Exhibit 4(a)


 


EXECUTION COPY


 


 


INDENTURE


 


Dated as of November 10, 2003


 


by and among


 


SUPERIOR ESSEX COMMUNICATIONS LLC and ESSEX GROUP, INC.,

as Issuers,


 


THE GUARANTORS (as defined herein), as Guarantors, and


 


THE BANK OF NEW YORK, as Trustee


 


$145,000,000


 


Second Priority Secured Notes due 2008


 

















 


TABLE OF CONTENTS


 


 


	
  ARTICLE 1 Definitions and Incorporation by
  Reference

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 1.1.

  	
  Definitions

  	
   

  
	
  SECTION 1.2.

  	
  Other Definitions

  	
   

  
	
  SECTION 1.3.

  	
  Incorporation by Reference of Trust
  Indenture Act

  	
   

  
	
  SECTION 1.4.

  	
  Rules of Construction

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2 The Senior Notes

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 2.1.

  	
  Dating; Incorporation of Form in Indenture

  	
   

  
	
  SECTION 2.2.

  	
  Execution and Authentication

  	
   

  
	
  SECTION 2.3.

  	
  Agents

  	
   

  
	
  SECTION 2.4.

  	
  Paying Agent to Hold Money in Trust

  	
   

  
	
  SECTION 2.5.

  	
  Noteholder Lists

  	
   

  
	
  SECTION 2.6.

  	
  Transfer and Exchange

  	
   

  
	
  SECTION 2.7.

  	
  Replacement Senior Notes

  	
   

  
	
  SECTION 2.8.

  	
  Outstanding Senior Notes

  	
   

  
	
  SECTION 2.9.

  	
  Temporary Senior Notes

  	
   

  
	
  SECTION 2.10.

  	
  Cancellation

  	
   

  
	
  SECTION 2.11.

  	
  Defaulted Interest

  	
   

  
	
  SECTION 2.12.

  	
  Deposit of Moneys

  	
   

  
	
  SECTION 2.13.

  	
  CUSIP Number

  	
   

  
	
  SECTION 2.14.

  	
  Payments to Holders

  	
   

  
	
  SECTION 2.15.

  	
  Book-Entry Provisions for Global Notes

  	
   

  
	
  SECTION 2.16.

  	
  Record Date

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3 Redemption

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 3.1.

  	
  Notices to Trustee

  	
   

  
	
  SECTION 3.2.

  	
  Selection by Trustee of Senior Notes to Be
  Redeemed

  	
   

  
	
  SECTION 3.3.

  	
  Notice of Redemption

  	
   

  
	
  SECTION 3.4.

  	
  Effect of Notice of Redemption

  	
   

  
	
  SECTION 3.5.

  	
  Deposit of Redemption Price

  	
   

  
	
  SECTION 3.6.

  	
  Senior Notes Redeemed in Part

  	
   

  
	
  SECTION 3.7.

  	
  Optional Redemption

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4 Covenants

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 4.1.

  	
  Payment of Senior Notes

  	
   

  
	
  SECTION 4.2.

  	
  Reports

  	
   

  
	
  SECTION 4.3.

  	
  Waiver of Stay, Extension or Usury Laws

  	
   

  
	
  SECTION 4.4.

  	
  Compliance Certificate

  	
   

  
	
  SECTION 4.5.

  	
  Payment of Taxes, Etc

  	
   

  
	
  SECTION 4.6.

  	
  Change of Control

  	
   

  
	
  SECTION 4.7.

  	
  Limitation on Additional Indebtedness

  	
   

  



 


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  SECTION 4.8.

  	
  Limitation on Restricted Payments

  	
   

  
	
  SECTION 4.9.

  	
  Limitations on Liens

  	
   

  
	
  SECTION 4.10.

  	
  Limitation on Certain Asset Sales

  	
   

  
	
  SECTION 4.11.

  	
  Limitation on Transactions with Affiliates

  	
   

  
	
  SECTION 4.12.

  	
  Limitations on Investments

  	
   

  
	
  SECTION 4.13.

  	
  Future Subsidiary Guarantors

  	
   

  
	
  SECTION 4.14.

  	
  Designation of Subsidiaries and
  Unrestricted Subsidiaries

  	
   

  
	
  SECTION 4.15.

  	
  Limitation on Dividends and Other Payment
  Restrictions Affecting Subsidiaries

  	
   

  
	
  SECTION 4.16.

  	
  Restriction on Sale and Issuance of Certain
  Subsidiary Equity Interests

  	
   

  
	
  SECTION 4.17.

  	
  Limitation on Sale and Lease-Back
  Transactions

  	
   

  
	
  SECTION 4.18.

  	
  Conduct of Business

  	
   

  
	
  SECTION 4.19.

  	
  Limitation on Status as Investment Company

  	
   

  
	
  SECTION 4.20.

  	
  Corporate Existence

  	
   

  
	
  SECTION 4.21.

  	
  Maintenance of Office or Agency

  	
   

  
	
  SECTION 4.22.

  	
  Maintenance of Insurance; Books and Records;
  Compliance with Laws

  	
   

  
	
  SECTION 4.23.

  	
  Further Assurances to the Trustee

  	
   

  
	
  SECTION 4.24.

  	
  Collateral Documents

  	
   

  
	
  SECTION 4.25.

  	
  Future Pledges of Collateral to Secure
  Secondary Senior Notes

  	
   

  
	
  SECTION 4.26.

  	
  Additional Pledges

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5 Successor Corporation

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 5.1.

  	
  Merger, Consolidation or Sale of Assets

  	
   

  
	
  SECTION 5.2.

  	
  Successor Person Substituted

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6 Defaults and Remedies

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 6.1.

  	
  Events of Default

  	
   

  
	
  SECTION 6.2.

  	
  Acceleration

  	
   

  
	
  SECTION 6.3.

  	
  Other Remedies

  	
   

  
	
  SECTION 6.4.

  	
  Waiver of Defaults and Events of Default

  	
   

  
	
  SECTION 6.5.

  	
  Control by Majority

  	
   

  
	
  SECTION 6.6.

  	
  Limitation on Suits

  	
   

  
	
  SECTION 6.7.

  	
  Rights of Holders to Receive Payment

  	
   

  
	
  SECTION 6.8.

  	
  Collection Suit by Trustee

  	
   

  
	
  SECTION 6.9.

  	
  Trustee May File Proofs of Claim

  	
   

  
	
  SECTION 6.10.

  	
  Priorities

  	
   

  
	
  SECTION 6.11.

  	
  Undertaking for Costs

  	
   

  
	
  SECTION 6.12.

  	
  Restoration of Rights and Remedies

  	
   

  
	
  SECTION 6.13.

  	
  Delay or Omission Not Waiver

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7 Trustee

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 7.1.

  	
  Duties of Trustee

  	
   

  
	
  SECTION 7.2.

  	
  Rights of Trustee

  	
   

  



 


iii

















 


	
  SECTION 7.3.

  	
  Individual Rights of Trustee

  	
   

  
	
  SECTION 7.4.

  	
  Trustee’s Disclaimer

  	
   

  
	
  SECTION 7.5.

  	
  Notice of Defaults

  	
   

  
	
  SECTION 7.6.

  	
  Reports by Trustee to Holders

  	
   

  
	
  SECTION 7.7.

  	
  Compensation and Indemnity

  	
   

  
	
  SECTION 7.8.

  	
  Replacement of Trustee

  	
   

  
	
  SECTION 7.9.

  	
  Successor Trustee by Consolidation, Merger
  or Conversion

  	
   

  
	
  SECTION 7.10.

  	
  Eligibility; Disqualification

  	
   

  
	
  SECTION 7.11.

  	
  Preferential Collection of Claims Against
  Issuers

  	
   

  
	
  SECTION 7.12.

  	
  Paying Agents

  	
   

  
	
  SECTION 7.13.

  	
  Co-Trustee and Separate Trustees

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 8 Amendments, Supplements and
  Waivers

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 8.1.

  	
  Without Consent of Holders

  	
   

  
	
  SECTION 8.2.

  	
  With Consent of Holders

  	
   

  
	
  SECTION 8.3.

  	
  Compliance with Trust Indenture Act

  	
   

  
	
  SECTION 8.4.

  	
  Revocation and Effect of Consents

  	
   

  
	
  SECTION 8.5.

  	
  Notation on or Exchange of Senior Notes

  	
   

  
	
  SECTION 8.6.

  	
  Trustee to Sign Amendments, etc

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9 Discharge Of Indenture;
  Defeasance

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 9.1.

  	
  Discharge of Indenture

  	
   

  
	
  SECTION 9.2.

  	
  Legal Defeasance

  	
   

  
	
  SECTION 9.3.

  	
  Covenant Defeasance

  	
   

  
	
  SECTION 9.4.

  	
  Conditions to Legal Defeasance or Covenant
  Defeasance

  	
   

  
	
  SECTION 9.5.

  	
  Deposited Money and U.S. Government Obligations to Be Held in Trust;
  Other Miscellaneous Provisions

  	
   

  
	
  SECTION 9.6.

  	
  Reinstatement

  	
   

  
	
  SECTION 9.7.

  	
  Moneys Held by Paying Agent

  	
   

  
	
  SECTION 9.8.

  	
  Moneys Held by Trustee

  	
   

  
	
  SECTION 9.9.

  	
  Senior Note Collateral

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10 Collateral And Security

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 10.1.

  	
  Security

  	
   

  
	
  SECTION 10.2.

  	
  Certificates, Opinions and Recording

  	
   

  
	
  SECTION 10.3.

  	
  Release of Collateral

  	
   

  
	
  SECTION 10.4.

  	
  Protection of the Trust Estate

  	
   

  
	
  SECTION 10.5.

  	
  Certificates of the Issuers

  	
   

  
	
  SECTION 10.6.

  	
  Certificates of the Trustee

  	
   

  
	
  SECTION 10.7.

  	
  Authorization of Actions to be Taken by the
  Collateral Agent Under the Collateral Documents

  	
   

  
	
  SECTION 10.8.

  	
  Authorization of Receipt of Funds by the
  Trustee Under the Collateral Documents

  	
   

  
	
  SECTION 10.9.

  	
  Termination of Security Interest

  	
   

  
	
  SECTION 10.10.

  	
  Cooperation of Trustee

  	
   

  
	
  SECTION 10.11.

  	
  Agents Under Collateral Documents.

  	
   

  



 


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  ARTICLE 11 Guarantee of Senior Notes

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 11.1.

  	
  Guarantee

  	
   

  
	
  SECTION 11.2.

  	
  Execution and Delivery of Guarantees

  	
   

  
	
  SECTION 11.3.

  	
  Limitation of Guarantee

  	
   

  
	
  SECTION 11.4.

  	
  Release of Guarantor

  	
   

  
	
  SECTION 11.5.

  	
  Additional Guarantors

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 12 Miscellaneous

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 12.1.

  	
  Trust Indenture Act Controls

  	
   

  
	
  SECTION 12.2.

  	
  Notices

  	
   

  
	
  SECTION 12.3.

  	
  Communications by Holders with Other
  Holders

  	
   

  
	
  SECTION 12.4.

  	
  Certificate and Opinion as to Conditions
  Precedent

  	
   

  
	
  SECTION 12.5.

  	
  Statements Required in Certificate and
  Opinion

  	
   

  
	
  SECTION 12.6.

  	
  When Treasury Senior Notes Disregarded

  	
   

  
	
  SECTION 12.7.

  	
  Rules by Trustee and Agents

  	
   

  
	
  SECTION 12.8.

  	
  Business Days; Legal Holidays

  	
   

  
	
  SECTION 12.9.

  	
  GOVERNING LAW

  	
   

  
	
  SECTION 12.10.

  	
  No Adverse Interpretation of Other
  Agreements

  	
   

  
	
  SECTION 12.11.

  	
  No Recourse Against Others

  	
   

  
	
  SECTION 12.12.

  	
  Successors

  	
   

  
	
  SECTION 12.13.

  	
  Multiple Counterparts

  	
   

  
	
  SECTION 12.14.

  	
  Table of Contents, Headings, etc

  	
   

  
	
  SECTION 12.15.

  	
  Separability

  	
   

  



 


v

















 


	
  EXHIBITS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  Form of Senior Note

  	
   

  
	
  Exhibit B

  	
  Form of Global Note Legend

  	
   

  
	
  Exhibit C

  	
  Form of Supplemental Indenture

  	
   

  
	
  Exhibit D

  	
  Initial Holders

  	
   

  
	
   

  	
   

  	
   

  
	
  SCHEDULES

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedule 1

  	
  List of Guarantors

  	
   

  
	
  Schedule 1.1

  	
  Certain Unrestricted Subsidiaries

  	
   

  



 


vi

















 


THIS INDENTURE is dated as of November 10,
2003 (the “Effective Date”), among SUPERIOR ESSEX COMMUNICATIONS LLC, a Delaware
limited liability company, (the “Company”), ESSEX GROUP, INC., a Michigan
corporation (the “Co-Issuer” and, together with the Company, the “Issuers”),
SUPERIOR ESSEX INC., a Delaware corporation (“Holdings”), SUPERIOR ESSEX
HOLDING CORP., a Delaware corporation and wholly-owned subsidiary of Holdings
(“Primary Intermediate Holdco”), ESSEX INTERNATIONAL INC. (“Secondary
Intermediate Holdco”), each subsidiary of the Issuers listed in the signature
pages hereto (each a “Subsidiary Guarantor”, and together with Holdings,
Primary Intermediate Holdco and Secondary Intermediate Holdco, the
“Guarantors”), and The Bank of New York, a New York banking corporation, as
trustee (the “Trustee”).


 


RECITALS


 


WHEREAS, on March 3, 2003, Superior Telecom
Inc., a Delaware corporation and the former parent corporation of the Issuers
(“Telecom”), the Issuers and certain of their wholly-owned subsidiaries filed a
voluntary petition under Chapter 11 of the United States Code, as amended (the
“Bankruptcy Code”) with the United States Bankruptcy Court for the District of
Delaware (the “Bankruptcy Court”);


 


WHEREAS, Telecom, the Issuers and certain of
the Guarantors filed a Plan of Reorganization (the “Plan”) which was approved
by the Bankruptcy Court on October 22, 2003;


 


WHEREAS, pursuant to the Plan, the Issuers
are required to issue the Senior Notes (as defined herein), to certain holders
of indebtedness of the Issuers and certain of the Guarantors outstanding on the
date the Plan was approved by the Bankruptcy Court;


 


WHEREAS, the Issuers have duly authorized the
creation of an issue of 9.5% Second Priority Secured Notes due 2008 (the
“Senior Notes”) and Secondary Senior Notes (as defined herein), if any, that
may be issued pursuant to paragraph 1 of the Senior Notes and, to provide
therefor, the Issuers have duly authorized the execution and delivery of this
Indenture;


 


WHEREAS, all things necessary to make the
Senior Notes, when executed by the Issuers, authenticated and delivered
hereunder and duly issued by the Issuers, the valid obligations of the Issuers,
and to make this Indenture a valid and binding agreement of the Issuers, in
accordance with their and its terms, have been done;


 


WHEREAS, each of the Guarantors has duly
authorized its Guarantee (as defined below) of the Senior Notes and Secondary
Senior Notes, if any, and, to provide therefor, each Guarantor has duly
authorized the execution and delivery of this Indenture; and


 


WHEREAS, all things necessary to make the
Guarantees, when executed by the Guarantors and when the Senior Notes have been
authenticated and delivered hereunder and duly issued by the Issuers, the valid
and binding obligations of the Guarantors, and to make this Indenture a valid
and binding agreement of the Guarantors, in accordance with their and its
terms, have been done;


 

















 


NOW, THEREFORE, THIS INDENTURE WITNESSETH:


 


For and in consideration of the premises and the acquisition of the
Senior Notes for the Holders thereof, it is mutually agreed, for the equal and
ratable benefit of all Holders of the Senior Notes, as follows:


 


ARTICLE 1


 


Definitions
and Incorporation by Reference


 


SECTION 1.1.                     Definitions.  All terms defined in the Plan of
Reorganization shall have such defined meanings when used herein or in any
Exhibit hereto unless otherwise defined herein or therein.  As used in this Agreement, the following
terms shall have the following meanings:


 


“Acquired Indebtedness” means Indebtedness of
a Person existing at the time such Person becomes a Subsidiary or assumed in
connection with an Asset Acquisition from such Person.


 


“Acquisition Indebtedness” means Indebtedness
incurred by either of the Issuers or by any one of their respective
Subsidiaries after the Issue Date the proceeds of which are used for an Asset
Acquisition.


 


“Additional Amounts” has the meaning set
forth in paragraph 1 of the Senior Notes.


 


“Adjusted Net Assets” of a Guarantor at any
date shall mean the lesser of (x) the amount by which the fair value of the
property of such Guarantor exceeds the total amount of liabilities (after
giving effect to all fixed and contingent liabilities (including, without
limitation, any guarantees of Indebtedness)), but excluding liabilities under
the Guarantee, of such Guarantor at such date and (y) the amount by which the
present fair salable value of the assets of such Guarantor at such date exceeds
the total amount of its debts (after giving effect to all fixed and contingent
liabilities (including, without limitation, any guarantees of Indebtedness),
and after giving effect to any collection from any Subsidiary of such Guarantor
in respect of the obligations of such Subsidiary under the Guarantee), but
excluding liabilities under the Guarantee.


 


“Administrative Agent” means Fleet Capital
Corporation, as Administrative Agent for the holders of the Senior Indebtedness
under the Credit Agreement, together with any successor Administrative Agent
appointed pursuant thereto.


 


“Affiliate” of any specified Person means any
other Person which directly or indirectly through one or more intermediaries
controls, or is controlled by, or is under common control with, such specified
Person. For the 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; provided that
beneficial ownership of 30% or more of the voting securities of either of the
Issuers, Primary Intermediate


 


2

















 


Holdco, Secondary Intermediate
Holdco or Holdings shall be deemed to be controlled solely for purposes of this
Indenture.


 


“Agent” means any Registrar, Paying Agent,
co-registrar or agent for service of notices and demands.


 


“Applicable Procedures” means, with respect
to any transfer or exchange of or for beneficial interests in any Global Note, the
rules and procedures of the Depositary, Euroclear and Clearstream that apply to
such transfer or exchange.


 


“Asset Acquisition” means (a) an Investment
by either of the Issuers or any Subsidiary of either of the Issuers in any
other Person pursuant to which such Person shall become a Subsidiary of either
of the Issuers, or shall be merged with or into either of the Issuers or any
Subsidiary of either of the Issuers, (b) the acquisition by either of the
Issuers or any Subsidiary of either of the Issuers of the assets of any Person
(other than a Subsidiary of either of the Issuers) which constitute all or
substantially all of the assets of such Person or (c) the acquisition by either
of the Issuers or any Subsidiary of either of the Issuers of any division or
line of business of any Person (other than a Subsidiary of either of the
Issuers).


 


“Asset Sale” means the direct or indirect
sale, transfer, issuance, conveyance, lease, sub-lease (as lessor or sublessor)
(other than operating leases entered into in the ordinary course of business),
assignment or other disposition (including, without limitation, by
Condemnation) and any merger or consolidation of any Subsidiary of either of
the Issuers with or into another Person (other than either of the Issuers or any
Wholly-Owned Subsidiary of either of the Issuers) of any property or asset; provided,
however, that Asset Sales shall not include (i) sales, issuances,
leases, conveyances, transfers, assignments or other dispositions to either of
the Issuers or to a Subsidiary of either of the Issuers or to any other Person
if after giving effect to such sale, issuance, lease, conveyance, transfer,
assignment or other disposition such other Person becomes a Wholly-Owned
Subsidiary of either of the Issuers, (ii) sales, issuances, leases,
conveyances, transfers, assignments or other dispositions of inventory in the
ordinary course of business, (iii) transactions complying with Section 5.1
hereof, (iv) sales, transfers, issuances, conveyances, leases, assignments or
other dispositions to either of the Issuers or any Wholly-Owned Subsidiary of
either of the Issuers, (v) sales, leases, conveyances, transfers or other
dispositions of obsolete, outmoded, worn out or surplus property, (vi) license,
as licensor or licensee, patents, trademarks, copyrights and know-how by either
of the Issuers or any Subsidiary to third Persons in the ordinary course of
business, (vii) leases or subleases granted by either of the Issuers or any of
their Subsidiaries to third Persons in arm’s-length transactions and not
interfering in any material respect with the business of either of the Issuers
or any of their Subsidiaries and (viii) with respect to the Issuers on a
combined basis, sales, leases, conveyances, transfers or other dispositions
with a fair market value less than $7.5 million in the aggregate during any
Fiscal Year and $20.0 million in the aggregate during the term of the Senior
Notes.


