, that no Securities of
$2,000 principal amount or less shall be redeemed in part.


 


7.                                       Sinking Fund


 


The
Securities are not subject to any sinking fund.


 


8.                                       Notice of Redemption


 


Notice
of redemption will be mailed by first-class mail at least 30 days but not
more than 60 days before the redemption date, in the case of an optional
redemption, and not later than 60 days following the receipt of the Qualified
Equity Issuance Net Proceeds from any Qualified Equity Issuance, in the case of
a mandatory redemption, to each Holder of Securities to be redeemed at his, her
or its registered address or otherwise in accordance with the procedures of
DTC.  Securities in denominations larger
than $2,000 may be redeemed in part but only in whole multiples of $1,000 to
the extent practicable (or if a PIK Payment has been made, in minimum
denominations of $1.00 and any integral multiple of $1.00 in excess
thereof).  If money sufficient to pay the
redemption price of and accrued and unpaid interest on all Securities (or
portions thereof) to be redeemed on the redemption date is deposited with a
Paying Agent on or before the redemption date and certain other conditions are
satisfied, on and after such date interest ceases to accrue on such Securities
(or such portions thereof) called for redemption.


 


9.                                       Repurchase of
Securities at the Option of the Holders upon Change of Control and Asset Sales


 


Upon
the occurrence of a Change of Control, each Holder shall have the right,
subject to certain conditions specified in the Indenture, to cause the Company
to repurchase all or any part of such Holder’s Securities at a purchase price
in cash equal to 101% of the principal amount thereof, plus accrued and unpaid
interest, if any, to the date of repurchase (subject to the right of the
Holders of record on the relevant record date to receive interest due on the
relevant Interest Payment Date), as provided in, and subject to the terms of,
the Indenture.


 


Ex. B-8

















 


In
accordance with Section 4.06 of the Indenture, the Company will be
required to offer to purchase Securities upon the occurrence of certain events.


 


10.                                 Denominations;
Transfer; Exchange


 


The
Securities are in registered form without coupons in denominations of $2,000
and any integral multiple of $1,000 in excess thereof (or if a PIK Payment has
been made, in minimum denominations of $1.00 and any integral multiple of $1.00
in excess thereof).  A Holder shall
register the transfer of or exchange of Securities in accordance with the
Indenture.  Upon any registration of
transfer or exchange, the Registrar and the Trustee may require a Holder, among
other things, to furnish appropriate endorsements or transfer documents and to
pay any taxes required by law or permitted by the Indenture.  The Registrar need not register the transfer
of or exchange any Securities selected for redemption (except, in the case of a
Security to be redeemed in part, the portion of the Security not to be
redeemed) or to transfer or exchange any Securities for a period of
15 days prior to a selection of Securities to be redeemed.


 


11.                                 Persons Deemed
Owners


 


The
registered Holder of this Security shall be treated as the owner of it for all
purposes.


 


12.                                 Unclaimed Money


 


If
money for the payment of principal or interest remains unclaimed for two years,
the Trustee and a Paying Agent shall pay the money back to the Company at its
written request unless an abandoned property law designates another
Person.  After any such payment, the
Holders entitled to the money must look to the Company for payment as general
creditors and the Trustee and a Paying Agent shall have no further liability
with respect to such monies.


 


13.                                 Discharge and
Defeasance


 


Subject
to certain conditions, the Company at any time may terminate some of or all its
obligations under the Securities and the Indenture if the Company deposits with
the Trustee money or U.S. Government Obligations for the payment of principal
and interest on the Securities to redemption, or maturity, as the case may be.


 


14.                                 Amendment,
Waiver


 


Subject
to certain exceptions set forth in the Indenture, (i) the Indenture or the
Securities may be amended with the written consent of the Holders of at least a
majority in aggregate principal amount of the outstanding Securities (voting as
a single class) and (ii) any past default or compliance with any
provisions may be waived with the written consent of the Holders of at least a
majority in principal amount of the outstanding Securities.  Subject to certain exceptions set forth in
the Indenture, without the consent of any Holder, the Company and the Trustee
may amend the Indenture or the Securities (i) to cure any ambiguity,
omission, defect or inconsistency; (ii) to comply with Article 5 of
the Indenture; (iii) to provide for uncertificated Securities in addition
to or in place of Definitive Securities, including, in the event that PIK Notes
are


 


Ex. B-9

















 


issued
in certificated form, to make appropriate amendments to the Indenture to
reflect an appropriate minimum denomination of certificated PIK Notes and
establish minimum redemption amounts for certificated PIK Notes; (iv) to
add additional Guarantees with respect to the Securities or to secure the
Securities; (v) to add to the covenants of the Company for the benefit of
the Holders or to surrender any right or power conferred in the Indenture upon
the Company; (vi) to comply with the requirements of the SEC in order to
effect or maintain the qualification of the Indenture under the TIA; (vii) to
make any change that does not adversely affect the rights of any Holder; or (viii) to
provide for the issuance of the Exchange Securities or Additional Securities.