 


“Asset Sale Proceeds” means, with respect to
any Asset Sale, (i) cash or Temporary Cash Investments received by either of
the Issuers or any Subsidiary thereof from such Asset Sale, after (a) provision
for all income or other taxes measured by or resulting from such Asset Sale,
(b) transfer taxes, (c) payment of all brokerage commissions, underwriting and
other fees and expenses (including attorneys’ fees, investment banking fees and
accounting fees) related to such


 


3

















 


Asset Sale, (d) provision for
minority interest holders in any Subsidiary as a result of such Asset Sale, (e)
payments made to retire Indebtedness secured by the assets subject to such
Asset Sale, and (f) payments made to the Trustee, the Collateral Agent and the
Administrative Agent under the Collateral Agreement, and (g) deduction of
appropriate amounts to be provided by either of the Issuers or a Subsidiary
thereof as a reserve, in accordance with GAAP, against any liabilities
associated with the assets sold or disposed of in such Asset Sale and retained
by either of the Issuers or a Subsidiary thereof after such Asset Sale,
including, without limitation, pension and other post-employment benefit
liabilities and liabilities related to environmental matters or against any
indemnification obligations associated with the assets sold or disposed of in
such Asset Sale, and (ii) promissory notes and other non-cash consideration
received by either of the Issuers or any Subsidiary thereof from such Asset
Sale or other disposition upon the liquidation or conversion of such notes or
non-cash consideration into cash.


 


“Attributable Indebtedness” when used with
respect to any Sale and Lease-Back Transaction means, as at the time of
determination, the present value (discounted at a rate equivalent to the
interest rate implicit in the lease, compounded on a semi-annual basis) of the
total obligations of the lessee for rental payments (after excluding all
amounts required to be paid on account of maintenance and repairs, insurance,
taxes, utilities and other similar expenses payable by the lessee pursuant to the
terms of the lease) during the remaining term of the lease included in any such
Sale and Lease-Back Transaction or until the earliest date on which the lessee
may terminate such lease without penalty or upon payment of a penalty (in which
case the rental payments shall include such penalty); provided, that the
Attributable Indebtedness with respect to a Sale and Lease-Back Transaction
shall be no less than the fair market value (as determined reasonably and in
good faith by the Board of Directors of the Person incurring the Attributable
Indebtedness) of the property subject to such Sale and Lease-Back Transaction.


 


“Bankruptcy Court” means, in the case of
Telecom, the Issuers and their wholly-owned debtor domestic Subsidiaries, the
United States Bankruptcy Court for the District of Delaware, in which the Cases
were filed.


 


“Bankruptcy Law” means Title 11, U.S. Code or
any similar Federal or state law for the relief of debtors as in effect from
time to time.


 


“Board of Directors” means, as to any Person,
the board of directors or, if such Person is a partnership (or other
non-corporate Person), of the managing general partner or partners (or Persons
serving an analogous function) of such Person.


 


“Board Resolution” means, as to any Person, a
copy of a resolution certified pursuant to an Officers’ Certificate to have
been duly adopted by the Board of Directors of such Person, and to be in full
force and effect, and, if required hereunder, delivered to the Trustee.


 


“Brownwood Lease” means that certain Lease
Agreement, dated as of December 16, 1993, as amended, between Superior Essex
Communications LLC (f/k/a Superior Telecommunications Inc.) and ST (TX) LP.


 


“Capital Stock” means any and all shares,
interests, participations or other equivalents (however designated) of capital
stock of a corporation, any and all equivalent ownership interests


 


4

















 


in a Person (other than a
corporation), including, without limitation, partnership interests and
membership interests, and any and all warrants, rights or options to purchase
or other arrangements or rights to acquire any of the foregoing.


 


“Capitalized Lease Obligation” means
Indebtedness represented by obligations under a lease that is required to be
capitalized for financial reporting purposes in accordance with GAAP, and the
amount of such Indebtedness shall be the capitalized amount of such obligations
determined in accordance with GAAP.


 


“Cases” means, collectively, the cases under
chapter 11 of the United States Bankruptcy Code commenced by the Issuers
and all of their domestic Subsidiaries, and by Telecom and all of its domestic
Wholly-Owned Subsidiaries, in the Bankruptcy Court on March 3, 2003.


 


“Cash” means money, currency or a credit
balance in any demand or Deposit Account.


 


“Casualty” with respect to any Collateral,
means loss of, damage to or destruction of all or any part of such Collateral.


 


“Change of Control” means the occurrence of
one or more of the following events after the Issue Date: (i) any sale, lease,
exchange or other transfer (in one transaction or a series of related
transactions) of all or substantially all of the assets of either of the
Issuers to any Person or group of related Persons for purposes of Section 13(d)
of the Exchange Act (a “Group”), together with any Affiliates of such Person or
group of related Persons (which may include any Initial Holders) thereof
(whether or not otherwise in compliance with the provisions of this Indenture);
(ii) the approval by the holders of Capital Stock of either of the Issuers of
any plan or proposal for the liquidation or dissolution of either of the
Issuers (whether or not otherwise in compliance with the provisions of this
Indenture); (iii) any Initial Equity Holder becomes the owner, directly or
indirectly, beneficially or of record, of shares representing more than (A) 50%
of the aggregate ordinary voting power represented by the issued and
outstanding Capital Stock of Primary Intermediate Holdco, Secondary
Intermediate Holdco or Holdings or (B) 50% of the aggregate ordinary voting
power represented by the issued and outstanding voting stock of either of the
Issuers; (iv) any other Person or Group shall become the owner, directly or
indirectly, beneficially or of record, of shares representing more than (A) 35%
of the aggregate ordinary voting power represented by the issued and
outstanding Capital Stock of Primary Intermediate Holdco, Secondary
Intermediate Holdco or Holdings or (B) 35% of the aggregate ordinary voting
power represented by the issued and outstanding voting stock of either of the
Issuers (other than Primary Intermediate Holdco, Secondary Intermediate Holdco
or Holdings); or (v) the first day within any two-year period on which a
majority of the members of the Board of Directors of either of the Issuers,
Primary Intermediate Holdco, Secondary Intermediate Holdco or Holdings are not
Continuing Directors of such respective entities.


 


“Co-Issuer” means the party named as such in
the first paragraph of this Indenture until a successor replaces such party
pursuant to Article 5 of this Indenture and thereafter means the successor.


 


5

















 


“Collateral” means, collectively, all the
real, personal and mixed property (including Capital Stock) in which Liens are
purported to be granted pursuant to the Collateral Documents as security for
the Senior Note Obligations.


 


“Collateral Agent” means The Bank of New
York, in its capacity as collateral agent under the Collateral Documents, and
its successors in such capacity.


 


“Collateral Agreement” means that Collateral
Agreement entered into by the Issuers, the Guarantors and the Collateral Agent
on November 10, 2003.


 


“Collateral Documents” means the Collateral
Agreement, the Mortgages, the Intercreditor Agreement and all other
instruments, documents and agreements delivered by the Issuers or any Guarantor
pursuant to the Credit Agreement, this Indenture or the other Senior Note
Documents in order to grant to the Collateral Agent, for the benefit of
Holders, a Lien on any real, personal or mixed property of the Issuers or a
Guarantor, as applicable, as security for the Senior Note Obligations.


 


“Common Stock Registration Rights Agreement”
means the agreement dated as of the date hereof entered into by and among
Superior Essex Inc. and the Persons that are signatories thereto.


 


“Company” means the party named as such in
the first paragraph of this Indenture until a successor replaces such party
pursuant to Article 5 of this Indenture and thereafter means the successor.


 


“Condemnation” means any taking of the
Collateral or any part thereof, in or by condemnation, expropriation or similar
proceeding, eminent domain proceedings, seizure or forfeiture, pursuant to any
law, general or special, or by reason of the temporary requisition of the use
or occupancy of the Collateral, or any part thereof, by a governmental
authority.


 


“Condemnation Proceeds” means any awards,
proceeds, payment or other compensation arising out of a Condemnation less any
and all (i) payments made to the Trustee, the Collateral Agent and the
Administrative Agent under the Collateral Documents and the Collateral
Agreement and (ii) fees and expenses incurred in obtaining such Condemnation
Proceeds (including attorneys’ fees).


 


“Consolidated Cash Flow Available for Fixed
Charges” means, with respect to any Person for any period, on a consolidated
basis in accordance with GAAP, the sum of, without duplication, the amounts for
such period, taken as a single accounting period, of (A) the sum of (i)
Consolidated Net Income, (ii) Consolidated Non-Cash Charges, (iii) Consolidated
Interest Expense, (iv) Consolidated Income Tax Expense, (v) (for any period
ending on or prior to December 31, 2003 only) to the extent deducted in
determining Consolidated Net Income, any non-recurring charge or restructuring
charge in connection with the implementation of the Plan of Reorganization
(including, without limitation, (1) all fees and expenses incurred in
connection with the execution, delivery and performance of the Credit Agreement;
(2) payments made to Rothschild Inc. in its capacity as financial advisor to
Telecom and its Subsidiaries; and (3) all other reorganization and
restructuring costs and expenses incurred prior to the Plan Effective Date
solely in connection with the calculation contemplated by the proviso in this
definition);


 


6

















 


(vi) (for any period ending on
or prior to April 1, 2004) fees and expenses (including any signing bonus and
the fees and expenses of any executive search firm) in respect of the retention
of a Chief Executive Officer of Holdings and the selection of the members of
the Board of Holdings and (vii) (for any period ending on or prior to the date
as of which Holdings ceases to have obligations (1) to register common stock
under Sections 2, 3 and 4 of each of the Common Stock Registration Rights
Agreement and (2) to register the Notes under Sections 2, 3 and 4 of the Notes
Registration Rights Agreement) fees and expenses (including SEC filing fees, NASDAQ
or other exchange or market listing fees and related professional fees)
incurred in connection with the initial filing on Form 10 of Holdings and the
other filings required to be made by Holdings or its Subsidiaries pursuant to
the Common Stock Registration Rights Agreement and the Notes Registration
Rights Agreement less (B) any non-Cash items increasing Consolidated Net Income
for such period (excluding any such non-Cash item to the extent it represents
the reversal of an accrual or reserve for potential Cash item in any prior
period); provided, however, that for the purposes of this
definition, (i) with respect to the First Interest Payment Date, Consolidated
Cash Flow Available for Fixed Charges shall be calculated as of the six month
period ending on the last day of the most recently completed calendar month
which is 30 days prior to the First Interest Payment Date and (ii) with respect
to the Second Interest Payment Date, Consolidated Cash Flow Available for Fixed
Charges shall be calculated as of the 12 month period ending on the last day of
the most recently completed calendar month which is 30 days prior to the Second
Interest Payment Date.


 


“Consolidated Fixed Charge Coverage Ratio”
means with respect to any Person, the ratio of the aggregate amount of
Consolidated Cash Flow Available for Fixed Charges of such Person for the four
full fiscal quarters immediately preceding the date of the transaction (the
“Transaction Date”) giving rise to the need to calculate the Consolidated Fixed
Charge Coverage Ratio (such four full fiscal quarter period being referred to
herein as the “Four Quarter Period”) to the aggregate amount of Consolidated
Fixed Charges of such Person for the Four Quarter Period. In addition to and
without limitation of the foregoing, for purposes of this definition,
“Consolidated Cash Flow Available for Fixed Charges” and “Consolidated Fixed
Charges” shall be calculated after giving effect on a pro forma basis for the
period of such calculation to, without duplication, (a) the incurrence of any
Indebtedness of such Person or any of its Subsidiaries (and the application of
the net proceeds thereof) during the period commencing on the first day of the
Four Quarter Period to and including the Transaction Date (the “Reference
Period”), including, without limitation, the incurrence of the Indebtedness
giving rise to the need to make such calculation (and the application of the
net proceeds thereof), as if such incurrence (and application) occurred on the
first day of the Four Quarter Period (it being understood that with respect to
Indebtedness incurred under a revolving facility used primarily to finance
working capital, the average daily principal amount outstanding during the
Reference Period shall be deemed to be the amount incurred during the Reference
Period), (b) any Asset Sales or Asset Acquisitions (including, without
limitation, any Asset Acquisition giving rise to the need to make such
calculation as a result of such Person or one of its Subsidiaries (including
any Person who becomes a Subsidiary as a result of the Asset Acquisition)
incurring, assuming or otherwise being liable for Acquired Indebtedness)
occurring during the Four Quarter Period, as if such Asset Sale or Asset
Acquisition occurred on the first day of the Four Quarter Period and (c) the
Net Income as of the first day of the Four Quarter Period of any Person whose
Indebtedness is included in the computation of “Consolidated Fixed Charges”
notwithstanding that such Person was acquired by either of the Issuers or any
of their Subsidiaries after the first day of such


 


7

















 


Four Fiscal Quarter
Period.  Furthermore, in calculating
“Consolidated Fixed Charges” for purposes of determining the denominator (but
not the numerator) of this “Consolidated Fixed Charge Coverage Ratio,” (i)
interest on outstanding Indebtedness determined on a fluctuating basis as of
the Transaction Date and which will continue to be so determined thereafter
shall be deemed to have accrued at a fixed rate per annum equal to the rate of
interest on such Indebtedness in effect on the Transaction Date; and (ii) if
interest on Indebtedness actually incurred on the Transaction Date 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 rates, then the interest
rate in effect on the Transaction Date will be deemed to have been in effect
during the Four Quarter Period. In calculating the Consolidated Fixed Charge
Coverage Ratio and giving pro forma effect to the incurrence of Indebtedness
during a Reference Period, pro forma effect shall be given to use of proceeds
thereof to permanently repay or retire Indebtedness. If such Person or any of
its Subsidiaries directly or indirectly guarantees Indebtedness of a third
Person, for purposes of determining the “Consolidated Fixed Charge Coverage
Ratio,” effect shall be given to the incurrence of such guaranteed Indebtedness
as if such Person or such Subsidiary had directly incurred or otherwise assumed
such guaranteed Indebtedness.


 


“Consolidated Fixed Charges” means, with
respect to any Person for any period, the sum of, without duplication, the
amounts for such period of (i) Consolidated Interest Expense, and (ii) the
product of (a) the aggregate amount of dividends and other distributions paid
in cash during such period in respect of Disqualified Equity Interests of such
Person and its Subsidiaries on a consolidated basis and (b) a fraction, the
numerator of which is one and the denominator of which is one minus the then
current combined federal, state and local statutory income tax rate of such
Person, expressed as a decimal.


 


“Consolidated Income Tax Expense” means, with
respect to any Person for any period, the provision for federal, state, local
and foreign income taxes of such Person and its Subsidiaries for each period as
determined on a consolidated basis in accordance with GAAP.


 


“Consolidated Interest Expense” means, with
respect to any Person, on a consolidated basis in accordance with GAAP, for any
period, the sum of, without duplication, (a) the aggregate amount of interest
which, in conformity with GAAP, would be set forth opposite the caption
“interest expense” or any like caption on an income statement for such Person
and its Subsidiaries on a consolidated basis, (b) imputed interest included in
Capitalized Lease Obligations, (c) all commissions, discounts and other fees
and charges owed with respect to letters of credit and bankers’ acceptance
financing, (d) the net costs associated with Interest Rate Agreements, (e)
amortization of other financing fees and expenses, (f) the interest portion of
any deferred payment obligation, (g) amortization of discount or premium, if
any, (h) all other non-cash interest expense (other than interest amortized to
cost of sales), (i) the interest component of Capitalized Lease Obligations
paid, accrued and/or scheduled to be paid or accrued by such Person and its
Subsidiaries during such period as determined on a consolidated basis in
accordance with GAAP and (j) all interest incurred or paid under any guarantee
of Indebtedness (including a guarantee of principal, interest or any
combination thereof) of any Person.


 


“Consolidated Net Income” means, with respect
to any Person, for any period, the aggregate of the Net Income of such Person
and its Subsidiaries for such period, on a consolidated basis, determined in
accordance with GAAP, plus the amount of any dividends or


 


8

















 


distributions received by such
Person from Unrestricted Subsidiaries; provided,  however, that
(a) the Net Income of any Person (the “other Person”) in which the Person in
question or any of its Subsidiaries has less than a 100% interest (which
interest does not cause the net income of such other Person to be consolidated
into the net income of the Person in question in accordance with GAAP) shall be
included only to the extent of the amount of dividends or distributions that in
accordance with applicable law could be paid to the Person in question or its
Subsidiaries, (b) the Net Income of any Subsidiary of the Person in question
that is incorporated in a jurisdiction other than the United States, or a state
or territory thereof, shall be included only to the extent of the amount of
dividends or distributions paid to the Person in question or its Subsidiaries,
(c) the Net Income of any Subsidiary of the Person in question that is subject
to any restriction or limitation (whether by terms of its charter, agreement
(other than this Indenture) or applicable law) on the payment of dividends or
the making of other distributions shall be excluded to the extent such
restriction or limitation would prevent such Subsidiary from being able to pay
dividends or make other distributions out of its Net Income, (d) any net gain
or loss resulting from an Asset Sale by the Person in question or any of its
Subsidiaries other than in the ordinary course of business shall be excluded,
(e) extraordinary gains and losses (including any related tax effects) shall be
excluded and (f) the cumulative effect of changes in accounting principles
shall be excluded.


 


“Consolidated Net Worth” means, with respect
to any Person at any date, the consolidated stockholders’ equity of such Person
less the amount of such stockholders’ equity attributable to Disqualified
Equity Interests of such Person and its Subsidiaries, as determined in
accordance with GAAP.


 


“Consolidated Non-Cash Charges” means, with
respect to any Person for any period, the aggregate depreciation, amortization
and other non-cash expenses of such Person and its Subsidiaries reducing
Consolidated Net Income of such Person and its Subsidiaries for such period,
determined on a consolidated basis in accordance with GAAP (excluding any such
charges constituting an extraordinary item or loss or any such charge which
required an accrual of or a reserve for cash charges for any future period).


 


“Consolidated Total Assets” of any Person
means the consolidated total assets of such Person and its consolidated Subsidiaries,
as set forth on the most recent consolidated balance sheet of such Person and
its consolidated Subsidiaries determined in accordance with GAAP.


 


“Continuing Directors” means, as of any date
of determination, any member of the Board of Directors of Holdings who (i) was
a member of such Board of Directors on the Effective Date or (ii) was nominated
for election or elected to such Board of Directors with, or whose election to
such Board of Directors was approved by, the affirmative vote of a majority of
the Directors who were members of such Board of Directors at the time of such
nomination or election.


 


“Corporate Trust Office” means the principal
office of the Trustee at which at any time its corporate trust business shall
be administered, which office at the date hereof is located at 101 Barclay
Street, Floor 8W, New York, NY 10286, or such other address as the Trustee may
designate from time to time by notice to the Holders and the Issuers, or the
principal corporate trust office of any successor Trustee (or such other
address as such successor Trustee may designate from time to time by notice to
the Holders and the Issuers).


 


9

















 


“Credit Agreement” means that certain Credit
Agreement dated as of November 10, 2003 (as amended, modified, or otherwise
party from time to time), among the Issuers, the financial institutions from
time to time party thereto, and Fleet Capital Corporation, as the
Administrative Agent, and General Electric Capital Corporation, as Syndication
Agent.


 


“Credit Facility” means  (i) the Credit Agreement; (ii) any and all
agreements, instruments and documents executed or delivered pursuant to or in
connection with such Credit Agreement; and (iii) any and all credit agreements,
loan agreements, note purchase agreements, indentures or other agreements,
documents or instruments refinancing, refunding or otherwise replacing, in
whole or in part, the Credit Agreement or any other agreement deemed a Credit
Facility under clause (ii) hereof, whether or not with the same agent, trustee,
representative, lenders or holders, regardless of whether the Credit Facility
or any portion thereof was outstanding or in effect at the time of such
restatement, renewal, extension, restructuring, supplement or modification.  Without limiting the generality of the
foregoing, the term “Credit Facility” shall include any amendment, restatement,
renewal, extension, restructuring, supplement or modification to any Credit
Facility and all refundings, refinancing and replacements of any Credit
Facility, in whole or in part, including any agreement (w) extending the
maturity of any Indebtedness incurred thereunder or contemplated thereby, (x)
adding or deleting borrowers or guarantors thereunder, provided that the
addition of such borrower or guarantor would not be prohibited by this
Indenture, (y) increasing the amount for Indebtedness incurred thereunder or
available to be borrowed thereunder, provided such increase is permitted to be
incurred under this Indenture or (z) otherwise altering the terms and
conditions thereof in a manner not prohibited by this Indenture.


 


“Currency Agreement” means in respect of a
Person any foreign exchange contract, currency swap agreement or other similar
agreement designed to protect such Person against fluctuations in currency
values and not for the purpose of speculation.


 


“Custodian” means any receiver, trustee,
assignee, liquidator or similar official under any Bankruptcy Law.


 


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


 


“Deposit Account”  means a demand, time, savings, passbook or like account with
a bank, savings and loan association, credit union or like organization, other
than an account evidenced by a negotiable certificate of deposit.


 


“Depository” means, with respect to the
Senior Notes issued in the form of one or more Global Notes, The Depository
Trust Company or another Person designated as Depository by the Issuers, which
Person must be a clearing agency registered under the Exchange Act.


 


“Designated Noncash Consideration” means the
fair market value of noncash consideration received by the Issuers or one of
their Subsidiaries in connection with an Asset Sale, including the cancellation
of any Indebtedness, that is so designated as Designated Noncash Consideration
pursuant to an Officers’ Certificate, setting forth the basis of such
valuation, or, in


 


10

















 


the case of the cancellation of
any Indebtedness, the principal amount of such cancelled Indebtedness, executed
by an Officer of each of the Issuers.


 


“Disqualified Equity Interests” means any
Equity Interest of either of the Issuers or any of their Subsidiaries which, by
its terms (or by the terms of any security into which it is convertible or for
which it is exchangeable at the option of the holder), or upon the happening of
any event, matures or is subject to mandatory redemption, pursuant to a sinking
fund obligation or otherwise, or is redeemable at the option of the holder
thereof, in whole or in part, on or prior to the Maturity Date of the Senior
Notes, for cash or securities constituting Indebtedness. Without limitation of
the foregoing, Disqualified Equity Interests shall also be deemed to include
any Preferred Equity Interests of either of the Issuers or a Subsidiary of
either of the Issuers with respect to which, under the terms of such Preferred
Equity Interests, by agreement or otherwise, either of the Issuers or such
Subsidiary is obligated to pay current dividends or distributions in cash
during the period prior to the Maturity Date.


 


“Domestic Subsidiary” means any Subsidiary
that is organized under the laws of the United States of America, or any state
thereof or the District of Columbia.


 


“Effective Date” means the date specified as
such in the first paragraph of this Indenture.


 


“Equity Interests” means, with respect to any
Person, any and all shares or other equivalents (however designated) of capital
stock, partnership interests or any other participation, right or other
interests in the nature of an equity interest in such Person or any option,
warrant or other security convertible into or exchangeable for any of the
foregoing.


 


“Exchange Act” means the Securities and
Exchange Act of 1934, as amended.


 


“Fair market value” or “fair value” means,
with respect to any assets or property, the price which could be negotiated in
an arm’s-length free market transaction, for cash, between a willing seller and
a fully informed, willing and able buyer, neither of whom is under undue
pressure or compulsion to complete the transaction, all as reasonably
determined by a majority of the Board of Directors acting in good faith, such
determination to be evidenced by a Board Resolution delivered to the Trustee.


 


“Final Decree” means, with respect to the
Issuers and the Guarantors which on the Issue Date are the subject of the
Cases, an order entered in the Cases by the Bankruptcy Court closing the Cases.


 


“First Interest Payment Date” means the first
Interest Payment Date after the Issue Date.


 


“Fiscal Quarter” means a fiscal quarter of
any Fiscal Year.


 


“Fiscal Year”  means the fiscal year of each of the Issuers and their
respective Subsidiaries which initially shall end on December 31 of each
calendar year.


 


“GAAP” means generally accepted accounting
principles consistently applied as in effect in the United States from time to
time.


 


11

















 


“Global Note” means a Senior Note evidencing
all or a part of the Senior Notes issued to and registered in the name of the
Depository and bearing the Global Note Legend prescribed in Exhibit B.


 


“Global Note Legend” means the legend set
forth in Exhibit B, which is required to be placed on all Global Notes issued
under this Indenture.


 


“Guarantee” means, as the context may
require, individually, a guarantee, or collectively, any and all guarantees, of
the Obligations of the Issuers with respect to the Senior Notes by each
Guarantor pursuant to the terms of Article 11 hereof.


 


“Guarantor”
means Holdings, Primary Intermediate Holdco, Secondary Intermediate Holdco and
each of the Domestic Subsidiaries of Holdings that guarantees any of the
Issuers’ obligations hereunder and shall also include any other Subsidiary that
subsequently guarantees the Senior Notes pursuant to Section 4.13.


 


“Holder” or “Noteholder” means the Person in
whose name a Senior Note is registered on the Registrar’s books.


 


“incur” means, with respect to any
Indebtedness or other obligation of any Person, to create, issue, incur (by
conversion, exchange or otherwise), assume, guarantee or otherwise become,
directly or indirectly, liable in respect of such Indebtedness or other
obligation or the recording, as required pursuant to GAAP or otherwise, of any
such Indebtedness or other obligation on the balance sheet of such Person (and
“incurrence,” “incurred,” “incurable,” and “incurring” shall have meanings
correlative to the foregoing). Any Indebtedness or Equity Interests of a Person
existing at the time such Person becomes a Subsidiary (whether by merger,
consolidation, acquisition or otherwise) shall be deemed to be incurred by such
Person at the time it becomes a Subsidiary. Indebtedness consisting of
reimbursement obligations in respect of a letter of credit will be deemed to be
incurred when the letter of credit is issued or renewed.


 


“Indebtedness” means (without duplication),
with respect to any Person, (i) any indebtedness at any time outstanding,
secured or unsecured, contingent or otherwise, which is for borrowed money
(whether or not the recourse of the lender is to the whole of the assets of
such Person or only to a portion thereof), or evidenced by bonds, notes,
debentures or similar instruments or representing the balance deferred and
unpaid of the purchase price of any property (excluding, without limitation,
any balances that constitute accounts payable or trade payables) if and to the
extent any of the foregoing indebtedness would appear as a liability on a
balance sheet of such Person prepared in accordance with GAAP, (ii) any
Capitalized Lease Obligations, (iii) obligations secured by a Lien to which the
property or assets owned or held by such Person is subject, whether or not the
obligation or obligations secured thereby shall have been assumed, (iv) all
Indebtedness of others of the type described in the other clauses of this
definition (including all dividends of other Persons) the payment of which is
guaranteed, directly or indirectly, by such Person or that is otherwise its
legal liability or which such Person has agreed to purchase or repurchase or in
respect of which such Person has agreed contingently to supply or advance funds
(whether or not such items would appear upon the balance sheet of the
guarantor), (v) all obligations for the reimbursement of any obligor on any
letter of credit, banker’s acceptance or similar credit transaction, (vi)
Disqualified Equity Interests, (vii)


 


12

















 


obligations of any such Person
under any Interest Rate Agreement applicable to any of the foregoing and (viii)
Attributable Indebtedness. The amount of Indebtedness of any Person at any date
shall be the outstanding balance at such date of all unconditional obligations
as described above and, with respect to contingent obligations, the maximum
liability upon the occurrence of the contingency giving rise to the obligation;
provided, however, that (i) the amount outstanding at any time of
any Indebtedness issued with original issue discount is the principal amount of
such Indebtedness less the remaining unamortized portion of the original issue
discount of such Indebtedness at such time as determined in conformity with
GAAP and (ii) Indebtedness shall not include any liability for federal, state,
local or other taxes. Notwithstanding any other provision of the foregoing
definition, any trade payable or account payable arising from the purchase of
goods or materials or for services obtained in the ordinary course of business
shall not be deemed to be “Indebtedness” of the Issuers or any of their
Subsidiaries for purposes of this definition. Furthermore, guarantees of, or
obligations with respect to letters of credit supporting, Indebtedness
otherwise included in the determination of such amount shall not also be
included.


 


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


 


“Initial Equity Holders” means the beneficial
owners of the common stock of Holdings on the Effective Date.


 


“Initial Holders” means the Persons set forth
in Exhibit D hereto.


 


“Insurance Proceeds” means any payment,
proceeds or other amounts received at any time under any insurance policy as
compensation in respect of a Casualty, provided that business
interruption insurance proceeds shall not constitute Insurance Proceeds.


 


“Intercreditor Agreement” means that certain
Intercreditor Agreement dated as of the date hereof by and among the Collateral
Agent, Fleet Capital Corporation as the Administrative Agent under the Credit
Facility and their respective successors, and consented to by the Issuers and
the Guarantors, as amended, amended and restated, supplemented, replaced or
otherwise modified from time to time.


 


“interest,” when used with respect to any
Senior Note, means the amount of all interest accruing on such Senior Note,
including all interest accruing subsequent to the occurrence of any events
specified in Sections 6.1(7) and (8) hereof or which would have accrued but for
any such event.


 


“Interest Payment Date” means each May 10 and
November 10 of each year, commencing May 10, 2004.


 


“Interest Rate Agreement” means, for any
Person, any interest rate swap agreement, interest rate cap agreement, interest
rate collar agreement or other similar agreement designed to protect the party
indicated therein against fluctuations in interest rates.


 


“Investment” means, with respect to any
Person, directly or indirectly, (i) any advance, account receivable (other
than an account receivable arising in the ordinary course of business,


 


13

















 


including accounts receivable
arising in the ordinary course of business and acquired as part of the assets
acquired by either of the Issuers or any of their Subsidiaries in connection
with an acquisition of assets which is otherwise permitted by the terms of this
Indenture), loan or capital contribution to any other Person (by means of
transfers of property to others, payments for property or services for the
account or use of others or otherwise), (ii) the purchase of any stock,
bonds, notes, debentures, partnership or joint venture interests or other
securities of any other Person, (iii) the acquisition, by purchase or
otherwise, of all or substantially all of the business or stock or other
evidence of beneficial ownership of, any other Person, (iv) the guarantee or
assumption of the Indebtedness of any other Person (except for an assumption of
Indebtedness for which the assuming Person receives consideration with a fair
market value at least equal to the principal amount of the Indebtedness assumed),
(v) the designation of a Subsidiary as an Unrestricted Subsidiary and
(vi) all other items that would be classified as investments on a balance
sheet of such Person prepared in accordance with GAAP. Investments shall
exclude extensions of trade credit in accordance with normal trade practices.


 


“Issue Date” means the date on which the
Senior Notes are issued, as indicated on the Senior Notes.


 


“Issuers’ Request” means any written request
signed in the name of each of the Issuers by any two of the following: the
Chief Executive Officer; the President; any Vice President; the Chief Financial
Officer of each of the Issuers, respectively; the Treasurer; or the Secretary
or any Assistant Secretary (but not both the Secretary and any Assistant
Secretary) of each of the Issuers, respectively.


 


“Lien” means, with respect to any property or
assets of any Person, any mortgage or deed of trust, pledge, hypothecation,
assignment, deposit arrangement, security interest, lien, charge, easement,
encumbrance, preference, priority, or other security agreement or preferential
arrangement of any kind or nature whatsoever on or with respect to such
property or assets (including, without limitation, any Capitalized Lease
Obligation, conditional sales, or other title retention agreement having
substantially the same economic effect as any of the foregoing).


 


“Loss Event” means a Condemnation or Casualty
involving an actual or constructive total loss or agreed or compromised actual
or constructive total loss of all or substantially all of any Property
constituting Collateral, except where the respective Issuer holding title to
such Property reasonably concludes that Restoration of such Property can be
made in accordance with this Indenture and elects to do so in an Officers’ Certificate
delivered to the Trustee within 180 days of the relevant Condemnation or
Casualty.


 


“Maturity Date” means November 10, 2008.


 


“Moody’s” means Moody’s Investors Service,
Inc. and its successors.


 


“Mortgages” means any Mortgage, security
agreement, assignment of rents and leases and fixture filing, open end
mortgage, deed of trust, indemnity deed of trust or similar or equivalent
instrument secured by real property, trust deed, deed to secure debt, credit
line, deed of trust or assignment of rents, purporting to grant a security
interest in favor of the Collateral


 


14

















 


Agent in any of the Collateral,
as such document may be amended, supplemented or otherwise modified from time
to time.


 


“Net Income” means, with respect to any
Person for any period, the net income (loss) of such Person determined in
accordance with GAAP.


 


“Net Investments” means the excess of (i) the
aggregate of all Investments made by either of the Issuers or any of their
Subsidiaries on or after the Issue Date (in the case of an Investment made
other than in cash, the amount shall be the fair market value of such
Investment) over (ii) the sum of (A) the aggregate amount returned in cash on
such Investments whether through interest payments, principal payments,
dividends or other distributions, (B) the net cash proceeds received by either
of the Issuers or their respective Subsidiaries from the disposition of all or
any portion of such Investments (other than to a Subsidiary of either of the
Issuers) and (C) the fair market value of any Unrestricted Subsidiary that is
redesignated by either of the Issuers as a Subsidiary, as determined in good
faith by the Board of Directors of the respective Issuer; provided, however,
that with respect to all Investments made in Unrestricted Subsidiaries, the sum
of clauses (A), (B) and (C) above with respect to such Investments shall not
exceed the aggregate amount of all Investments made in all Unrestricted
Subsidiaries.


 


“Net Proceeds” means (a) in the case of any
sale of Equity Interests by either of the Issuers, the aggregate net proceeds
received by such Issuer, whether such proceeds are in cash or in property
(valued at the fair market value thereof at the time of receipt), and (b) in
the case of any exchange, exercise, conversion or surrender of outstanding
securities of any kind (other than Equity Interests of either of the Issuers  which are not Disqualified Equity
Interests) for or into Equity Interests of either of the Issuers which are not
Disqualified Equity Interests, the net book value of such outstanding
securities on the date of such exchange, exercise, conversion or surrender plus
any additional amount required to be paid by the holder to the respective
Issuer upon such exchange, exercise, conversion or surrender (e.g., on account
of fractional shares and less all expenses incurred by either of the Issuers in
connection therewith).


 


“Notes Registration Rights Agreement” means
the agreement dated as of the date hereof entered into by and among the
Issuers,  the Guarantors and the
Initial Holders.


 


“Obligations” means, with respect to any
Indebtedness, any principal, premium, interest, penalties, fees,
indemnifications, reimbursements, damages and other expenses payable under the
documentation governing such Indebtedness.


 


“Officer” means, with respect to any Person,
the Chief Executive Officer, the President, any Vice President, the Chief
Financial Officer, the Chief Accounting Officer or the Treasurer of such
Person, the Controller, the Secretary or any Assistant Secretary of such Person
or a Guarantor, or any other officer designated by the Board of Directors of
such Person, as the case may be (or, in the case of a Person that is a
partnership (or other noncorporate Person), a general partner (or analogous
individuals) of such Person in such capacity).


 


“Officers’ Certificate” means, with respect
to any Person, a certificate signed by the Chief Executive Officer, the
President or any Vice President and the Chief Financial Officer, the Chief
Accounting Officer or any Treasurer of such Person (or, in the case of a Person
that is a


 


15

















 


partnership (or other
non-corporate Person), by a general partner (or analogous individuals) of such
Person in such capacity that shall comply with applicable provisions of this
Indenture.


 


“Opinion of Counsel” means a written opinion
from legal counsel who may be an employee or counsel to the Issuers.


 


“Permitted Investments” means, for any
Person, Investments made on or after the date of this Indenture consisting of:


 


(i) Temporary Cash Investments;


 


(ii) Investments in either of the Issuers or a Subsidiary of either of
the Issuers;


 


(iii) Investments in any Person, if (A) as a result of such Investment
(1) such Person becomes a Wholly-Owned Subsidiary of either of the Issuers or
(2) such Person is merged, consolidated or amalgamated with or into, or
transfers or conveys substantially all of its assets to, or is liquidated into,
either of the Issuers or a Wholly-Owned Subsidiary thereof and (B) after giving
effect to such Investment the Issuers are in compliance with Sections 4.17 and
5.1 hereof;


 


(iv) Investments represented by accounts receivable created or acquired
in the ordinary course of business;


 


(v) Loans and advances to employees of either of the Issuers and their
Subsidiaries in the ordinary course of business and consistent with the past
practice of the Issuers and their respective Subsidiaries (including, without
limitation, for travel, entertainment and relocation expenses or in connection
with stock purchases and other incentive compensation programs), which loans
and advances, in the aggregate, do not exceed $500,000 at any time outstanding,
provided that the Issuers and their Subsidiaries may make additional
loans to executives solely to cover relocation costs in an amount not to exceed
in the aggregate $500,000 at any time;


 


(vi) Investments under or pursuant to Interest Rate Agreements and
Currency Agreements;


 


(vii) An investment that is made by either of the Issuers or a
Subsidiary thereof in the form of any Equity Interests, Indebtedness or
securities that are issued by any Person solely as partial consideration for
the consummation of an Asset Sale that is otherwise permitted under Section
4.10 hereof;


 


(viii) Investments in the Senior Notes;


 


(ix) Investments existing on the Issue Date;


 


(x) Investments provided for in the Plan of Reorganization;


 


16

















 


(xi) Investments in (i) any Securities received in satisfaction or
partial satisfaction thereof from financially troubled account debtors
consistent with the past practices of the Issuers and their Subsidiaries and
(ii) deposits, prepayments and other credits to suppliers and landlords made in
the ordinary course of business consistent with the past practices of the
Issuers and their Subsidiaries;


 


(xii) guarantees of Indebtedness of the Issuers or any of their
Subsidiaries issued in accordance with Section 4.7;


 


(xiii) Investments in any Person by either of the Issuers or their
Subsidiaries in connection with the development, construction and operation of
a joint venture which will produce magnet wire in China for sale in China and
abroad; provided, however, that the total aggregate Investment
will not exceed $15 million at any time outstanding;


 


(xiv) Investments under or pursuant to Section 9.4; and


 


(xv) Net Investments in any Person; provided, however,
that the aggregate amount of all such Net Investments made pursuant to this
clause (xv) shall not exceed $6 million at any one time outstanding.


 


“Permitted Liens” means, without duplication,


 


(i) Liens securing Senior Indebtedness permitted to be incurred under
clause (i) of the second paragraph of Section 4.7,


 


(ii) Liens existing on the Issue Date,


 


(iii) Liens in favor of either of the Issuers or any Subsidiary
thereof, provided that if such Liens are on any Collateral as defined in
the Collateral Agreement, that such Liens are either collaterally assigned to
the Collateral Agent or the Trustee or subordinated to the Lien in favor of the
Collateral Agent securing the Senior Notes,


 


(iv) Liens on property of a Person existing at the time such Person
becomes a Subsidiary of, or is acquired by, merged into or consolidated with
either of the Issuers or any Subsidiary thereof, or such property is otherwise
acquired by either of the Issuers or a Subsidiary thereof; provided, however,
that such Liens (a) were not created in connection with or in anticipation of
such acquisition, merger or consolidation or such Person becoming a Subsidiary
and (b) are not applicable to any other property of either of the Issuers or
any of the other Subsidiaries of the Issuers,


 


(v) Liens for taxes, assessments, governmental charges, levies or
claims that are not yet delinquent or that are being contested in good faith by
appropriate proceedings promptly instituted and diligently conducted; provided,
however, that any reserve or other appropriate provision as shall be
required in conformity with GAAP shall have been made therefor,


 


17

















 


(vi) landlords’, carriers’, warehousemen’s, mechanics’, materialmen’s,
repairmen’s or other like Liens arising in the ordinary course of business and
with respect to amounts which are not yet delinquent or are being contested in
good faith by appropriate proceedings,


 


(vii) Liens incurred or deposits made in the ordinary course of
business (a) to secure the performance of tenders, bids, leases, contracts
(other than for the repayment of Indebtedness), statutory obligations and other
similar obligations, or arising as a result of progress payments under
government contracts, (b) in connection with workers’ compensation,
unemployment insurance and other social security legislation, or (c) to secure
the performance of surety bonds, and appeal bonds required in connection with
judgments that are not paid by an unaffiliated insurance carrier pursuant to
any insurance policy maintained by the Issuers,


 


(viii) easements, rights-of-way, restrictions, encroachments and other
minor defects or irregularities in title, in each case that do not and will not
interfere in any material respect with the ordinary conduct of the business of
the Issuers or any of their Subsidiaries,


 


(ix) Liens to secure Purchase Money Indebtedness that is otherwise
permitted under this Indenture; provided, however, that (a) any
such Lien is solely for the purpose of securing Indebtedness representing, or
incurred to finance, refinance or refund, the cost (including sales and excise
taxes, installation and delivery charges and other direct costs of, and other
direct expenses paid or charged in connection with, such a purchase or
construction) of such Property, (b) the principal amount of the Indebtedness
secured by such Lien does not exceed 100% of such costs, (c) the principal
amount of all Purchase Money Indebtedness secured by such Liens does not exceed
$7.5 million at any time, (d) such Lien does not extend to or cover any
Property other than such item or items of Property and any improvements on such
item(s) and (e) such Lien is granted within 180 days of the incurrence of such
Purchase Money Indebtedness,


 


(x) Liens securing Capitalized Lease Obligations permitted to be
incurred under clause (v) of the second paragraph of Section 4.7 hereof; provided,
however, that such Lien does not extend to any property other than that
subject to the underlying lease,


 


(xi) Liens pursuant to leases and subleases of real property which do
not interfere with the ordinary conduct of the business of the Issuers or any
of their Subsidiaries and which are made on customary and usual terms
applicable to similar properties,


 


(xii) Liens securing reimbursement obligations under commercial letters
of credit, but only in or upon the goods the purchase of which were financed by
such letters of credit,


 


18

















 


(xiii) Liens securing Acquisition Indebtedness, provided that
such Liens do not extend to or cover any property other than the property
directly or indirectly acquired with the proceeds of such Acquisition
Indebtedness and any improvements thereto (unless such Liens are otherwise
Permitted Liens),


 


(xiv) Liens securing Refinancing Indebtedness; provided, however,
that such Liens extend only to the assets securing the Indebtedness being
extended, refinanced, renewed or replaced, and such Indebtedness was previously
secured by such asset and provided, further, the terms of such
Liens are no less favorable to the holders of the Senior Notes than the Liens
being extended, refinanced, renewed or replaced,


 


(xv) Liens in favor of the Collateral Agent for the benefit of the
holders of the Senior Notes,


 


(xvi) any Lien provided for in the Plan of Reorganization or as part of
any settlement or restructuring entered into prior to the Issue Date and
approved by the Bankruptcy Court,


 


(xvii) Liens solely on any cash earnest money deposits made by the
Issuers or any of their Subsidiaries in connection with any letter of intent or
purchase agreement permitted hereunder,


 


(xviii) purported Liens evidenced by the filing of precautionary UCC
financing statements relating solely to operating leases of personal property
entered into in the ordinary course of business,


 


(xix) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of customs duties in connection with the
importation of goods,


 


(xx) any zoning or similar law or right reserved to or vested in any
governmental office or agency to control or regulate the use of any real
property,


 


(xxi) licenses of patents, trademarks and other intellectual property
rights granted by the Issuers or any of their Subsidiaries in the ordinary
course of business and not interfering in any material respect with the
ordinary conduct of the business of the Issuers or such Subsidiaries,


 


(xxii) Liens arising out of attachments, judgments or awards as to
which an appeal or other appropriate proceedings for contest or review are
timely commenced (and as to which foreclosure and other enforcement proceedings
shall not have been commenced, unless fully bonded or otherwise effectively
stayed) and as to which appropriate reserves have been established in
accordance with GAAP,


 


19

















 


(xxiii) other Liens on assets of the Issuers or their Subsidiaries
securing Indebtedness having an aggregate principal amount at any one time
outstanding not to exceed $5 million, and


 


(xxiv) any deposit or trust established pursuant to Section 9.4.