 


15.                                 Defaults and
Remedies


 


If
an Event of Default occurs (other than an Event of Default relating to certain
events of bankruptcy, insolvency or reorganization of the Company) and is
continuing, the Trustee or the Holders of at least 25% in principal amount of
the outstanding Securities, in each case, by notice to the Company, may declare
the principal of, premium, if any, and accrued but unpaid interest on all the
Securities to be due and payable.  If an
Event of Default relating to certain events of bankruptcy, insolvency or
reorganization of the Company occurs, the principal of, premium, if any, and
interest on all the Securities shall become immediately due and payable without
any declaration or other act on the part of the Trustee or any Holders.  Under certain circumstances, the Holders of a
majority in principal amount of the outstanding Securities may rescind any such
acceleration with respect to the Securities and its consequences.


 


If
an Event of Default occurs and is continuing, the Trustee shall be under no
obligation to exercise any of the rights or powers under the Indenture at the
request or direction of any of the Holders unless such Holders have offered to
the Trustee indemnity or security satisfactory to it against any loss,
liability or expense and certain other conditions are complied with.  Except to enforce the right to receive payment
of principal, premium (if any) or interest when due, no Holder may pursue any
remedy with respect to the Indenture or the Securities unless (i) such
Holder has previously given the Trustee notice that an Event of Default is
continuing, (ii) the Holders of at least 25% in principal amount of the
outstanding Securities have requested the Trustee in writing to pursue the
remedy, (iii) such Holders have offered the Trustee reasonable security or
indemnity against any loss, liability or expense, (iv) the Trustee has not
complied with such request within 60 days after the receipt of the request
and the offer of security or indemnity and (v) the Holders of a majority
in principal amount of the outstanding Securities have not given the Trustee a
direction inconsistent with such request within such 60-day period.  Subject to certain restrictions, the Holders
of a majority in principal amount of the outstanding Securities are given the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or of exercising any trust or power conferred
on the Trustee.  The Trustee, however,
may refuse to follow any direction that conflicts with law or the Indenture or
that the Trustee determines is unduly prejudicial to the rights of any other
Holder or that would involve the Trustee in personal liability.  Prior to taking any action under the
Indenture, the Trustee shall be entitled to indemnification satisfactory to it
in its sole discretion against all losses and expenses caused by taking or not
taking such action.


 


Ex. B-10

















 


16.                                 Trustee
Dealings with the Company


 


Subject
to certain limitations imposed by the TIA, the Trustee under the Indenture, in
its individual or any other capacity, may become the owner or pledgee of
Securities and may otherwise deal with and collect obligations owed to it by
the Company or its Affiliates and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not Trustee.


 


17.                                 No Recourse
Against Others


 


No
director, officer, employee, incorporator or holder of any equity interests in
the Company or of any Guarantor or any direct or indirect parent corporation,
as such, shall have any liability for any obligations of the Company or the
Guarantors under the Securities, the Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation.  Each Holder of Securities by accepting a
Security waives and releases all such liability.


 


18.                                 Authentication


 


This Security shall not be valid until an authorized signatory of the
Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Security.


 


19.                                 Abbreviations


 


Customary
abbreviations may be used in the name of a Holder or an assignee, such as TEN
COM (=tenants in common), TEN ENT (=tenants by the entireties), JT TEN (=joint
tenants with rights of survivorship and not as tenants in common), CUST
(=custodian), and U/G/M/A (=Uniform Gift to Minors Act).


 


20.                                 Governing Law


 


THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.


 


21.                                 CUSIP Numbers,
ISINs and Common Codes


 


The
Company has caused CUSIP numbers and ISINs to be printed on the Securities and
has directed the Trustee to use CUSIP numbers and ISINs.  No representation is made as to the accuracy
of such numbers either as printed on the Securities 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 of Securities
upon written request and without charge to the Holder a copy of the Indenture
which has in it the text of this Security.


 


Ex. B-11

















 


ASSIGNMENT FORM


 


To
assign this Security, fill in the form below:


 


I
or we assign and transfer this Security to:


 


	
   

  
	
  (Print
  or type assignee’s name, address and zip code)

  



 


	
   

  
	
  (Insert
  assignee’s soc. sec. or tax I.D. No.)

  



 


and
irrevocably
appoint                           agent
to transfer this Security on the books of the Company.  The agent may substitute another to act for
him.


 




 





 


 


	
  Date:

  	
   

  	
   

  	
  Your
  Signature:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Sign
  exactly as your name appears on the other side of this Security.

  



 


	
  Signature
  Guarantee:

  	
   

  	
   

  
	
   

  	
  Signature
  must be guaranteed by a participant in a recognized signature guaranty
  medallion program or other signature guarantor program reasonably acceptable
  to the Trustee

  	
   

  



 


	
  Date:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature
  of Signature Guarantee

  



 


Ex. B-12

















 


OPTION OF HOLDER TO ELECT PURCHASE


 


If
you want to elect to have this Security purchased by the Company pursuant to Section 4.06
(Asset Sale) or 4.08 (Change of Control) of the Indenture, check the box:


 


	
  Asset
  Sale o

  	
  Change
  of Control o

  



 


If
you want to elect to have only part of this Security purchased by the Company
pursuant to Section 4.06 (Asset Sale) or 4.08 (Change of Control) of
the Indenture, state the amount ($1,000 or an integral multiple thereof):


 


$


 


	
  Date:

  	
   

  	
   

  	
  Your
  Signature:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (Sign
  exactly as your name appears on the other side of this Security)

  
	
   

  
	
  Signature
  Guarantee:

  	
   

  
	
   

  	
  Signature
  must be guaranteed by a participant in a recognized signature guaranty
  medallion program or other signature guarantor program reasonably acceptable
  to the Trustee.

  
						



 


Ex. B-13

















 


[TO BE ATTACHED TO GLOBAL
SECURITIES]


 


SCHEDULE OF INCREASES OR
DECREASES IN GLOBAL SECURITY


 


The
initial principal amount of this Global Security is set forth on the face
hereof.  The following increases or
decreases in this Global Security have been made:


 


	
  Date
  of

  Exchange

  	
   

  	
  Amount of

  decrease in

  Principal

  Amount of this

  Global

  Security

  	
   

  	
  Amount of

  increase in

  Principal

  Amount of this

  Global

  Security

  	
   

  	
  Principal

  amount of this

  Global

  Security

  following such

  decrease or

  increase

  	
   

  	
  Signature of

  authorized

  signatory of

  Trustee or

  Securities

  Custodian

  	
   

  	
  PIK Increases

  	
   

  	
  Other

  Increases

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


Ex. B-14






 










 


EXHIBIT C


 


Form of


Transferee Letter of
Representation


 


FGI
Holding Company, Inc.


 


c/o
Wilmington Trust FSB 


246
Goose Lane, Suit 105


Guilford,
CT 06437


 


Ladies
and Gentlemen:


 


This
certificate is delivered to request a transfer of $[              ] principal
amount of the 11.25%/11.75% Senior Pay-In-Kind Notes due 2015 (the “Securities”)
of FGI HOLDING COMPANY, INC. (the “Company”).


 


Upon
transfer, the Securities would be registered in the name of the new beneficial
owner as follows:


 


Name:


 


Address:


 


Taxpayer
ID Number:


 


The
undersigned represents and warrants to you that:


 


1.             We are an institutional “accredited
investor” (as defined in Rule 501(a)(1), (2), (3) or (7) under
the Securities Act of 1933, as amended (the “Securities Act”)),
purchasing for our own account or for the account of such an institutional “accredited
investor” at least $250,000 principal amount of the Securities, and we are
acquiring the Securities not with a view to, or for offer or sale in connection
with, any distribution in violation of the Securities Act.  We 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 Securities, and we invest in or purchase
securities similar to the Securities in the normal course of our business.  We, and any accounts for which we are acting,
are each able to bear the economic risk of our or its investment.


 


2.             We understand that the Securities
have not been registered under the Securities Act and, unless so registered,
may not be sold except as permitted in the following sentence.  We agree on our own behalf and on behalf of
any investor account for which we are purchasing Securities to offer, sell or
otherwise transfer such Securities prior to the date that is one year after the
later of the date of original issue and the last date on which the Company or
any affiliate of the Company was the owner of such Securities (or any
predecessor thereto) (the “Resale Restriction Termination Date”) only (a) to
the Company, (b) pursuant to a registration statement that has been
declared effective under the Securities Act, (c) in a transaction
complying with the requirements of Rule 144A under the Securities Act (“Rule 144A”),
to a person we


 