 


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


 


“Plan Disclosure Statement” means that
certain Disclosure Statement Pursuant to Section 1125 of the Bankruptcy Code
for the Debtors’ Joint Plan or Reorganization Under Chapter 11 of the
Bankruptcy Code, as approved by the Bankruptcy Court for use by the Issuers in
soliciting votes on the Plan of Reorganization, including all schedules and
exhibits thereto and all documents incorporated by reference therein or
contained in the documentary supplement thereto.


 


“Plan of Reorganization” means the Debtors’
Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code, as
confirmed by an order of the United States Bankruptcy Court for the District of
Delaware, dated October 22, 2003, including all schedules and exhibits thereto
and all documents incorporated by reference therein or contained in the
documentary supplement thereto.


 


“Plan of Reorganization Preferred Stock”
means the $5 million of preferred stock of Primary Intermediate Holdco issued
pursuant to the Plan of Reorganization.


 


“Preferred Equity Interest” means any Equity
Interest of either of the Issuers or any of their Subsidiaries, however
designated, which entitles the holder thereof to a preference with respect to
dividends, distributions or liquidation proceeds of such Person over the
holders of any other Equity Interest issued by such Person.


 


“principal” of a debt security means the
principal amount of the security plus, when appropriate, the premium, if any,
on the security.


 


“Proceeding” means a liquidation,
dissolution, bankruptcy, insolvency reorganization, receivership or similar
proceeding under Bankruptcy Law, an assignment for the benefit of creditors,
any marshalling of assets or liabilities or winding up or dissolution, but
shall not include any transaction permitted by and made in compliance with
Article 5 hereof.


 


“Property” or “property” of any Person means
all types of real, personal, tangible, intangible or mixed property owned by
such Person whether or not included in the most recent consolidated balance
sheet of such Person and its Subsidiaries under GAAP.


 


“Purchase Money Indebtedness” means any
Indebtedness incurred in the ordinary course of business by a Person to finance
the cost (including the cost of construction) of an item of Property, the
principal amount of which Indebtedness does not exceed the sum of (i) 100% of
such cost and (ii) reasonable fees and expenses of such Person incurred in
connection therewith.


 


20

















 


“Redemption Date” when used with respect to
any Senior Note to be redeemed means the date fixed for such redemption pursuant
to this Indenture.


 


“Refinancing Indebtedness” means Indebtedness
that refunds, refinances, renews, replaces or extends any Indebtedness of
either of the Issuers or their Subsidiaries outstanding on the Issue Date
(other than Indebtedness incurred under the Credit Facility) or other
Indebtedness permitted to be incurred by the Issuers or any Guarantor pursuant
to the first paragraph of Section 4.7, whether involving the same or any other
lender or creditor or group of lenders or creditors, but only to the extent
that (i) the Refinancing Indebtedness is subordinated to the Senior Notes to at
least the same extent as the Indebtedness being refunded, refinanced or
extended, if at all, (ii) the Refinancing Indebtedness is scheduled to mature
either (a) no earlier than the Indebtedness being refunded, refinanced or
extended, or (b) after the maturity date of the Senior Notes, (iii) such
Refinancing Indebtedness has a weighted average life to maturity at the time
such Refinancing Indebtedness is incurred that is equal to or greater than the
weighted average life to maturity of the Indebtedness being refunded,
refinanced or extended, (iv) such Refinancing Indebtedness is in an aggregate
principal amount that is less than or equal to the aggregate principal amount
then outstanding under the Indebtedness being refunded, refinanced or extended,
plus reasonable transaction costs and expenses incurred by the Issuers and
their Subsidiaries in connection with consummating such Refinancing
Indebtedness and (v) such Refinancing Indebtedness is incurred by the same
Person that initially incurred the Indebtedness being refunded, refinanced or
extended, except that either of the Issuers may incur Refinancing Indebtedness
to refund, refinance or extend Indebtedness of any of its Wholly-Owned
Subsidiary or any Person that, contemporaneously with such refunding,
refinancing or extension of Indebtedness, will become a Wholly-Owned Subsidiary
of either of the Issuers.


 


“Refinancing Notes” means debt securities
issued to redeem the Senior Notes.


 


“Responsible Officer” shall mean, when used
with respect to the Trustee, any officer within the corporate trust department
of the Trustee, including any vice president, assistant vice president,
assistant treasurer, trust officer or any other officer of the Trustee who
customarily performs functions similar to those performed by the Persons who at
the time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of such person’s knowledge of and familiarity with
the particular subject and who shall have direct responsibility for the
administration of this Indenture.


 


“Restoration” means the restoration of all or
any portion of the Collateral in connection with any destruction or
Condemnation thereof.


 


“Restricted Payment” means any of the
following: (i) the declaration or payment of any dividend or any other
distribution or payment on Equity Interests of either of the Issuers or any
Subsidiary thereof or any payment made to the direct or indirect holders (in
their capacities as such) of Equity Interests of either of the Issuers or any
Subsidiary thereof (other than (a) in the case of Subsidiaries of either of the
Issuers, dividends or distributions payable to either of the Issuers or to a
Wholly-Owned Subsidiary of either of the Issuers, or (b) dividends or
distributions payable solely in the Equity Interests of Primary Intermediate
Holdco, Secondary Intermediate Holdco or Holdings) (other than Disqualified
Equity Interests) and any payments of dividends with respect to the Plan of
Reorganization Preferred Stock in an amount not to exceed $2.375


 


21

















 


million in the aggregate as
long as any of the Senior Notes are outstanding, (ii) the purchase, redemption
or other acquisition or retirement for value of any Equity Interest of either
of the Issuers or any Subsidiary thereof (other than Equity Interests owned by
either of the Issuers or a Wholly-Owned Subsidiary, excluding Disqualified
Equity Interests), (iii) the making of any principal payment on, or the
purchase, defeasance, repurchase, redemption or other acquisition or retirement
for value, prior to any scheduled maturity, scheduled repayment or scheduled
sinking fund payment, of any Subordinated Indebtedness (other than Subordinated
Indebtedness acquired in anticipation of satisfying a scheduled sinking fund
obligation, principal installment or final maturity, in each case within one
year of the date of such acquisition), or (iv) the making of any Investment or
guarantee of any Investment in any Person other than a Permitted Investment.
For purposes of determining the amount expended for Restricted Payments, cash
distributed or invested shall be valued at the face amount thereof and property
other than cash shall be valued at its fair market value.


 


“S&P” means Standard & Poor’s Ratings
Group and its successors.


 


“Sale and Lease-Back Transaction” means any
arrangement with any Person providing for the leasing by either of the Issuers
or any Subsidiary of either of the Issuers of any real or tangible personal
Property, which Property (i) has been or is to be sold, conveyed or transferred
by either of the Issuers or such Subsidiary to such Person in contemplation of
such leasing and (ii) would constitute an Asset Sale if such Property had been
sold in an outright sale thereof.


 


“SEC” or “Commission” means the United States
Securities and Exchange Commission as constituted from time to time or any
successor performing substantially the same functions.


 


“Second Interest Payment Date” means the
second Interest Payment Date after the Issue Date.


 


“Securities”means any stock, shares, partnership interests, membership
interests, voting trust certificates, certificates of interest or participation
in any profit-sharing agreement or arrangement, options, warrants, bonds,
debentures, notes, or other evidences of indebtedness, secured or unsecured,
convertible, subordinated or otherwise, or in general any instruments commonly
known as “securities” or any certificates of interest, shares or participations
in temporary or interim certificates for the purchase or acquisition of, or any
right to subscribe to, purchase or acquire, any of the foregoing.


 


“Securities Act” means the Securities Act of
1933, as amended.


 


“Senior Indebtedness” means the following
obligations, whether outstanding on the Issue Date or thereafter incurred: all
Indebtedness and other monetary obligations of Holdings, Primary Intermediate
Holdco, Secondary Intermediate Holdco, the Issuers or any Subsidiary of the
Issuers under or in respect of the Credit Facility (including obligations in
respect of any lease financing facility of the Credit Facility) or, for so long
as the Credit Facility is outstanding, any Interest Rate Agreement or Currency
Agreement related to Indebtedness under the Credit Facility, whether for
principal, interest (including interest accruing after the filing of a petition
by or against either of the Issuers or any Subsidiary of either of the Issuers
under any state or federal


 


22

















 


Bankruptcy Laws, whether or not
such interest is allowed as a claim after such filing in any proceeding under
such law), fees, expenses, indemnification or otherwise


 


“Senior Note Documents” means this Indenture,
the Senior Notes, the Guarantees, the Collateral Documents and all other
documents and instruments entered into in connection with this Indenture.


 


“Senior Note Obligations” shall mean all
obligations of any nature of any Guarantor or of the Issuers from time to time
owed to the Trustee, Collateral Agent or to any Holder under any Senior Note,
this Indenture or any other Senior Note Document, whether for principal,
premium, if any, interest (including interest which, but for the filing of a
petition in bankruptcy with respect to either of the Issuers or any Guarantor
(as the case may be), would have accrued on any Senior Note Obligation, whether
or not a claim is allowed against the Issuers or any Guarantor (as the case may
be) for such interest in the related bankruptcy proceeding), fees, expenses,
indemnification or otherwise.


 


“Senior Notes” means collectively the Second
Priority Secured Notes due 2008, being the securities that are issued under
this Indenture, as amended or supplemented from time to time pursuant to this
Indenture and including, without limitation, any Secondary Senior Notes and
notes issued in accordance with Section 2.2 hereof.


 


“Subordinated Indebtedness” means
Indebtedness of any Person which is expressly subordinated in right of payment to
any other Indebtedness of such Person.


 


“Subsidiary” of any specified Person means
any corporation, partnership, limited liability company, joint venture,
association or other business entity, whether now existing or hereafter
organized or acquired, (i) in the case of a corporation, of which more than 50%
of the total voting power of the Equity Interests entitled (without regard to
the occurrence of any contingency) to vote in the election of directors,
officers or trustees thereof is held by such first-named Person or any of its
Subsidiaries; or (ii) in the case of a partnership, limited liability company,
joint venture, association or other business entity, with respect to which such
first-named Person or any of its Subsidiaries has the power to direct or cause
the direction of the management and policies of such entity by contract or
otherwise or if in accordance with GAAP such entity is consolidated with the
first-named Person for financial statement purposes. Notwithstanding the
foregoing, an Unrestricted Subsidiary shall not be deemed a Subsidiary of
either of the Issuers other than for purposes of the definition of Unrestricted
Subsidiary, unless the respective Issuer shall have designated such
Unrestricted Subsidiary as a “Subsidiary” by written notice to the Trustee.


 


“TIA” means the Trust Indenture Act of 1939
(15 U.S. Code Sections 77aaa-77bbbb) as in effect on the date of this Indenture
(except as provided in Section 8.3 hereof).


 


“Temporary Cash Investments” means, as at any
date of determination, (i) marketable securities (a) issued or directly and
unconditionally guaranteed as to interest and principal by the United States
Government or (b) issued by any agency of the United States the obligations of
which are backed by the full faith and credit of the United States, in each
case maturing within one year after such date; (ii) marketable direct
obligations issued by any state of the United


 


23

















 


States of America or any
political subdivision of any such state or any public instrumentality thereof,
in each case maturing within one year after such date and having, at the time
of the acquisition thereof, a rating of at least A-1 from S&P or at least
P-1 from Moody’s; (iii) commercial paper maturing no more than one year from
the date of creation thereof and having, at the time of the acquisition
thereof, a rating of at least A-1 from S&P or at least P-1 from Moody’s;
(iv) certificates of deposit or bankers’ acceptances maturing within one year
after such date and issued or accepted by any lender under the Credit Agreement
or by any commercial bank organized under the laws of the United States of
America or any state thereof or the District of Columbia that (a) is at least
“adequately capitalized” (as defined in the regulations of its primary Federal
banking regulator) and (b) has Tier 1 capital (as defined in such regulations)
of not less than $100,000,000; and (v) shares of any money market mutual fund
that (a) has substantially all of its assets invested continuously in the types
of investments referred to in clauses (i) and (ii) above, (b) has net assets of
not less than $500,000,000, and (c) has the highest rating obtainable from
either S&P or Moody’s.


 


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


 


“Unrestricted Subsidiary” means (i) any of
the entities listed on Schedule 1.1E, (ii) any Subsidiary of an Unrestricted
Subsidiary and (iv) any Subsidiary of either of the Issuers which shall have
been designated after the Issue Date as an Unrestricted Subsidiary by a
resolution adopted by the Board of Directors of the Issuer which is the direct
parent of such Wholly-Owned Subsidiary; provided that a Subsidiary may
be so classified as an Unrestricted Subsidiary only if such classification is
in compliance with Section 4.14 hereof and an Unrestricted Subsidiary may be
designated as a Subsidiary only if such classification is in compliance with
the definition of “Subsidiary” contained in this Section 1.1. The Trustee shall
be given prompt written notice by the Issuer which is the direct parent of such
Wholly-Owned Subsidiary of each resolution adopted by the Board of Directors of
the Issuer which is the direct parent of such Wholly-Owned Subsidiary under
this provision, together with a copy of each such resolution adopted.


 


“U.S. Government Obligations” means (i)
securities that are direct obligations of the United States of America for the
payment of which its full faith and credit are pledged or (ii) obligations of a
Person controlled or supervised by and acting as an agency or instrumentality
of the United States of America, the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America, which, in either 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 Obligation or a specific payment of
principal of or interest on any such U.S. Government Obligation 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
Obligation or a specific payment of principal or interest on any such U.S.
Government Obligation held by such custodian for the account of the holder of
such depository receipt.


 


24

















 


“Wholly-Owned Subsidiary” means any
Subsidiary all of the outstanding Equity Interests (other than directors’
qualifying shares) of which are owned, directly or indirectly, by either of the
Issuers.


 


SECTION 1.2.                     Other
Definitions.  The definitions of the
following terms may be found in the Sections indicated as follows: 


 




	
  Term

  	
   

  	
  Defined in

  Section

  
	
   

  	
   

  	
   

  
	
  “Affiliate
  Transaction”

  	
   

  	
  4.11

  
	
  “Agent
  Members”

  	
   

  	
  2.15

  
	
  “Business
  Day”

  	
   

  	
  12.8

  
	
  “Change of
  Control Date”

  	
   

  	
  4.6

  
	
  “Change of
  Control Offer”

  	
   

  	
  4.6

  
	
  “Change of
  Control Payment Date”

  	
   

  	
  4.6

  
	
  “Change of
  Control Redemption Period”

  	
   

  	
  4.6

  
	
  “Collateral
  Proceeds Amount”

  	
   

  	
  4.10

  
	
  “Collateral
  Proceeds Offer”

  	
   

  	
  4.10

  
	
  “Covenant
  Defeasance”

  	
   

  	
  9.3

  
	
  “Event of
  Default”

  	
   

  	
  6.1

  
	
  “Legal
  Defeasance”

  	
   

  	
  9.2

  
	
  “Legal
  Holiday”

  	
   

  	
  12.8

  
	
  “Paying
  Agent”

  	
   

  	
  2.3

  
	
  “Physical
  Notes”

  	
   

  	
  2.1

  
	
  “Registrar”

  	
   

  	
  2.3

  
	
  “Required
  Filing Date”

  	
   

  	
  4.2

  
	
  “Secondary
  Senior Notes”

  	
   

  	
  2.2

  
	
  “transfer”

  	
   

  	
  5.1

  






 


SECTION 1.3.                     Incorporation
by Reference of Trust Indenture Act. 
Whenever this Indenture refers to a provision of the TIA, the portion of
such provision required to be incorporated herein in order for this Indenture
to be qualified under the TIA is incorporated by reference in and made a part
of this Indenture. The following TIA terms used in this Indenture have the
following meanings:


 


“indenture securities” means the Senior
Notes.


 


“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 Issuers, the Guarantors or any other obligor on the Senior Notes.


 


25

















 


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


 


SECTION 1.4.                     Rules of
Construction.  Unless the context
otherwise requires:


 


(1) a term has the meaning assigned to it
herein, whether defined expressly or by reference;


 


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


 


(3) “or” is not exclusive;


 


(4) words in the singular include the plural,
and in the plural include the singular;


 


(5) words used herein implying any gender
shall apply to every gender;


 


(6) “herein,” “hereof’ and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or Subdivision, unless expressly stated otherwise; and


 


(7) provisions apply to successive events and
transactions.


 


ARTICLE 2


 


The Senior
Notes


 


SECTION 2.1.                     Dating;
Incorporation of Form in Indenture. 
The Senior Notes and the Trustee’s certificate of authentication shall
be substantially in the form of Exhibit A which is incorporated in and made
part of this Indenture. The Senior Notes shall have notations, legends or
endorsements required by law, stock exchange rule, usage, or agreements to
which each of the Issuers or any Guarantor is subject. The Issuers shall use
“CUSIP” numbers in issuing the Senior Notes. Each Senior Note shall be dated
the date of its authentication.


 


One or more permanent Global Notes issued and
delivered hereunder may be in registered form, substantially in the form set
forth in Exhibit A, having the legend set forth in Exhibit B, may be issued to
the Depository, to the extent such Depository is the Registered Holder of the
applicable Senior Notes. Otherwise, Senior Notes hereunder may be issued in the
form of certificated Senior Notes in registered form in substantially the form
set forth in Exhibit A (the “Physical Notes”), without the legend set forth in
Exhibit B.


 


The terms and provisions contained in the
Senior Notes and the Guarantees shall constitute, and are hereby expressly
made, a part of this Indenture and the Issuers, the Guarantors and the Trustee,
by their execution and delivery of this Indenture, expressly agree to such
terms and provisions and to be bound thereby.


 


26

















 


SECTION 2.2.                     Execution
and Authentication.  The Senior
Notes shall be executed on behalf of the Issuers by two Officers of each of the
respective Issuers or an Officer and an Assistant Secretary of each of the
Issuers. Such signatures may be either manual or facsimile. If an Officer whose
signature is on a Senior Note no longer holds that office at the time the
Trustee authenticates the Senior Note or at any time thereafter, the Senior
Note shall be valid nevertheless.


 


A Senior Note shall not be valid until the
Trustee manually signs the certificate of authentication on the Senior Note.
Such signature shall be conclusive evidence that the Senior Note has been
authenticated under this Indenture.


 


The Trustee or an authenticating agent shall
authenticate Senior Notes for original issue in the aggregate principal amount
of up to $145,000,000, subject to adjustment pursuant to Section 8.1(7). The aggregate
principal amount of Senior Notes, excluding Secondary Senior Notes, outstanding
at any time may not exceed such amount except as provided in Section 2.7. The
Senior Notes shall be issuable only in registered form without coupons and only
in denominations of whole dollar integrals. The Trustee shall issue Senior
Notes upon the Issuers’ Request.


 


In the event the Issuers elect to pay a
portion of interest as specified in the terms of the Senior Notes in additional
Senior Notes, the Issuers shall pay a portion of such interest in Secondary
Senior Notes in lieu of cash as provided in paragraph 1 of the Senior Notes
(such Senior Notes, “Secondary Senior Notes”). 
The Issuers shall give written notice to the Trustee of the amount of
interest to be paid in Secondary Senior Notes not less than five Business Days
prior to the relevant Interest Payment Date, and the Trustee or an
authenticating agent (upon written order of the Issuers signed by an Officer of
each of the Issuers given not less than five nor more than 45 days prior to
such Interest Payment Date) shall authenticate for original issue (pro  rata
to each Holder of any Senior Notes as of such record date) Secondary Senior
Notes in an aggregate principal amount equal to the amount of interest payable with
such Secondary Senior Notes on such Interest Payment Date.  Each issuance of Secondary Senior Notes in
lieu of the payment of a portion of interest in cash on the Senior Notes shall
be made pro  rata with respect to the outstanding Senior Notes,
and the Issuers shall have the right to aggregate amounts of interest payable
in the form of Secondary Senior Notes to a Holder of outstanding Senior Notes
and issue to such Holder a single Secondary Senior Note in payment thereof.  Any Secondary Senior Notes may be
denominated as a separate series if the Issuers deem it necessary to do so,
with appropriate distinguishing designations. 
As set forth in paragraph 1 of the Senior Notes, in the event the
Issuers elect to pay a portion of interest in Secondary Senior Notes, the
Issuers shall also pay to each Holder, on a pro rata basis, an additional
amount, payable in cash on the date(s) specified in paragraph 1 of the Senior
Notes in an amount equal to 0.25% of the aggregate amount of Senior Notes
outstanding as of the applicable record date for such Interest Payment (such
amounts, “Additional Amounts”).