Ex. C-1

















 


reasonably
believe is a qualified institutional buyer under Rule 144A (a “QIB”)
that is purchasing for its own account or for the account of a QIB and to whom
notice is given that the transfer is being made in reliance on Rule 144A, (d) pursuant
to offers and sales that occur outside the United States within the meaning of
Regulation S under the Securities Act, (e) to an institutional “accredited
investor” within the meaning of Rule 501(a)(1), (2), (3) or (7) under
the Securities Act that is purchasing for its own account or for the account of
such an institutional “accredited investor,” in each case in a minimum
principal amount of Securities of $250,000, or (f) pursuant to any other
available exemption from the registration requirements of the Securities Act,
subject in each of the foregoing cases to any requirement of law that the
disposition of our property or the property of such investor account or
accounts be at all times within our or their control and in compliance with any
applicable state securities laws.  The
foregoing restrictions on resale will not apply subsequent to the Resale
Restriction Termination Date.  If any
resale or other transfer of the Securities is proposed to be made pursuant to
clause (e) above prior to the Resale Restriction Termination Date,
the transferor shall deliver a letter from the transferee substantially in the
form of this letter to the Company and the Trustee, which shall provide, among
other things, that the transferee is an institutional “accredited investor”
within the meaning of Rule 501(a)(1), (2), (3) or (7) under the
Securities Act and that it is acquiring such Securities for investment purposes
and not for distribution in violation of the Securities Act.  Each purchaser acknowledges that the Company
and the Trustee reserve the right prior to the offer, sale or other transfer
prior to the Resale Restriction Termination Date of the Securities pursuant to
clause (d), (e) or (f) above to require the delivery of an
opinion of counsel, certifications or other information satisfactory to the
Company and the Trustee.


 


	
  Dated:

  	
   

  	
   

  	
  TRANSFEREE:

  	
   

  	
  ,

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  by

  	
   

  
							



 


Ex. C-2














 


EXHIBIT D


 


[FORM OF SUPPLEMENTAL
INDENTURE]


 


SUPPLEMENTAL
INDENTURE (this “Supplemental Indenture”) dated as of 
[            ],
among [GUARANTOR] (the “New Guarantor”), a subsidiary of FGI HOLDING
COMPANY, INC. (or its successor), a Delaware corporation (the “Company”),
and WILMINGTON TRUST FSB,  as trustee
under the indenture referred to below (the “Trustee”).


 


W I T N E S S E T H :


 


WHEREAS
the Company and the existing Guarantors have heretofore executed and delivered
to the Trustee an Indenture (as amended, supplemented or otherwise modified,
the “Indenture”) dated as of April 7, 2010, providing for the
issuance of the Company’s 11.25%/11.75% Senior Pay-In-Kind Notes due 2015 (the “Securities”),
initially in the aggregate principal amount of $225,000,000;


 


WHEREAS
Section 4.10 of the Indenture provides that under certain circumstances
the Company is required to cause the New Guarantor to execute and deliver to
the Trustee a supplemental indenture pursuant to which the New Guarantor shall
unconditionally guarantee all the Company’s obligations under the Securities
pursuant to a Guarantee on the terms and conditions set forth herein; and


 


WHEREAS
pursuant to Section 9.01 of the Indenture, the Trustee, the Company and
the existing Guarantors are 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 New Guarantor,
the Company, and the Trustee mutually covenant and agree for the equal and
ratable benefit of the holders of the Securities as follows:


 


1.             Defined Terms.  As used in this Supplemental Indenture, terms
defined in the Indenture or in the preamble or recital hereto are used herein
as therein defined, except that the term “Holders” in this Guarantee
shall refer to the term “Holders” as defined in the Indenture and the Trustee
acting on behalf of and for the benefit of such Holders.  The words “herein,” “hereof” and hereby and
other words of similar import used in this Supplemental Indenture refer to this
Supplemental Indenture as a whole and not to any particular section hereof.


 


2.             Agreement to Guarantee.  The New Guarantor hereby agrees, jointly and
severally with all existing Guarantors (if any), to unconditionally guarantee
the Company’s obligations under the Securities on the terms and subject to the
conditions set forth in Article 10 of the Indenture and to be bound by all
other applicable provisions of the Indenture and the Securities and to perform
all of the obligations and agreements of a Guarantor under the Indenture.


 


3.             Ratification of Indenture;
Supplemental Indentures Part of Indenture.  Except as expressly amended hereby, the
Indenture is in all respects ratified and confirmed and all


 


Ex. D-1

















 


the
terms, conditions and provisions thereof shall remain in full force and
effect.  This Supplemental Indenture
shall form a part of the Indenture for all purposes, and every holder of
Securities heretofore or hereafter authenticated and delivered shall be bound
hereby.


 


4.             Notices.  All notices or other communications to the
New Guarantor shall be given as provided in Section 11.02 of the
Indenture.


 


5.             Governing Law.  THIS
SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.


 


6.             Trustee Makes No Representation.  The Trustee makes no representation as to the
validity or sufficiency of this Supplemental Indenture.


 


7.             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.


 


8.             Effect of Headings.  The Section headings herein are for
convenience only and shall not affect the construction thereof.


 


Ex. D-2

















 


IN
WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to
be duly executed as of the date first above written.


 


	
   

  	
  [NEW GUARANTOR]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  FGI HOLDING COMPANY, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  WILMINGTON TRUST FSB, AS
  TRUSTEE

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


Ex. D-3