 


The Trustee may appoint an authenticating
agent acceptable to the Issuers to authenticate Senior Notes. Unless limited by
the terms of such appointment, an authenticating agent may authenticate Senior
Notes whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. Such
authenticating agent shall have the same right as the Trustee in dealing with
the Issuers or an Affiliate.


 


27

















 


SECTION 2.3.                     Agents.  Each of the Issuers shall maintain an office
or agency in the Borough of Manhattan, City of New York, State of New York
where Senior Notes may be presented for registration of transfer or for
exchange (“Registrar”) and where Senior Notes may be presented for payment
(“Paying Agent”) and where notices and demands to or upon the Issuers in
respect of the Senior Notes and this Indenture may be served. The Registrar
shall keep a register of the Senior Notes and of their transfer and exchange.
The Issuers may appoint one or more co-Registrars and one or more additional
Paying Agents. The Issuers may change any Paying Agent, Registrar or
co-Registrar without notice to any Noteholder. 
Neither the Issuers nor any of their Subsidiaries or Affiliates may act
as Paying Agent but may act as Registrar or co-Registrar.


 


The Issuers shall enter into an appropriate
agency agreement with any Registrar or Paying Agent which is not a party to
this Indenture. The agreement shall implement the provisions of this Indenture
that relate to such Agent. The Issuers shall notify the Trustee of the name and
address of any such Agent. If the Issuers fail to maintain a Registrar or
Paying Agent, or agent for service of notices and demands, or fail to give the
foregoing notice, the Trustee shall act as such and shall be entitled to
appropriate compensation pursuant to Section 7.7. The Issuers initially appoint
the Trustee as Registrar, Paying Agent and agent for service of notices and
demands in connection with the Senior Notes.


 


SECTION 2.4.                     Paying
Agent to Hold Money in Trust.  On or
before each due date of the principal of, premium if any, interest or
Additional Amounts, if any, on any Senior Notes, the Issuers shall deposit with
the Paying Agent a sum sufficient to pay such principal, premium if any, or
interest so becoming due. Each Paying Agent shall hold in trust for the benefit
of Noteholders or the Trustee all money held by the Paying Agent for the
payment of principal of or interest or Additional Amounts, if any, on the
Senior Notes (whether such money has been paid to it by the Issuers or any
other obligor on the Senior Notes), and the Issuers and the Paying Agent shall notify
the Trustee of any default by either of the Issuers or any Guarantor (or any
other obligor on the Senior Notes) in making any such payment. Money held in
trust by the Paying Agent need not be segregated except as required by law and
in no event shall the Paying Agent be liable for any interest on any money
received by it hereunder. The Issuers at any time may require a Paying Agent to
pay all money held by it to the Trustee, and the Trustee may at any time during
the continuance of any Event of Default specified in Section 6.1(1) or (2),
upon written request to a Paying Agent, require such Paying Agent to forthwith
pay to the Trustee all sums so held in trust by such Paying Agent together with
a complete accounting of such sums. Upon doing so, the Paying Agent shall have
no further liability for the money delivered to the Trustee.


 


SECTION 2.5.                     Noteholder
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 Noteholders.  The Trustee shall provide Noteholders with
access to such list in accordance with TIA Section 312. If the Trustee is not
the Registrar, the Issuers shall furnish to the Trustee on or prior to the tenth
Business Day before each Interest Payment Date, and at such other times as the
Trustee may reasonably 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
Noteholders, including the aggregate principal amount of Senior Notes held by
each such Noteholder.


 


28

















 


SECTION 2.6.                     Transfer
and Exchange.  (a)   Subject to Section 2.16, when a Senior Note
is presented to the Registrar with a request to register the transfer thereof,
the Registrar shall register the transfer as requested if the requirements of
applicable law and of this Indenture are met and, when Senior Notes are
presented to the Registrar with a request to exchange them for an equal
principal amount of Senior Notes of other authorized denominations, the
Registrar shall make the exchange as requested, provided that every
Senior Note presented or surrendered for registration of transfer or exchange
shall be duly endorsed or be accompanied by a written instrument of transfer in
form satisfactory to the Issuers and the Registrar duly executed by the Holder
thereof or his attorney, duly authorized in writing.  To permit registration of transfers and exchanges, upon surrender
of any Senior Note for registration of transfer at the office or agency
maintained pursuant to Section 2.3 hereof, the Issuers shall issue and execute
and the Trustee shall authenticate Senior Notes at the Registrar’s
request.  Any exchange or transfer shall
be without any service charge to the Noteholder, except that the Issuers may
require payment by the Noteholder of a sum sufficient to cover any tax or the
governmental charge that may be imposed in relation to a transfer or exchange.
The Trustee shall not be required to register transfers of Senior Notes or to
exchange Senior Notes for a period of 15 days before selection of any Senior
Notes to be redeemed. The Trustee shall not be required to exchange or register
transfers of any Senior Notes called or being called for redemption in whole or
in part, except the unredeemed portion of any Senior Note being redeemed in
part.  All Senior Notes issued upon any
transfer or exchange pursuant to the terms of this Indenture will evidence the
same debt and will be entitled to the same benefits under this Indenture as the
Senior Notes surrendered upon such transfer or exchange.


 


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


 


(c)  Except as
expressly provided herein, neither the Trustee nor the Registrar shall have any
duty to monitor the Issuers’ compliance with or have any responsibility with
respect to the Issuers’ compliance with any federal or state securities laws.


 


SECTION 2.7.                     Replacement
Senior Notes.  If a mutilated Senior
Note is surrendered to the Registrar or Trustee or if the Holder of a Senior
Note presents evidence to the satisfaction of the Issuers and the Trustee that
the Senior Note has been lost, destroyed or wrongfully taken and of the
ownership thereof, the Issuers shall issue and the Trustee shall authenticate a
replacement Senior Note if the Holder of such Senior Note furnishes to the
Issuers and the Trustee evidence reasonably acceptable to them of the ownership
and destruction, loss or theft of such Senior Note or if the reasonable
requirements of the Trustee and of Section 8-405 of the Uniform Commercial Code
as in effect in the State of Delaware are met. An indemnity bond may be
required by the Issuers or the Trustee that is sufficient in the judgment of
the Issuers and the Trustee to protect the Issuers, the Trustee or any Agent
from any loss which any of them may suffer if a Senior Note is replaced. The
Issuers or the Trustee each may charge for its expenses (including reasonable
attorneys’ fees and expenses) in replacing a Senior Note.


 


Every replacement Senior Note is an
additional obligation of the Issuers.


 


29

















 


SECTION 2.8.                     Outstanding
Senior Notes.  Senior Notes
outstanding at any time are all Senior Notes authenticated by the Trustee
except for those cancelled by it, those delivered to it for cancellation, and
those described in this Section 2.8 as not outstanding.


 


If a Senior Note is replaced pursuant to
Section 2.7, such Senior Note that has been replaced will cease to be
outstanding until the Issuers and the Trustee receive proof satisfactory to
each of them that the replaced Senior Note is held by a bona fide purchaser in
whose hands such obligation is a legal, valid and binding obligation of the
Issuers.


 


If a Paying Agent holds on a Redemption Date
or Maturity Date money sufficient to pay the principal of, premium, if any, and
all accrued interest with respect to Senior Notes payable on that date and is
not prohibited from paying such money to the Holders thereof pursuant to the
terms of this Indenture, then on and after that date such Senior Notes shall
cease to be outstanding and interest on them shall cease to accrue.


 


Subject to Section 12.6, a Senior Note does
not cease to be outstanding solely because the Issuers or an Affiliate holds
the Senior Note.


 


SECTION 2.9.                     Temporary
Senior Notes.  Until definitive
Senior Notes are ready for delivery, the Issuers may prepare and the Trustee
shall authenticate temporary Senior Notes. Temporary Senior Notes shall be substantially
in the form, and shall carry all rights, benefits and privileges, of definitive
Senior Notes but may have variations that the Issuers consider appropriate for
temporary Senior Notes. Without unreasonable delay, the Issuers shall prepare
and the Trustee shall authenticate definitive Senior Notes in exchange for
temporary Senior Notes presented to it.


 


SECTION 2.10.               Cancellation.  The Issuers at any time may deliver Senior
Notes to the Trustee for cancellation. The Registrar and the Paying Agent shall
forward to the Trustee any Senior Notes surrendered to them for transfer,
exchange or payment. The Trustee shall cancel and retain or may dispose of
(subject to the record-retention requirements of the Exchange Act), in
accordance with its normal practice, all Senior Notes surrendered for transfer,
exchange, payment or cancellation. Subject to Section 2.7, the Issuers may not
issue new Senior Notes to replace Senior Notes in respect of which they have
previously paid all principal, premium and interest accrued thereon, or
delivered to the Trustee for cancellation.


 


SECTION 2.11.               Defaulted
Interest.  If the Issuers default in
a payment of any interest on the Senior Notes, the Issuers shall pay the
defaulted amounts in cash, plus (to the extent permitted by law) any interest
payable on defaulted amounts pursuant to Section 4.1, to the persons who are
Noteholders on a subsequent special record date.


 


The Issuers shall fix the special record date
and payment date for payment of such defaulted amounts in a manner satisfactory
to the Trustee and provide the Trustee at least 20 days notice of the proposed
amount of defaulted interest to be paid and the special payment date. At least
15 days before the special record date, the Issuers shall mail or cause to be mailed
to each Noteholder at his address as it appears on the Senior Notes register
maintained by the Registrar a notice that states the special record date, the
payment date (which shall be not less than five nor more than ten days after
the special record date), and the amount to be paid. In lieu


 


30

















 


of the foregoing procedures,
the Issuers may pay defaulted interest in any other lawful manner satisfactory
to the Trustee.


 


SECTION 2.12.               Deposit of Moneys.
 Prior to 10:00 a.m., New York City
time, as required, on (i) each Interest Payment Date and (ii) the Maturity
Date, the Issuers shall have deposited with the Paying Agent in immediately
available funds money sufficient to make cash payments, if any, due on such
Interest Payment Date or Maturity Date, as the case may be, in a timely manner
which permits the Trustee to remit payment to the Holders at such times. The
principal and interest on Global Notes shall be payable to the Depository or
its nominee, as the case may be, as the sole registered owner and the sole
holder of the Global Notes represented thereby. The principal and interest on
Physical Notes shall be payable at the office of the Paying Agent.


 


SECTION 2.13.               CUSIP Number.  The Issuers in issuing the Senior Notes may
use a “CUSIP” number (or numbers), and if so, the Trustee may use the CUSIP
number(s) in notices of redemption or exchange as a convenience to Holders, provided
that any such notice may state that no representation is made as to the correctness
or accuracy of the CUSIP number(s) printed in the notice or on the Senior
Notes, and that reliance may be placed only on the other identification numbers
printed on the Senior Notes. The Issuers will promptly notify in writing the
Trustee of any such CUSIP number used by the Issuers in connection with the
Senior Notes and any change in such CUSIP number.


 


SECTION 2.14.               Payments to
Holders.  Notwithstanding any
provisions of this Indenture and the Senior Notes to the contrary:


 


(a)  Except for any
payments to be made on a Redemption Date or the Maturity Date, payments with
respect to any of the Senior Notes may be made by the Paying Agent upon receipt
from the Issuers of immediately available funds, by check mailed to the Holder,
at the address shown in the registrar of the Senior Notes maintained by the
Registrar pursuant to Section 2.3; or


 


(b)  At the request
of a Holder of at least $5 million in aggregate principal amount of Senior
Notes outstanding, all payments with respect to any of the Senior Notes may be
made by the Paying Agent upon receipt from the Issuers of immediately available
funds prior to 10:00 a.m., New York City time, directly to the Holder of such
Senior Note (whether by federal funds, wire transfer or otherwise); provided,
however, that no such federal funds, wire transfer or other such direct
payment shall be made to any Holder under this Section 2.14(b) unless such
Holder has delivered written instructions to the Trustee prior to the relevant
record date for such payment requesting that such payment will be so made and
designating the bank account to which such payments shall be so made and, in
the case of payments of principal, surrenders the Senior Note to the Trustee in
exchange for a Senior Note or Senior Notes aggregating the same principal
amount as the unredeemed principal amount of the Senior Notes surrendered. The
Trustee shall be entitled to rely on the last instruction delivered by the
Holder pursuant to this Section 2.14(b) unless a new instruction is delivered
prior to the relevant record date for a payment date. The Issuers will
indemnify and hold the Trustee harmless against any loss, liability or expense
(including reasonable attorneys’ fees and expenses) resulting from any act or
omission to act on the part of the Issuers or any such Holder in connection
with any such


 


31

















 


agreement or which the Paying
Agent may incur as a result of making any payment in accordance with any such
agreement, except for any such loss, liability or expense arising as a result
of the gross negligence or willful misconduct of the Trustee or the Paying
Agent, as the case may be.


 


All payments made on a Redemption Date are
subject to Section 2.8 and Article 3 hereof. No later than fifteen (15) days
prior to the Maturity Date, the Trustee shall notify the Holder, at the address
shown in the registrar of the Senior Notes maintained by the Registrar pursuant
to Section 2.3 hereof, that the Issuers expect that the final installment of
principal of and interest on the Senior Notes will be paid on the Maturity
Date. Such notice shall specify that such final installment will be payable
only upon presentation and surrender of such Senior Note and shall specify the
place where such Senior Notes may be presented and surrendered for payment of
such installment. Additionally, in accordance with Section 2.8, such Senior
Notes shall cease to be outstanding.


 


SECTION 2.15.               Book-Entry
Provisions for Global Notes


 


(a)  The Global Notes
initially shall (i) be registered in the name of the Depository or the nominee
of such Depository, (ii) be delivered to the Trustee as custodian for such
Depository and (iii) bear legends as set forth in Exhibit B.


 


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


 


(b)  Transfers of
Global Notes shall be limited to transfer in whole, but not in part, to the
Depository, its successors or their respective nominees. Interests of
beneficial owners in the Global Notes may be transferred or exchanged for
Physical Notes in accordance with the rules and procedures of the Depository.
In addition, Physical Notes shall be transferred to all beneficial owners in
exchange for their beneficial interests in Global Notes if (i) the Depository
notifies the Issuers that it is unwilling or unable to continue as Depository
for any Global Note and a successor depositary is not appointed by the Issuers
within 90 days of such notice or (ii) an Event of Default has occurred and is
continuing and the Registrar has received a written request from the Depository
to issue Physical Notes.


 


(c)  In connection
with any transfer or exchange of a portion of the beneficial interest in any
Global Note to beneficial owners pursuant to paragraph (b), the Registrar shall
(if one or more Physical Notes are to be issued) reflect on its books and
records the date and a decrease in the principal amount of the Global Note in
an amount equal to the principal amount of the beneficial interest in the
Global Note to be transferred, and the Issuers shall execute, and


 


32

















 


the Trustee shall upon receipt
of a written order from the Issuers authenticate and make available for
delivery, one or more Physical Notes of like tenor and amount.


 


(d)  In connection
with the transfer of Global Notes as an entirety to beneficial owners pursuant
to paragraph (b), the Global Notes shall be deemed to be surrendered to the
Trustee for cancellation, and the Issuers shall execute, and the Trustee shall
authenticate and deliver, to each beneficial owner identified by the Depository
in writing in exchange for its beneficial interest in the Global Notes, an
equal aggregate principal amount of Physical Notes of authorized denominations.


 


(e)  The Holder of
any Global Note 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, the
Senior Notes or the Guarantees.


 


SECTION 2.16.               Record Date.  The record date for purposes of determining
the identity of Holders entitled to vote or consent to any action by vote or
consent authorized or permitted under this Indenture shall be determined as
provided in TIA Section 316(c).


 


ARTICLE 3


 


Redemption


 


SECTION 3.1.                     Notices to
Trustee.  If the Issuers elect to
redeem Senior Notes pursuant to Section 3.7 hereof, at least 30 days prior to
the Redemption Date (or such shorter period prior to the Redemption Date as the
Trustee may agree to in writing), the Issuers shall notify the Trustee in
writing of the Redemption Date, the principal amount of Senior Notes to be
redeemed and the redemption price, and each of the Issuers shall and deliver to
the Trustee an Officers’ Certificate stating that such redemption will comply
with the conditions contained in Section 3.7 hereof.


 


SECTION 3.2.                     Selection
by Trustee of Senior Notes to Be Redeemed. 
In the event that fewer than all of the Senior Notes are to be redeemed,
the Trustee shall select the Senior Notes to be redeemed, if the Senior Notes
are listed on a national securities exchange, in accordance with the rules of
such exchange or, if the Senior Notes are not so listed, on either a pro rata
basis or by lot, or such other method as it shall deem fair and equitable. As
soon as practicable but in not less than 20 days prior to the Redemption Date,
the Trustee shall notify the Issuers of the Senior Notes selected for
redemption and, in the case of any Senior Notes selected for partial
redemption, the principal amount thereof to be redeemed. The Trustee may select
for redemption portions of the principal of the Senior Notes that have
denominations larger than $1,000. 
Senior Notes and portions thereof the Trustee selects shall be redeemed
in amounts of $1,000 or whole multiples of $1,000. For all purposes of this
Indenture unless the context otherwise requires, provisions of this Indenture
that apply to Senior Notes called for redemption also apply to portions of
Senior Notes called for redemption.


 


SECTION 3.3.                     Notice of
Redemption.  At least 15 days, but
no more than 30 days, before a Redemption Date, the Issuers shall mail, or
cause to be mailed, a notice of redemption


 


33

















 


by first-class mail to each
Holder of Senior Notes to be redeemed at each Holder’s last address as the same
appears on the registry books maintained by the Registrar pursuant to Section
2.3 hereof.


 


The notice shall identify the Senior Notes to
be redeemed (including the CUSIP number(s) thereof) and shall state:


 


(1) the Redemption Date;


 


(2) the redemption price and the amount of
accrued interest, if any, to be paid (or the method by which any such amount of
accrued interest to be paid is to be calculated);


 


(3) if any Senior Note is being redeemed in
part, the portion of the principal amount of such Senior Note to be redeemed
and that, after the Redemption Date and upon surrender of such Senior Note, a
new Senior Note or Senior Notes in principal amount equal to the unredeemed
portion will be issued;


 


(4) the name and address of the Paying Agent;


 


(5) that Senior Notes called for redemption
must be surrendered to the Paying Agent to collect the redemption price;


 


(6) that unless the Issuers default in making
the redemption payment, interest on Senior Notes called for redemption ceases
to accrue on and after the Redemption Date and that the only remaining right of
the Holders of such Senior Notes is to receive payment of the Senior Notes
redemption price upon surrender to the Paying Agent of the Senior Notes
redeemed; and


 


(7) the aggregate principal amount of Senior
Notes that are being redeemed.


 


At the Issuers’ request, the Trustee shall
give the notice of redemption in the Issuers’ names and at the Issuers’
expense.


 


SECTION 3.4.                     Effect of
Notice of Redemption.  Once the
notice of redemption described in Section 3.3 is mailed, Senior Notes called
for redemption become due and payable on the Redemption Date and at the
redemption price, including any premium, plus interest accrued to the
Redemption Date. Upon surrender to the Paying Agent, such Senior Notes shall be
paid at the redemption price, including any premium, plus interest accrued to
the Redemption Date, provided that if the Redemption Date is after a
regular interest payment record date and on or prior to the applicable Interest
Payment Date, the accrued interest shall be payable to the Holder of the
redeemed Senior Notes registered on the relevant record date, and provided,
further, that if a Redemption Date is a Legal Holiday, payment shall be
made on the next succeeding Business Day and no interest shall accrue for the
period from such Redemption Date to such succeeding Business Day.


 


SECTION 3.5.                     Deposit of
Redemption Price.  On or prior to
10:00 a.m., New York City time, on each Redemption Date, the Issuers shall
deposit with the Paying Agent in immediately


 


34

















 


available funds money
sufficient to pay the redemption price of and accrued interest on all Senior
Notes to be redeemed on that date other than Senior Notes or portions thereof
called for redemption on that date which have been delivered by the Issuers to
the Trustee for cancellation.


 


On and after any Redemption Date, if money
sufficient to pay the redemption price of and accrued interest on Senior Notes
called for redemption shall have been made available in accordance with the
preceding paragraph and payment thereof is not prohibited pursuant to the terms
of this Indenture, the Senior Notes called for redemption will cease to accrue
interest and the only right of the Holders of such Senior Notes will be to
receive payment of the redemption price of and, subject to the first proviso in
Section 3.4, accrued and unpaid interest on such Senior Notes to the Redemption
Date. If any Senior Note called for redemption shall not be so paid, interest
will be paid, from the Redemption Date until such redemption payment is made,
on the unpaid principal of the Senior Note and any interest not paid on such
unpaid principal, in each case, at the rate and in the manner provided in the
Senior Notes.


 


SECTION 3.6.                     Senior
Notes Redeemed in Part.  Upon
surrender of a Senior Note that is redeemed in part, the Trustee shall
authenticate for a Holder a new Senior Note equal in principal amount to the
unredeemed portion of the Senior Note surrendered.


 


SECTION 3.7.                     Optional
Redemption.  The Issuers may redeem
the Senior Notes, in whole or in part, at any time other than during the Change
of Control Redemption Period, defined in Section 4.6 below, at a redemption
price equal to 100% of the principal amount thereof, plus any accrued and
unpaid interest to the Redemption Date.


 


ARTICLE 4


 


Covenants


 


SECTION 4.1.                     Payment of
Senior Notes.  Subject to Section 1
of the Senior Notes, the Issuers shall pay the principal of, premium, if any,
and interest in cash on the Senior Notes from the Issue Date, or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, semi-annually in arrears on each Interest Payment Date and in the manner
provided in the Senior Notes at a rate per annum of 9.5% until the principal
hereof shall have become due and payable, and in cash on any overdue principal
and (without duplication and to the extent that payment of such interest is
enforceable under applicable law) on any overdue installment of interest at the
same rate per annum compounded semi-annually. The amount of interest payable on
any Interest Payment Date shall be computed on the basis of the actual number
of days elapsed and a 360-day year.


 


SECTION 4.2.                     Reports.  The Issuers will file with the SEC all
information, documents and reports to be filed with the SEC pursuant to Section
13 or 15(d) of the Exchange Act, whether or not the Issuers are subject to such
filing requirements, so long as the SEC will accept such filings on or prior to
the respective dates (such dates, including any extension granted by the SEC,
the “Required Filing Dates”) by which the Issuers would have been or are
required to so file such documents. The Issuers (at their own expense) shall also
in any event within 15


 


35

















 


days after each Required Filing
Date (i) transmit by mail to all Holders, at their addresses appearing in the
register of Senior Notes maintained by the Registrar and (ii) file with the
Trustee within 15 days after the Required Filing Date, copies of the annual
reports and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the SEC may by rules and regulations
prescribe) which the Issuers file with the SEC pursuant to Section 13 or 15(d)
of the Exchange Act or would be required to file with the SEC if they were
subject to Section 13 or 15(d) of the Exchange Act. The Issuers shall comply
with the provisions of TIA Section 314(a). 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 Issuers’ compliance with any of their covenants
hereunder (as to which the Trustee is entitled to rely exclusively on Officers’
Certificates).


 


SECTION 4.3.                     Waiver of
Stay, Extension or Usury Laws.  Each
of the Issuers and each Guarantor covenants (to the extent that it may lawfully
do so) that it will not at any time insist upon, or plead (as a defense or
otherwise) or in any manner whatsoever claim or take the benefit or advantage
of, any stay or extension law or any usury law or other law which would
prohibit or forgive either of the Issuers or any Guarantor, as the case may be,
from paying all or any portion of the principal of, premium, if any, and/or
interest on the Senior Notes as contemplated herein, wherever enacted, now or at
any time hereafter in force, or which may affect the covenants or the
performance of this Indenture; and (to the extent that it may lawfully do so)
each of the Issuers and each Guarantor hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law had
been enacted.


 


SECTION 4.4.                     Compliance
Certificate.  (a) Each of the
Issuers and each Guarantor (to the extent that such Guarantor is so required
under the TIA) shall deliver to the Trustee, within 120 days after the end of
each fiscal year, an Officers’ Certificate (one of the signers of which shall
be the principal executive officer, principal financial officer or principal
accounting officer of such Issuer or such Guarantor, as the case may be)
complying with Section 314(a)(4) of the TIA stating that a review of the
activities of such Issuer or such Guarantor, as the case may be, during such
fiscal year has been made under the supervision of the signing Officers with a
view to determining whether such Issuer or such Guarantor, as the case may be,
has kept, observed, performed and fulfilled its obligations under the
Collateral Documents and this Indenture in all material respects, and further
stating, as to each such Officer signing such certificate, that to the best of
his or her knowledge such Issuer or such Guarantor, as the case may be, has
kept, observed, performed and fulfilled each and every covenant contained in
the Collateral Documents and this Indenture and is not in default in the
performance or observance of any of the terms, provisions and conditions
thereof or hereof (determined without regard to any period of grace or
requirement of notice provided herein), or, if a Default or Event of Default
shall have occurred, describing all or such Defaults or Events of Default of
which he or she may have knowledge and what action such Issuer or such Guarantor,
as the case may be, is taking or proposes to take with respect thereto.


 


(b)  Each of the
Issuers and each Guarantor will, so long as any of the Senior Notes are
outstanding, deliver to the Trustee, forthwith upon any Officer’s becoming
aware of any Default or Event of Default, an Officers’ Certificate specifying
the nature and extent of the


 


36

















 


same in reasonable detail and
what action such Issuer or such Guarantor, as the case may be, is taking or
proposes to take with respect thereto.


 


SECTION 4.5.                     Payment of
Taxes, Etc.  The Issuers shall pay
or discharge or cause to be paid or discharged, before the same shall become
delinquent, (a) all taxes, assessments and governmental charges levied or
imposed upon them or their Subsidiaries’ income, profits or property and (b)
all lawful claims for labor, materials and supplies which, if unpaid, might by
law become a Lien upon their property; provided, however, that
the Issuers shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim (1) whose amount,
applicability or validity is being contested in good faith by appropriate
negotiations or proceedings or (2) the failure to pay or discharge which would
not have a material adverse effect on the Issuers and their Subsidiaries, taken
as a whole.


 


SECTION 4.6.                     Change of
Control


 


(a)  Upon the
occurrence of a Change of Control, each Holder shall have the right to require
that the Issuers purchase all or a portion of any outstanding Senior Notes held
by such Holder pursuant to the offer described in paragraph (b) below (the
“Change of Control Offer”) at a purchase price equal to 101% of the principal
amount thereof plus accrued interest, if any, to the date of purchase. Prior to
the mailing of the notice referred to below, but in any event within 45 days
following any Change of Control, the Issuers shall (i) cause to be repaid in
full and terminated all commitments under the Credit Agreement, and all other
Senior Indebtedness the terms of which require repayment upon a Change of
Control (if any), or cause to be offered to be repaid in full and terminated
all commitments under all Indebtedness under the Credit Agreement and all such
other Senior Indebtedness and to repay the Indebtedness owed to each lender
which has accepted such offer, or (ii) obtain the requisite consents and/or
waivers under the Credit Agreement and all other Senior Indebtedness to permit
the repurchase of the Senior Notes as provided below.


 


(b)  Within 45 days
following the date (the “Change of Control Date”) upon which the Change of
Control occurred (the “Change of Control Redemption Period”), the Issuers shall
send, by first class mail, a notice to each Holder, with a copy to the Trustee,
which notice shall govern the terms of the Change of Control Offer. The notice
to the Holders shall contain all instructions and materials necessary to enable
such Holders to tender Senior Notes pursuant to the Change of Control Offer.
Such notice shall state:


 


(i)                                     that the Change of
Control Offer is being made pursuant to this Section 4.6 and that all Senior
Notes tendered and not withdrawn will be accepted for payment;


 


(ii)                                  the purchase price
(including the amount of accrued interest) and the purchase date (which shall
be no earlier than 30 days nor later than 45 days from the date such notice is
mailed, other than as may be required by law) (the “Change of Control Payment
Date”); provided that the Change of Control Payment Date for the Senior
Notes shall be a date subsequent to any payment dates for the purchase or other
repayment of Senior Indebtedness having similar provisions;


 


(iii)                               that any Senior Notes
not tendered will continue to accrue interest;


 


37

















 


(iv)                              that, unless the Issuers
default in making payment therefor, any Senior Notes accepted for payment
pursuant to the Change of Control Offer shall cease to accrue interest after
the Change of Control Payment Date;


 


(v)                                 that Holders electing
to have a Senior Note purchased pursuant to a Change of Control Offer will be
required to surrender the Senior Note, with the form entitled “Option of Holder
to Elect Purchase” on the reverse of the Senior Note completed, to the Paying
Agent at the address specified in the notice prior to the close of business on
the third Business Day prior to the Change of Control Payment Date;


 


(vi)                              that Holders will be
entitled to withdraw their election if the Paying Agent receives, not later
than five Business Days prior to the Change of Control Payment Date, a
facsimile transmission or letter setting forth the name of the Holder, the
principal amount of the Senior Notes the Holder delivered for purchase and a
statement that such Holder is withdrawing his election to have such Senior
Notes purchased;


 


(vii)                           that Holders whose Senior
Notes are purchased only in part will be issued new Senior Notes in a principal
amount equal to the unpurchased portion of the Senior Notes surrendered; provided
that each Senior Note purchased and each new Senior Note issued shall be in an
original principal amount of $1,000 or integral multiples thereof; and


 


(viii)                        the circumstances and relevant
material facts regarding such Change of Control.


 


On or before the Change of Control Payment
Date, the Issuers shall (i) accept for payment Senior Notes or portions thereof
tendered pursuant to the Change of Control Offer and (ii) deposit with the
Paying Agent U.S. legal tender sufficient to pay the purchase price plus
accrued interest, if any, of all Senior Notes so tendered, and each of the
Issuers shall deliver to the Trustee Senior Notes so accepted together with an
Officers’ Certificate stating the Senior Notes or portions thereof being
purchased by the Issuers. The Paying Agent shall promptly mail to the Holders
of Senior Notes so accepted payment in an amount equal to the purchase price
plus accrued interest, if any, and the Trustee shall promptly authenticate and
mail to such Holders new Senior Notes equal in principal amount to any
unpurchased portion of the Senior Notes surrendered.  Any Senior Notes not so accepted shall be promptly mailed by the
Issuers to the Holder thereof. For purposes of this Section 4.6, the Trustee
shall act as the Paying Agent.


 


Any amounts remaining after the purchase of
Senior Notes pursuant to a Change of Control Offer shall be returned by the
Trustee to the Issuers.


 


The Issuers shall comply with the
requirements of Rule 14e-1 under the Exchange Act and any other securities laws
and regulations thereunder to the extent such laws and regulations are
applicable in connection with the repurchase of Senior Notes pursuant to a
Change of Control Offer. To the extent the provisions of any securities laws or
regulations conflict with the provisions under this Section 4.6, the Issuers shall
comply with the applicable securities laws and regulations and shall not be
deemed to have breached their obligations under this Section 4.6 by virtue
thereof.


 


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SECTION 4.7.                     Limitation
on Additional Indebtedness. 
Holdings, Primary Intermediate Holdco, Secondary Intermediate Holdco and
the Issuers will not, and will not permit any of their respective Subsidiaries
to, directly or indirectly, incur any Indebtedness (including Acquired
Indebtedness); provided, however, that the Issuers or any
Guarantor may incur Indebtedness (including Acquired Indebtedness) after the
Issue Date if (i) after giving effect on a pro forma basis to the incurrence of
such Indebtedness and, to the extent set forth in the definition of
Consolidated Fixed Charge Coverage Ratio, the receipt and application of the
proceeds thereof, Holdings’ Consolidated Fixed Charge Coverage Ratio would be
greater than 2 to 1; and (ii) no Default or Event of Default shall have
occurred and be continuing at the time or as a consequence of the incurrence of
such Indebtedness.


 


The foregoing paragraph shall not prohibit the incurrence of the
following:


 


(i)                                     Senior
Indebtedness at any time outstanding in an aggregate principal amount not to
exceed $160 million;


 


(ii)                                  Indebtedness under or
in connection with the Senior Notes and the Guarantees;


 


(iii)                               Any other Indebtedness
provided for in the Plan of Reorganization (including without limitation the
Brownwood Lease);


 


(iv)                              Refinancing Indebtedness;


 


(v)                                 Capitalized Lease
Obligations and/or Purchase Money Indebtedness in an aggregate principal amount
outstanding at any time not to exceed $12.5 
million;


 


(vi)                              Indebtedness of a
Subsidiary issued to and held by either of the Issuers or a Subsidiary or Indebtedness
of either of the Issuers to a Subsidiary in respect of intercompany advances or
transactions;


 


(vii)                           Indebtedness in respect of
non-speculative Interest Rate Agreements; provided that the notional
principal amount related to such non-speculative Interest Rate Agreement does
not exceed the principal amount of the Indebtedness to which such Interest Rate
Agreement relates;


 


(viii)                        Indebtedness represented by
performance bonds, warranty or contractual service obligations, standby letters
of credit or appeal bonds, in each case to the extent incurred in the ordinary
course of business of the Issuers and their Subsidiaries;


 


(ix)                                Indebtedness in respect
of netting services, overdraft protections and otherwise in connection with
Deposit Accounts;


 


(x)                                   Guarantees in the
ordinary course of business of the obligations of suppliers, landlords,
customers, franchisees and licensees of the Issuers and their Subsidiaries;


 


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(xi)                                Refinancing Notes, provided,
however, that the proceeds thereof shall be used within one Business Day
of receipt to satisfy and repay the Senior Notes in full;


 


(xii)                             Indebtedness issued in the
ordinary course of business solely to support the Issuers’ or any Subsidiary’s
insurance or self-insurance obligations (including, without limitation, to
secure workers’ compensation and other similar insurance coverages);


 


(xiii)                          Indebtedness of Essex
International Ltd. and Temple Electrical Ltd. under or in connection with that
certain Agreement for the Purchase of Debts by and between HSBC Invoice Finance
(UK) Ltd. and Essex International Limited as of August 16, 2001 in an amount
not to exceed 900,000 Pounds Sterling; and


 


(xiv)                         Indebtedness not otherwise
permitted to be incurred pursuant to clauses (i) through (xiii) above, which,
together with any other Indebtedness incurred pursuant to this clause (xiv),
has an aggregate principal amount which on a consolidated basis for Holdings
does not exceed $5 million at any time.


 


For purposes of determining compliance with,
and the outstanding principal amount of a particular Indebtedness incurred
pursuant to and in compliance with this Section 4.7, in the event such
Indebtedness meets the criteria of more than one of the types of Indebtedness
described in the first paragraph of this Section 4.7 or in clauses (i) through
(xiii) of the second paragraph of this Section 4.7, (a) Holdings and the
Issuers, in their sole discretion, shall classify such item of Indebtedness and
only be required to include the amount and type of such Indebtedness either in
the first paragraph of this Section 4.7 or one of such clauses in the second
paragraph of this Section 4.7, or any combination thereof, and (b) Holdings and
the Issuers, in their sole discretion, may reclassify such item of Indebtedness
under a different paragraph or clause of this Section 4.7 so long as such
Indebtedness met the criteria of such paragraph or clause on the date on which
it was incurred.


 


SECTION 4.8.                     Limitation
on Restricted Payments.  Holdings will
not, and will not permit any of its Subsidiaries to, directly or indirectly,
make, any Restricted Payment, unless:


 


(a)  no Default or
Event of Default shall have occurred or would occur and be continuing at the
time of and immediately after giving effect to such Restricted Payment;


 


(b)  immediately
after giving pro forma effect to such Restricted Payment, Holdings could incur
$1.00 of additional Indebtedness under the first paragraph of Section 4.7
hereof; and


 


(c)  immediately
after giving effect to such Restricted Payment, the aggregate of all Restricted
Payments declared or made after the Issue Date through and including the date
of such Restricted Payment (the “Base Period”) does not exceed the sum of (1)
50% of Holdings’ Consolidated Net Income (or in the event such Consolidated Net
Income shall be a deficit, minus 100% of such deficit) during the Base Period,
and (2) 100% of the aggregate Net Proceeds from the issue or sale during the
Base Period of Equity Interests (other than Disqualified Equity Interests or
Equity Interests of Holdings issued to any Subsidiary of Holdings or any
Indebtedness of Holdings convertible into or exercisable or exchangeable for
Equity Interests (other than Disqualified Equity Interests) of Holdings which
has been so converted or exercised


 


40

















 


or exchanged, as the case may
be).  For purposes of determining under
clause (c) the amount expended for Restricted Payments, cash distributed shall
be valued at the face amount thereof and property other than cash will be
valued at its fair market value.


 


The provisions of this Section 4.8 shall not
prohibit:


 


(i)                                     the agreement or
commitment to make any payment or distribution permitted under this Indenture
or the payment or distribution so agreed or committed to be made as long as
such payment or distribution is made on the date of such agreement or
commitment or within 60 days thereof; provided, however, that on
the date of such agreement or commitment such payment would comply with the
foregoing provisions, it being understood that the agreement or commitment to
make such payment or distribution shall constitute Indebtedness permitted under
the second paragraph of Section 4.7,


 


(ii)                                  the retirement of any
Equity Interests of either of the Issuers or Subordinated Indebtedness of
Holdings or any of its Subsidiaries or the Plan of Reorganization Preferred
Stock by conversion into or by an exchange for Equity Interests (other than
Disqualified Equity Interests), or out of the Net Proceeds of the substantially
concurrent sale (other than to a Subsidiary of the Issuers) of other Equity
Interests of Holdings (other than Disqualified Equity Interests),


 


(iii)                               the redemption or
retirement of Subordinated Indebtedness of either of the Issuers in exchange
for, by conversion into, or out of the Net Proceeds of, a substantially
concurrent sale or incurrence of Indebtedness (other than any Indebtedness owed
to a Subsidiary of either of the Issuers) that is contractually subordinated in
right of payment to the Senior Notes to at least the same extent as the
Subordinated Indebtedness being redeemed or retired, if at all,


 


(iv)                              the retirement of any
Disqualified Equity Interests by conversion into, or by exchange for, shares of
Disqualified Equity Interests, or out of the Net Proceeds of the substantially
concurrent sale (other than to a Subsidiary of either of the Issuers) of other
Disqualified Equity Interests,


 


(v)                                 distributions made by
Subsidiaries of Holdings to Holdings solely for the purpose of paying foreign,
federal, state or local taxes owed by Holdings and its consolidated
Subsidiaries,


 


(vi)                              distributions made by
Subsidiaries of Holdings to Holdings to pay the fees and expenses of Holdings
incurred in the ordinary course of business (including, without limitation, (x)
franchise taxes and similar costs, (y) any such Subsidiary’s proportionate
share of any fees and expenses payable to directors of Holdings and (z)
insurance premiums in respect of directors’ and officers’ liability insurance)
and other costs and expenses in connection with Holdings being a publicly
traded company (including, without limitation, fees and expenses of
professionals and regulatory compliance), or


 


(vii)                           Restricted Payments provided
for in the Plan of Reorganization to be made on or as of the Issue Date;


 


41

















 


provided, however,
that in the case of the immediately preceding clauses (ii) and (iii), no
Default or Event of Default shall have occurred and be continuing at the time
of such Restricted Payment or would occur as a result thereof.


 


In determining the aggregate amount of
Restricted Payments made subsequent to the Issue Date for purposes of clause
(c) above, amounts expended pursuant to clauses (i) and (ii) of the immediately
preceding paragraph shall be included, but without duplication, in such
calculation.


 


For purposes of calculating the Net Proceeds
received by Holdings from the issuance or sale of its Equity Interests either
upon the conversion of, or in exchange for, Indebtedness of Holdings or any
Subsidiary, such amount will be deemed to be an amount equal to the difference
of (a) the sum of (i) the principal amount or accreted value (whichever is
less) of such Indebtedness on the date of such conversion or exchange and (ii)
the additional cash consideration, if any, received by Holdings upon such
conversion or exchange, plus any payment on account of fractional shares, minus
(b) all expenses incurred in connection with such issuance or sale. In
addition, for purposes of calculating the Net Proceeds received by Holdings
from the issuance or sale of its Equity Interests upon the exercise of any
options or warrants of Holdings, such amount shall be deemed to be an amount
equal to the difference of (a) the additional cash consideration, if any,
received by Holdings upon such exercise, minus (b) all fees, commissions,
discounts and expenses incurred by Holdings in connection with such issuance or
sale, if any.


 


SECTION 4.9.                     Limitations
on Liens.  The Issuers will not, and
will not permit any of their Subsidiaries to, create, incur or otherwise cause
or suffer to exist or become effective any Liens of any kind (other than
Permitted Liens) upon any property or asset of the Issuers or any Subsidiary or
any shares of stock or debt of any Subsidiary which owns property or assets,
now owned or hereafter acquired, or any income or profits therefrom, unless (i)
if such Lien secures Indebtedness which is pari  passu with the
Senior Notes, then the Senior Notes are secured on an equal and ratable basis
with the obligations so secured until such time as such obligations are no
longer secured by a Lien or (ii) if such Lien secures Subordinated
Indebtedness, any such Lien shall be subordinated to a Lien on such property or
asset or shares of stock or debt granted to the Holders of the Senior Notes to
the same extent as such Subordinated Indebtedness is subordinated to the Senior
Notes.


 


SECTION 4.10.               Limitation on
Certain Asset Sales.  Neither the
Issuers nor any of their Subsidiaries will consummate or permit, directly or
indirectly, any Asset Sale, unless (i) such Issuers or such Subsidiary, as the
case may be, receives consideration at the time of each such Asset Sale at
least equal to the fair market value of the Property subject to such Asset
Sale, (ii) in the case of all Asset Sales, at least 75% of the consideration
received by such Issuer or such Subsidiary is in the form of cash or Temporary
Cash Investments, and (iii) no Default or Event of Default shall have occurred
and be continuing on the date of such proposed Asset Sale or would result as a
consequence of such Asset Sale; provided that (a) the amount of any
notes or other obligations received by such Issuer or such Subsidiary from such
transferee that are converted by such Issuer or such Subsidiary into cash (to
the extent of the cash received) within 90 days following the closing of such
Asset Sale and (b) any Designated Noncash Consideration received by such Issuer
or any of its Subsidiaries in such Asset Sale having an aggregate fair market
value, taken together with all other Designated Noncash Consideration received
pursuant


 


42

















 


to this clause (b) that is at
that time outstanding, less the amount of cash or Temporary Cash Investments
received by Issuers or any of their Subsidiaries in connection with a
subsequent sale of any such Designated Noncash Consideration, not exceeding $5
million at the time of the receipt of such Designated Noncash Consideration
(measured at the time received and without giving effect to subsequent changes
in value) shall be deemed to be cash for purposes of clause (ii) of this
provision.


 


With respect to any Asset Sale Proceeds related to Collateral in the
form of cash or Temporary Cash Investments (including cash collected on any
notes), and any Insurance Proceeds or Condemnation Proceeds on account of any
separate loss of any Collateral of the Issuers or their Subsidiaries in excess
of $5 million which are not applied to the repair, rebuilding, restoration or
replacement of the Collateral affected by the subject Loss Event (in any such
case, the “Collateral Proceeds Amount”), the Issuers shall (i) to the extent
the Issuers elect, apply the Collateral Proceeds Amount to acquire Property (provided
that, in the case of an Asset Sale of Property constituting Collateral under
the Collateral Agreement, the Issuers shall cause such Property to become
Collateral under the Collateral Agreement as and when received by the Issuers
or by any of its Subsidiaries), that is useful in any business in which the
Issuers are permitted to be engaged within 365 days from the later of the date
of such Asset Sale or the receipt of such Collateral Proceeds Amount (or become
contractually bound to do so); or (ii) to the extent permitted under Section
9.2.23 of the Credit Agreement as in effect on the Effective Date, make an
offer (a “Collateral Proceeds Offer”) for up to a maximum principal amount
(expressed as an integral multiple of $1,000) of Senior Notes equal to the Collateral
Proceeds Amount to the extent the balance of such Collateral Proceeds Amount
after application in accordance with clause (i) is in excess of $1 million at a
purchase price equal to 100% of the principal amount thereof plus accrued and
unpaid interest thereon, if any, to the date of purchase in accordance with the
procedures set forth in this Indenture. To the extent that the aggregate
principal amount of Senior Notes tendered pursuant to such Collateral Proceeds
Offer is less than the Collateral Proceeds Amount, the Issuers may use such
portion of the Collateral Proceeds Amount that is not used to purchase Senior
Notes tendered for general corporate purposes not inconsistent with the Senior
Notes or this Indenture. If the aggregate principal amount of the Senior Notes
tendered pursuant to such Collateral Proceeds Offer is more than the Collateral
Proceeds Amount, the Senior Notes tendered will be repurchased on a pro  rata
basis or by such other method as the Trustee shall deem fair and appropriate.
Upon the completion of any Collateral Proceeds Offer and the closing of any
repurchase of Senior Notes tendered pursuant to such Collateral Proceeds Offer,
the Collateral Proceeds Amount shall be deemed to be zero.


 


Pending their use as hereinabove prescribed,
all Asset Sale Proceeds from Asset Sales of Property constituting Collateral,
Insurance Proceeds and Condemnation Proceeds from Loss Events and non-cash
consideration from Asset Sales of Property constituting Collateral, including
all Collateral Proceeds Amounts, shall be applied as provided for under the
Collateral Documents.


 


If the Issuers are required to make a
Collateral Proceeds Offer, the Issuers shall mail, within 30 days following the
date on which the Issuers receive any Collateral Proceeds Amounts, notice to
the holders of the Senior Notes stating, among other things: (1) that such
holders have the right to require the Issuers to apply the Collateral Proceeds
Amount to repurchase such Senior Notes at a purchase price in cash equal to
100% of the principal amount thereof plus


 


43

















 


accrued and unpaid interest, if
any, to the date of purchase; (2) the purchase date, which shall be no earlier
than 30 days and not later than 60 days from the date such notice is mailed;
(3) the instructions, determined by the Issuers, that each holder of Senior
Notes must follow in order to have such Senior Notes repurchased; and (4) the
calculations used in determining the Collateral Proceeds Amount to be applied
to the repurchase of such Senior Notes.


 


The Issuers will comply with the requirements
of Rule 14e-1 under the Exchange Act and any other securities laws and
regulations thereunder to the extent such laws and regulations are applicable
in connection with the prepayment, repayment, redemption or the repurchase of
Senior Notes with the Asset Sale Proceeds as required herein.


 


To the extent that the provisions of any
securities laws or regulations conflict with provisions of this covenant, the
Issuers will comply with the applicable securities laws and regulations and
will not be deemed to have breached its obligations under this covenant by
virtue thereof.


 


SECTION 4.11.               Limitation on
Transactions with Affiliates.  The
Issuers will not, and will not permit any of their Subsidiaries to, directly or
indirectly, enter into or suffer to exist any transaction or series of related
transactions (including, without limitation, the sale, purchase, exchange or
lease of assets, property or services) with any Affiliate of the Issuers
(including any Affiliate in which the Issuers or any Subsidiary thereof owns a
minority interest) (each such transaction, an “Affiliate Transaction”) or
extend, renew, waive or otherwise modify the terms of any Affiliate Transaction
entered into prior to the Issue Date unless (i) such Affiliate Transaction is
solely between or among Holdings and its Wholly-Owned Subsidiaries; (ii) such
Affiliate Transaction is solely between or among Wholly-Owned Subsidiaries of
Holdings; or (iii) the terms of such Affiliate Transaction are fair and
reasonable, as determined by the Board of Directors of Holdings, to Holdings or
such Subsidiary, as the case may be, and the terms of such Affiliate
Transaction are at least as favorable, as determined by the Board of Directors
of the Issuer that is the direct parent of such Wholly-Owned Subsidiary, as the
terms which could be obtained by the Issuer or such Subsidiary, as the case may
be, in a comparable transaction made on an arm’s-length basis between
unaffiliated parties. In any Affiliate Transaction involving an amount or
having a value in excess of $5 million in any one year which is not permitted
under clause (i) or (ii) above, the Issuer or such Subsidiary, as the case may
be, must obtain a resolution of an independent committee of its Board of
Directors certifying that such Affiliate Transaction complies with clause (iii)
above, as the case may be.


 


The foregoing provisions will not apply to
(i) the payment of reasonable annual compensation to directors or officers of
the Issuers (including the issuance of stock options and/or stock awards) and
(ii) the continued performance of transactions with Affiliates disclosed in the
Plan of Reorganization, on no less favorable terms as disclosed in the Plan of
Reorganization.


 


SECTION 4.12.               Limitations on
Investments.  Holdings will not, and
will not permit any of its Subsidiaries to, make any Investment other than (i)
a Permitted Investment or (ii) an Investment that is made as a Restricted
Payment in compliance with Section 4.8 hereof.


 


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SECTION 4.13.               Future Subsidiary
Guarantors.  Holdings and the
Issuers shall cause (i) each Domestic Subsidiary, created or acquired, directly
or indirectly, by Holdings or either of the Issuers after the date hereof and
(ii) each Domestic Subsidiary that provides a guarantee under the Credit
Facility to execute a Supplemental Indenture in the form included as part of
Exhibit C to this Indenture providing for a Guarantee of the Issuers’ obligations
hereunder and reasonably satisfactory in form and substance to the Trustee (and
with documentation relating thereto as the Trustee shall require, including,
without limitation, a supplement or amendment to this Indenture and an Opinion
of Counsel as to the enforceability of such Subsidiary’s Guarantee); provided
that such Subsidiary shall not be required to execute such a Supplemental
Indenture if such Subsidiary is an Unrestricted Subsidiary, is prohibited by
law from making such a Guarantee, such Subsidiary would have been released from
its guarantee by virtue of events set forth in Section 11.4 hereof or such
Subsidiary is a Subsidiary of a Person which has been released as a guarantor
pursuant to Section 11.4 hereof. Any Subsidiary that becomes obligated to
execute a Supplemental Indenture pursuant to this Section 4.13, shall also
become a party to the Collateral Agreement and any other documents required to
grant to the Collateral Agent, for the benefit of Holders, a Lien on any real,
personal or mixed property of such Subsidiary as security for the Senior Note
Obligations.


 


SECTION 4.14.               Designation of
Subsidiaries and Unrestricted Subsidiaries.  (a) The Issuers may by written notice to the Trustee designate
any Subsidiary (including a newly acquired or newly formed Subsidiary) to be an
Unrestricted Subsidiary; provided, however, that (i) no Default
or Event of Default shall have occurred and be continuing or would arise
therefrom, (ii) such designation is at that time permitted under Section 4.8 hereof
and (iii) immediately after giving effect to such designation, Holdings could
incur $1.00 of additional Indebtedness pursuant to the first paragraph of
Section 4.7. In the event the Issuers designate a Subsidiary to be an
Unrestricted Subsidiary, the following provisions shall apply:


 


(i)                                     an “Investment”
shall be deemed to have been made at the time any Subsidiary is designated as
an Unrestricted Subsidiary in an amount (proportionate to Holdings’ percentage
Equity Interest in such Subsidiary) equal to the net worth of such Subsidiary
at the time that such Subsidiary is designated as an Unrestricted Subsidiary;


 


(ii)                                  at any date the
aggregate of all Restricted Payments made as Investments since the Issue Date
shall exclude and be reduced by an amount (proportionate to Holdings’
percentage Equity Interest in such Subsidiary) equal to the net worth of any
Unrestricted Subsidiary at the time that such Unrestricted Subsidiary is
designated a Subsidiary, not to exceed, in the case of any such redesignation of
an Unrestricted Subsidiary as a Subsidiary, the amount of Investments
previously made by the Holdings and its Subsidiaries in such Unrestricted
Subsidiary; and


 


(iii)                               any property transferred
to or from an Unrestricted Subsidiary shall be valued at its fair market value
at the time of such transfer.


 


For purposes of clauses (i) and (ii) above,
“net worth” shall be calculated based upon the fair market value of the assets
of such Subsidiary as of any such date of designation.


 


45

















 


(b)  Notwithstanding
clause (a) above, neither Issuer’s Board of Directors may designate any
Subsidiary to be an Unrestricted Subsidiary after the Issue Date if, after such
designation:


 


(i)                                     the Issuers or any
of their Subsidiaries provides credit support for, or a guarantee of, any
Indebtedness or other obligation (contingent or otherwise) of such Subsidiary
(including any understanding, agreement or instrument evidencing such
Indebtedness or obligation) or is otherwise subject to recourse or obligated
thereunder or therefor, unless such credit support or guarantee is permitted by
the terms of this Indenture;


 


(ii)                                  a default with
respect to any Indebtedness of such Subsidiary (including any right which the
holders thereof may have to take enforcement action against such Subsidiary)
would permit (upon notice, lapse of time or both) any holder of any other
Indebtedness of the Issuers or any Subsidiary of the Issuers to declare a
default on such other Indebtedness or cause the payment thereof to be
accelerated or payable prior to its final scheduled maturity;


 


(iii)                               such Subsidiary owns any
Equity Interests in, or owns or holds any Lien on any property of, any
Subsidiary which is not a Subsidiary of the Subsidiary to be so designated;


 


(iv)                              such Subsidiary has any
contract, arrangement, agreement or understanding with the Issuers, or any
Subsidiary of the Issuers, whether written or oral, other than a transaction
having terms no less favorable to the Issuers or such Subsidiary of the Issuers
than those which might be obtained at the time from Persons who are not
Affiliates of the Issuers; or


 


(v)                                 the Issuers or any
Subsidiary of the Issuers has any obligation to subscribe for any Equity
Interest in such Subsidiary or to maintain or preserve such Subsidiary’s
financial condition or to cause such Subsidiary to achieve specified levels of
operating results, unless such obligation is permitted by the terms of this
Indenture.


 


SECTION 4.15.               Limitation on
Dividends and Other Payment Restrictions Affecting Subsidiaries.  The Issuers will not, and will not permit
any of their Subsidiaries to, directly or indirectly, create or otherwise cause
or suffer to exist or become effective any consensual encumbrance or
restriction of any kind on the ability of any of their Subsidiaries to (a) pay
dividends or make any other distributions in cash or otherwise on their Equity
Interests to the Issuers or any of their Subsidiaries, (b) pay any Indebtedness
owed to the Issuers or any Subsidiaries, (c) make loans or advances to the
Issuers or any Subsidiary thereof, (d) transfer any of its properties or assets
to the Issuers or any Subsidiary thereof (other than customary restrictions on
transfer of property subject to a Permitted Lien under the term of the agreements
creating such Permitted Lien (other than a Lien on cash not constituting
proceeds of non-cash property subject to a Permitted Lien) which would not
materially adversely affect the Issuers’ or any Subsidiary’s ability to satisfy
its obligations under the Senior Notes), or (e) guarantee any Indebtedness of
either of the Issuers or any Subsidiary of either of the Issuers, except, in
each case, for such encumbrances or restrictions existing under or contemplated
by reason of (i) the Senior Notes or this Indenture, (ii) any restrictions
existing under or contemplated by agreements


 


46

















 


evidencing any Senior
Indebtedness, (iii) any restrictions which are in existence on the Issue Date
(including pursuant to the Brownwood Lease) or which exist with respect to a
Person that becomes a Subsidiary on or after the Issue Date, which are in
existence at the time such Person becomes a Subsidiary of either of the Issuers
(but not created in connection with or contemplation of such Person becoming a
Subsidiary of either of the Issuers and which encumbrance or restriction is not
applicable to any Person or the property or assets of any Person other than
such Person or the property or assets of such Person (or their Subsidiaries) so
acquired) and any agreement that refinances or replaces the same; provided,
however, that the terms and conditions of any such restrictions are not
materially less favorable in the aggregate to the holders of the Senior Notes
than those under or pursuant to the agreement being replaced or the agreement
evidencing the Indebtedness refinanced or replaced, (iv) customary
non-assignment provisions in any contract or licensing agreement entered into
by either of the Issuers or any Subsidiary of either of the Issuers in the
ordinary course of business or in any lease governing any leasehold interest of
the Issuers or a Subsidiary, (v) any restrictions existing under or
contemplated by agreements evidencing any Purchase Money Indebtedness or
Capitalized Lease Obligations that impose restrictions on the ability of any of
the Issuers or their Subsidiaries to transfer the property so acquired or
leased to either of the Issuers or their Subsidiaries and (vi) any restrictions
existing under or contemplated by agreements evidencing any Refinancing
Indebtedness, providing that the restrictions contained in the agreements
governing such Refinancing Indebtedness are no more restrictive in whole than
those contained in the agreements governing the Indebtedness being refinanced.


 


SECTION 4.16.               Restriction on
Sale and Issuance of Certain Subsidiary Equity Interests.  The Issuers and their Subsidiaries will not
issue or sell any Equity Interests of any Subsidiary to any person other than
the Issuers or a Wholly-Owned Subsidiary of either of the Issuers (except for
common Equity Interests with no preferences or special rights or privileges and
with no redemption or prepayment provisions, provided that such common
Equity Interests are sold in compliance with Section 4.10 and immediately after
giving effect to such issuance or sale, such Subsidiary either continues to be
a Subsidiary or if such Subsidiary would no longer be considered a Subsidiary,
then the investment of the Issuer in such Person (after giving effect to such
issuance or sale) would have been permitted to be made under Section 4.10 as if
made on the date of such issuance or sale and except to qualify directors to
the extent required by applicable law).


 


SECTION 4.17.               Limitation on
Sale and Lease-Back Transactions.  The Issuers will not, and will not permit any of their
Subsidiaries to, enter into any Sale and Lease-Back Transaction unless (i) the
consideration received in such Sale and Lease-Back Transaction is at least
equal to the fair market value of the property sold and (ii) immediately prior
to and after giving effect to the Attributable Indebtedness in respect of such
Sale and Lease-Back Transaction, Holdings could incur at least $1.00 of
additional Indebtedness pursuant to the first paragraph of Section 4.7.


 


SECTION 4.18.               Conduct of
Business.  Neither the Issuers nor
their Subsidiaries shall engage in any businesses a majority of whose revenues
are not derived from the same or reasonably similar, ancillary or related to,
or a reasonable extension, development or expansion of, the businesses in which
the Issuers and their Subsidiaries are engaged on the Effective Date.


 


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SECTION 4.19.               Limitation on
Status as Investment Company. 
Neither the Issuers nor any of their Subsidiaries will take any action
or suffer to exist any condition that would require the Issuers or any of their
Subsidiaries to register as an “investment company” (as that term is defined in
the Investment Company Act of 1940, as amended), or otherwise become subject to
regulation as an investment company.


 


SECTION 4.20.               Corporate
Existence.  Subject to Article 5
hereof, the Company shall do or cause to be done all things necessary to
preserve and keep in full force and effect its limited liability company
existence and the Co-Issuer shall do or cause to be done all things necessary
to preserve and keep in full force and effect is corporate existence, and the
Issuers shall do or cause to be done all things necessary to preserve and keep
in full force and effect the corporate, partnership, limited liability company
or other existence of each of their respective Subsidiaries, in accordance with
the respective organizational documents (as the same may be amended from time
to time) of each such Subsidiary and the rights (charter and statutory),
licenses and franchises of the Issuers and their respective Subsidiaries; provided,
however, that an Issuer shall not be required to preserve any such
right, license or franchise, or the corporate, partnership, limited liability
company or other existence of any of their Subsidiaries, if such Issuer’s Board
of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of such Issuer and its Subsidiaries,
taken as a whole.


 


SECTION 4.21.               Maintenance of
Office or Agency.  Each of the
Issuers shall maintain in the Borough of Manhattan, the City of New York, an
office or agency where Senior Notes may be surrendered for registration of
transfer or exchange or for presentation for payment and where notices and
demands to or upon the Issuers in respect of the Senior Notes and this
Indenture may be served. The Issuers 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 Issuers shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at
the address of the Trustee as set forth in Section 12.2.


 


The Issuers may also from time to time
designate one or more other offices or agencies where the Senior Notes may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations. The Issuers shall give prompt written notice to the
Trustee of such designation or rescission and of any change in the location of
any such other office or agency; provided, however, that no such
designation or rescission shall relieve the Issuers of their obligation to
maintain an office or agency in the Borough of Manhattan, the City of New York,
for such purposes.


 


The Issuers initially appoint the Trustee as
Registrar, Paying Agent and Agent for service of notices and demands in
connection with the Senior Notes and this Indenture.


 


SECTION 4.22.               Maintenance of
Insurance; Books and Records; Compliance with Laws.  (a) Each of the Issuers and each of their
respective Subsidiaries shall provide or cause to be provided, for itself and
each of their respective Subsidiaries, insurance (including appropriate
self-insurance) that is adequate and appropriate for the conduct of the
business of the Issuers and such Subsidiaries in a prudent manner, with
reputable insurers, or, in the case of any foreign Subsidiary, with the
government of any member of the European Union or with the government


 


48

















 


of the United States of America
or an agency or instrumentality thereof, in such amounts, with such deductibles,
and by such methods as shall be customary for and available to businesses
similarly situated in the industry.


 


(b)  Each of the
Issuers shall and shall cause each of their Subsidiaries to keep proper books
of record and account, in which full and correct entries shall be made of all
financial transactions and the assets and business of the Issuers and each of
their respective Subsidiaries, in accordance with GAAP consistently applied to
the Issuers and each of their respective Subsidiaries taken as a whole.


 


(c)  Each of the
Issuers shall and shall cause each of their Subsidiaries to comply with all
statutes, laws, ordinances, or government rules and regulations to which they
are subject, noncompliance with which would materially adversely affect the business,
prospects, earnings, properties, assets or condition (financial or otherwise)
of the Issuers and their Subsidiaries taken as a whole.


 


SECTION 4.23.               Further
Assurances to the Trustee.  Each of
the Issuers shall (and shall cause each of their respective Subsidiaries to)
execute, acknowledge, deliver, record, re-record, file, re-file, register and
re-register, any and all such further acts, deeds, conveyances, security
agreements, mortgages, assignments, estoppel certificates, financing statements
and continuations thereof, termination statements, notices of assignment,
transfers, certificates, assurances and other instruments as may be reasonably
required from time to time in order (i) to carry out more effectively the
purposes of the Collateral Documents, (ii) to subject to the Liens created by
any of the Collateral Documents any of the properties, rights or interest
required to be encumbered thereby, (iii) to perfect and maintain the validity,
effectiveness and priority of any of the Collateral Documents and the Liens
intended to be created thereby, and (iv) to better assure, convey, grant,
assign, transfer, preserve, protect and confirm to the Trustee any of the
rights granted or now or hereafter intended by the parties thereto to be
granted to the Trustee or under any other instrument executed in connection
therewith or granted to the Issuers under the Collateral Documents or under any
other instrument executed in connection therewith.


 


SECTION 4.24.               Collateral
Documents.  Neither the Issuers nor
any of their respective Subsidiaries will amend, waive or modify, or take or
refrain from taking any action that has the effect of amending, waiving or
modifying, any provision of the Collateral Documents or engaging in any
transfer of assets from a company whose capital stock and assets constitute
Collateral or any restructuring of the affairs of such a company and its
subsidiaries to the extent that such amendment, waiver, modification, action or
restructuring could reasonably be expected to have an adverse effect on the
rights of the Trustee, the Collateral Agent or the Holders, provided
that (i) the Collateral may be released or modified in an Asset Sale as
expressly authorized in this Indenture or in the Collateral Documents; (ii) any
Guarantee and pledges may be released in an Asset Sale as expressly provided in
this Indenture or in the Collateral Documents; (iii) this Indenture and any of
the Collateral Documents may be otherwise amended, waived or modified as set
forth under Article 10 hereof; and (iv) nothing herein shall be deemed to
prohibit or restrict any action (or omission) that the Issuers or any of their
Subsidiaries is expressly permitted to take hereunder.


 


49

















 


SECTION 4.25.               Future Pledges of
Collateral to Secure Secondary Senior Notes.  The Collateral Documents shall provide that the Holders of
Secondary Senior Notes when issued, shall, automatically and without further
action, become the beneficiaries of the pledges of property and assets to the
Collateral Agent pursuant to the Collateral Documents and such Secondary Senior
Notes shall also be secured by the Collateral.


 


SECTION 4.26.               Additional
Pledges.  If on or after the Issue
Date, Holdings, Primary Intermediate Holdco, Secondary Intermediate Holdco, the
Issuers or any of their Subsidiaries pledges property or assets to secure
obligations under the Credit Agreement (other than pursuant to the Collateral
Documents or as contemplated by the Credit Agreement in effect on the date
hereof), then such property or assets shall also secure the Senior Notes. In
the event that no Credit Facility is outstanding and in effect, promptly (and
in any event within twenty (20) Business Days) after the creation or
acquisition by Holdings of a new Subsidiary that becomes a Guarantor pursuant
to Section 4.13, such Issuer shall cause such Subsidiary to become a party to
the Collateral Documents or executive documents substantially similar to the
Collateral Documents, and the Issuer or Guarantor that is such new Guarantor’s
direct parent company shall execute such agreement or other document reasonably
satisfactory to the Trustee and pursuant to which all the Equity Interests of
such new Guarantor shall be pledged to the Trustee (for the benefit of the
Holders) to secure the Senior Note Obligations and such other related documents
as the Trustee may request, all in form and substance reasonably satisfactory
to the Trustee.


 


ARTICLE 5


 


Successor
Corporation


 


SECTION 5.1.                     Merger,
Consolidation or Sale of Assets.  (a)   Neither Issuer will consolidate with, merge
with or into, or sell, assign, lease, convey, transfer or otherwise dispose of
(a “transfer”) all or substantially all of its assets (as an entirety or
substantially as an entirety in one transaction or a series of related
transactions), to any Person unless: (i) such Issuer shall be the continuing
Person, or the Person (if other than such Issuer) formed by such consolidation
or into which such Issuer is merged or to which the properties and assets of
such Issuer are transferred shall be a corporation or limited liability company
organized and existing under the laws of the United States or any State thereof
or the District of Columbia and shall expressly assume, by a supplemental
indenture, executed and delivered to the Trustee, in form reasonably
satisfactory to the Trustee, all of the obligations of such Issuer under the
Senior Notes, this Indenture and the Collateral Documents, and the obligations
under this Indenture shall remain in full force and effect; (ii) immediately
before and immediately after giving effect to such transaction, no Default or
Event of Default shall have occurred and be continuing; (iii) immediately after
giving effect to such transaction on a pro forma basis Holdings or such Person
could incur at least $1.00 additional Indebtedness pursuant to the first
paragraph of Section 4.7 hereof; and (iv) immediately thereafter, the Issuer or
the other surviving entity, as the case may be, shall have a Consolidated Net
Worth equal to or greater than the Consolidated Net Worth of the Issuer
immediately prior to such transaction.


 


(b)  In connection
with any consolidation, merger or transfer of assets contemplated by this
Section 5.1, the Issuer undergoing such transfer shall deliver or cause to be


 


50

















 


delivered, to the Trustee, in form and substance reasonably
satisfactory to the Trustee, an Officers’ Certificate and an Opinion of
Counsel, each stating that such consolidation, merger or transfer and the
supplemental indenture in respect thereto comply with this Section 5.1 and that
all conditions precedent herein provided for relating to such transaction or
transactions have been complied with.


 


(c)  This Section 5.1
shall not apply to the sale of the stock or assets of the Issuers or any
Subsidiary of either of the Issuers in accordance with Section 4.10 hereof.


 


SECTION 5.2.                     Successor
Person Substituted.  Upon any
consolidation or merger, or any transfer of all or substantially all of the
assets of either of the Issuers or any of their respective Subsidiaries in
accordance with Section 5.1 above, the successor entity formed by such
consolidation or into which either of the Issuers or any of their respective
Subsidiaries is merged or to which such transfer is made shall succeed to, and
be substituted for, and may exercise every right and power of, either of the
Issuers or such Subsidiary under this Indenture with the same effect as if such
successor entity had been named as such Issuer or such Subsidiary herein, and
thereafter the predecessor entity shall be relieved of all obligations and
covenants under this Indenture and the Senior Notes, except, in the case of a
transfer, for the obligation to pay the principal of, and interest on, the
Senior Notes.


 


ARTICLE 6


 


Defaults and
Remedies


 


SECTION 6.1.                     Events of
Default.  An “Event of Default”
occurs if:


 


(1) there is a default in the payment of any
principal of, or premium, if any, on the Senior Notes when the same becomes due
and payable on the Maturity Date, upon optional redemption, upon required
repurchase, upon declaration or otherwise;


 


(2) there is a default for 30 days in the
payment of any interest on the Senior Notes after such interest becomes due and
payable;


 


(3) either Issuer or any Guarantor fails to
comply with any of the terms or provisions of Section 5.1 hereof;


 


(4) either Issuer or any Guarantor defaults
in the observance or performance of any other provision, covenant or agreement
contained in the Senior Notes, this Indenture or the Collateral Documents for
30 days after written notice from the Trustee or the holders of not less than
25% in aggregate principal amount of the Senior Notes then outstanding;


 


(5) there is a failure to pay when due (and
beyond the grace period, if any, therefor) principal, interest or premium in an
aggregate amount of $2.5 million or more with respect to any Indebtedness of
Holdings, Primary Intermediate Holdco, Secondary Intermediate Holdco, either
Issuer or any Subsidiary thereof, or the acceleration prior to its express
maturity of any such Indebtedness aggregating $2.5 million or more and such
acceleration does not cease to exist, or such debt is not satisfied, in either
case within 30 days after such acceleration;


 


51

















 


(6) a court of competent jurisdiction renders
a final judgment or judgments which can no longer be appealed for the payment
of money, in any individual case or in the aggregate at any time, in excess of
$2.5 million (which are not paid or covered by third party insurance or bond by
financially sound insurers) against Holdings, Primary Intermediate Holdco,
Secondary Intermediate Holdco, either Issuer or any Subsidiary thereof and such
judgment remains undischarged for a period of 60 consecutive days during which
a stay of enforcement of such judgment shall not be in effect;


 


(7) Holdings, Primary Intermediate Holdco,
Secondary Intermediate Holdco, either Issuer or any Subsidiary thereof pursuant
to or within the meaning of any Bankruptcy Law:


 


(A)                              commences
a voluntary case or proceeding,


 


(B)                                consents
to the entry of an order for relief against it in an involuntary case or
proceeding,


 


(C)                                consents
to the appointment of a Custodian of it or for all or substantially all of its
property,


 


(D)                               makes
a general assignment for the benefit of its creditors or shall admit in writing
its inability to pay its debt, or


 


(E)                                 generally
is not paying its debts as they become due;


 


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


 


(A)                              is
for relief against Holdings, Primary Intermediate Holdco, Secondary
Intermediate Holdco, either Issuer or any Subsidiary thereof in an involuntary
case or proceeding,


 


(B)                                appoints
a Custodian of either Issuer or any Subsidiary thereof or for all or
substantially all of the property of Holdings, Intermediate Holdco, Secondary
Intermediate Holdco or any Subsidiary thereof, or


 


(C)                                orders
the liquidation of Holdings, Primary Intermediate Holdco, Secondary
Intermediate Holdco, either Issuer or any Subsidiary thereof,


 


(D)                               and,
in each case, the order or decree remains unstayed and in effect for 60
consecutive days;


 


(9) at any time after the execution and
delivery thereof, (i) any Guarantee for any reason, other than the satisfaction
in full of all Obligations guaranteed thereunder or the release of such
Guarantee pursuant to Section 11.4, shall cease to be in full force and
effect (other than in accordance with its terms) or shall be declared to be
null and void, or (ii) a material 


 


52

















 


Collateral Document shall cease to be in full force and effect (other
than by reason of a release of Collateral thereunder in accordance with the
terms hereof or thereof, the satisfaction in full of the Obligations or any
other termination of such Collateral Document in accordance with the terms
hereof or thereof) or shall be declared null and void, or the Trustee or the
Collateral Agent shall not have or shall cease to have a valid and perfected
second priority Lien for any period in excess of 30 days on any Collateral
purported to be covered thereby having a fair market value, individually or in
the aggregate, exceeding $2.5 million, in each case for any reason other than
the failure of the Trustee or the Collateral Agent to take any action within
its control; or


 


(10)                            holders of Senior
Indebtedness holding a Lien on the stock or assets of either Issuer or any
Subsidiary take any judicial action to enforce such Lien.


 


Subject to the provisions of Sections 7.1 and
7.2, the Trustee shall not be charged with knowledge of any Default or Event of
Default unless written notice thereof shall have been given to a Responsible
Officer at the Corporate Trust Office by the Issuers or any other Person.


 


SECTION 6.2.                     Acceleration.  If an Event of Default (other than an Event
of Default arising under Section 6.1(7) or (8)) occurs and is continuing, the
Trustee by notice to the Issuers, or the Holders of not less than 25% in
aggregate principal amount of the Senior Notes then outstanding by written
notice to the Issuers and the Trustee, may declare to be immediately due and
payable the entire principal amount of all the Senior Notes then outstanding
plus premium, if any, and accrued interest to the date of acceleration; provided,
however, that after such acceleration but before a judgment or decree
based on such acceleration is obtained by the Trustee, the Holders of 51% in
aggregate principal amount of the outstanding Senior Notes may rescind and
annul such acceleration if all existing Events of Default, other than
nonpayment of accelerated principal, premium, if any, or interest, have been
cured or waived as provided in this Indenture and if the rescission would not
conflict with any then binding judgment or decree. No such rescission shall
affect any subsequent Default or impair any right consequent thereto.


 


In case an Event of Default specified in
Section 6.1(7) or (8) occurs, the principal, premium, if any, and interest
amount with respect to all of the Senior Notes shall ipso facto become and be immediately due and payable without
any declaration or other act on the part of the Trustee or the Holders of the
Senior Notes.


 


SECTION 6.3.                     Other
Remedies.  Subject to the Collateral
Documents, if an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy by proceeding at law or in equity to collect the
payment of principal of, or premium, if any, and interest on the Senior Notes
or to enforce the performance of any provision of the Senior Notes or this
Indenture and may take any necessary action requested of it as Trustee to
settle, compromise, adjust or otherwise conclude any proceedings to which it is
a party.


 


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


 


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SECTION 6.4.                     Waiver of
Defaults and Events of Default. 
Subject to Sections 6.2, 6.7 and 8.2 hereof, the Holders of a majority
in principal amount of the Senior Notes then outstanding have the right to
waive any existing or future Default or Event of Default or compliance with any
provision of this Indenture or the Senior Notes. Upon any such waiver, such
Default shall cease to exist, and any Event of Default arising therefrom shall
be deemed to have been cured for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other Default or Event of Default or
impair any right consequent thereto except as specifically set forth therein.


 


SECTION 6.5.                     Control by
Majority.  The Holders of a majority
in principal amount of the Senior Notes then outstanding may direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on the Trustee by this
Indenture. The Trustee, however, may refuse to follow any direction that
conflicts with law, this Indenture or the Collateral Documents or that the
Trustee determines may be unduly prejudicial to the rights of another
Noteholder not taking part in such direction, and the Trustee shall have the
right to decline to follow any such direction if the Trustee, being advised by
counsel, determines that the action so directed may not lawfully be taken or if
the Trustee in good faith shall determine that the proceedings so directed may
involve it in personal liability unless the Trustee has asked for and received
indemnification reasonably satisfactory to it against any loss, liability or
expense caused by its following such direction; provided that the
Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.


 


SECTION 6.6.                     Limitation
on Suits.  Subject to Section 6.7
below, a Noteholder may not institute any proceeding or pursue any remedy with
respect to this Indenture or the Senior Notes unless:


 


(1) the Holder gives to the Trustee written notice of a continuing
Event of Default;


 


(2) the Holders of at least 25% in aggregate principal amount of the
Senior Notes then outstanding make a written request to the Trustee to pursue
the remedy;


 


(3) such Holder or Holders offer, and if requested, provide to the
Trustee indemnity reasonably satisfactory to the Trustee against any loss,
liability or expense;


 


(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer and, if requested, the provision of
indemnity; and


 


(5) no direction inconsistent with such written request has been given
to the Trustee during such 60 day period by the Holders of a majority in
aggregate principal amount of the Senior Notes then outstanding.


 


A Noteholder may not use this Indenture to
prejudice the rights of another Noteholder or to obtain a preference or
priority over another Noteholder.


 


SECTION 6.7.                     Rights of
Holders to Receive Payment. 
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Senior Note to receive payment of


 


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principal of, or premium, if
any, and interest on the Senior Note on or after the respective due dates
expressed in the Senior Note, or to bring suit for the enforcement of any such
payment on or after such respective dates, is absolute and unconditional and
shall not be impaired or affected without the consent of the Holder.


 


SECTION 6.8.                     Collection
Suit by Trustee.  If an Event of
Default in payment of principal, premium or interest specified in Section
6.1(1) or (2) hereof occurs and is continuing, the Trustee may recover judgment
in its own name and as trustee of an express trust against the Issuers or the
Guarantors (or any other obligor on the Senior Notes) for the whole amount of
unpaid principal and accrued interest remaining unpaid, together with interest
on overdue principal and, to the extent that payment of such interest is
lawful, interest on overdue installments of interest, in each case at the rate
then borne by the Senior Notes (after giving effect to Section 4.1), and such
further amounts as shall be sufficient to cover the costs and expenses of
collection, including the compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, including all sums due and owing to the Trustee
pursuant to the Indenture including Section 7.7.


 


SECTION 6.9.                     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 the compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel) and the Noteholders allowed in any judicial proceedings
relative to the Issuers or the Guarantors (or any other obligor upon the Senior
Notes), their respective creditors or property and shall be entitled and
empowered to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same after deduction of
its reasonable charges and expenses to the extent that any such charges and
expenses are not paid out of the estate in any such proceedings and any
custodian in any such judicial proceeding is hereby authorized by each
Noteholder to make such payments to the Trustee, and in the event that the
Trustee shall consent to the making of such payments directly to the
Noteholders, to pay to the Trustee any amount due to it for the compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel,
and any other amounts due the Trustee under the Indenture, including without
limitation Section 7.7 hereof. Nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to or accept or adopt on behalf
of any Noteholder any plan or reorganization, arrangement, adjustment or
composition affecting the Senior Notes or the rights of any Holder thereof, or
to authorize the Trustee to vote in respect of the claim of any Noteholder in
any such proceedings.


 


SECTION 6.10.               Priorities.  Subject to the Collateral Documents, if the
Trustee collects any money pursuant to this Article 6, it shall pay out the
money in the following order:


 


FIRST: 
to the Trustee, its agents and counsel for amounts due under the
Indenture, including without limitation, Section 7.7 hereof;


 


SECOND: 
to Noteholders for amounts due and unpaid on the Senior Notes for
principal, premium, if any, and interest as to each, ratably, without
preference or priority of any kind, according to the amounts due and payable on
the Senior Notes; and


 


55

















 


THIRD: 
to the Issuers or, to the extent the Trustee collects any amount
directly from any Guarantor, to such Guarantor.


 


The Trustee may fix a record date and payment
date for any payment to Noteholders pursuant to this Section 6.10. The Trustee
shall give the Issuers prior notice of any such record date and payment date; provided,
however, that the failure to give any such notice shall not affect the
establishment of such record date or payment date or any payment to Noteholders
pursuant to this Section 6.10.


 


SECTION 6.11.               Undertaking for
Costs.  In any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as Trustee, a court 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
Section 6.7 hereof or a suit by Holders of more than 10% in principal amount of
the Senior Notes then outstanding.


 


SECTION 6.12.               Restoration of
Rights and Remedies.  If the Trustee
or any Holder has instituted any proceeding to enforce any right or remedy
under this Indenture and such proceeding has been discontinued or abandoned for
any reason, or has been determined adversely to the Trustee or to such Holder,
then and in every case, subject to any determination in such proceeding, the
Issuers, any Guarantor, the Trustee and the Holders shall be restored severally
and respectively to their former positions hereunder and thereafter all rights
and remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.


 


SECTION 6.13.               Delay or Omission
Not Waiver.  No delay or omission of
the Trustee or of any Holder to exercise any right or remedy accruing upon any
Event of Default shall impair any such right or remedy or constitute a waiver
of any such Event of Default or an acquiescence therein. Every right and remedy
given by this Article Six or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders, as the case may be.


 


ARTICLE 7


 


Trustee


 


SECTION 7.1.                     Duties of
Trustee.  (a)   If an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture and any supplemental indenture (including providing for
Guarantees of the Senior Notes and any supplemental indenture required pursuant
to Section 4.13 hereof) and use the same degree of care and skill in their
exercise as a prudent person would exercise or use under the same circumstances
in the conduct of such person’s own affairs.


 


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


 


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(1) The Trustee need perform only those
duties that are specifically set forth in this Indenture (including any
supplemental indenture) and the Collateral Documents and those actions that are
reasonably necessary for the performance of the specified duties and no others
and no implied covenants or obligations shall be read into this Indenture or
the Collateral Documents against the Trustee.


 


(2) In the absence of bad faith on its part,
the Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this Indenture
but, in the case of any such certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture and the Collateral Documents (but
need not confirm or investigate the accuracy of mathematical calculations or
other facts stated therein).


 


(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:


 


(1) This paragraph does not limit the effect
of paragraph (b) of this Section 7.1.


 


(2) In the absence of bad faith on its part,
the Trustee shall not be liable for any error of judgment made in good faith by
a Responsible Officer, unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts.


 


(3) The Trustee shall not be liable with
respect to any action it takes or omits to take in good faith in accordance
with a direction received by it pursuant to Sections 6.2 and 6.5 hereof.


 


(d)  No provision of
this Indenture shall require the Trustee to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its rights
or powers if it shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity satisfactory to it against such risk or
liability is not reasonably assured to it.


 


(e)  Whether or not
therein expressly so provided, paragraphs (a), (b), (c), (d), (f) and (g) of
this Section 7.1 shall govern every provision of this Indenture that in any way
relates to the Trustee or any Agent.


 


(f)  The Trustee may
refuse to perform any duty or exercise any right or power unless it receives
indemnity satisfactory to it against any loss, liability, expense or fee.


 


(g)  The Trustee
shall not be liable for interest on any money received by it except as the
Trustee may agree in writing with the Issuers or any Guarantor. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by the law.


 


SECTION 7.2.                     Rights of
Trustee.  Subject to Section 7.1
hereof:


 


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(1) The Trustee may conclusively rely on and
shall be protected in acting or refraining from acting upon any document
reasonably believed by it to be genuine and to have been signed or presented by
the proper person (whether in original or facsimile form). The Trustee need not
investigate any fact or matter stated in the document;


 


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


 


(3) 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 that the
Trustee’s conduct does not constitute negligence or bad faith;


 


(4) The Trustee may consult with counsel of
its selection, and the advice or opinion of such counsel as to matters of law
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;


 


(5) Before the Trustee acts or refrains from
acting, it may require an Officer’s Certificate or an Opinion of Counsel, or
both;


 


(6) The Trustee shall not be liable for any
action taken, suffered, or omitted to be taken by it in good faith and
reasonably believed by it to be authorized or within the discretion or rights
or powers conferred upon it by this Indenture;


 


(7) The Trustee shall not be deemed to have
notice of any Default or Event of Default unless a Responsible Officer of the
Trustee has actual knowledge thereof or unless written notice of any event
which is in fact such a Default is received by the Trustee at the Corporate
Trust Office of the Trustee, and such notice references the Senior Notes and
this Indenture;


 


(8) The rights, privileges, protections,
immunities and benefits given to the Trustee, including, without limitation,
its rights to be indemnified, are extended to, and shall be enforceable by, the
Trustee and the Collateral Agent in each of its capacities hereunder and under
the Collateral Documents, and each agent, custodian and other Person employed
to act hereunder;


 


(9) The Trustee may request that each Issuer
deliver an Officers’ Certificate setting forth the names of individuals and/or
titles of officers authorized at such time to take specified actions pursuant
to this Indenture, which Officers’ Certificate may be signed by any person
authorized to sign an Officers’ Certificate, including any person specified as
so authorized in any such certificate previously delivered and not superseded;


 


(10) 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 reasonably
satisfactory to the Trustee against the costs, expenses and liabilities which
might be incurred by it in compliance with such request or direction; and


 


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(11) In no event shall the Trustee be
responsible or liable for special, indirect, or consequential loss or damage of
any kind whatsoever (including, but not limited to, loss of profit)
irrespective of whether the Trustee has been advised of the likelihood of such
loss or damage and regardless of the form of action.


 


SECTION 7.3.                     Individual
Rights of Trustee.  The Trustee in
its individual or any other capacity may become the owner or pledgee of Senior
Notes and may make loans to, accept deposits from, perform services for or
otherwise deal with the Issuers or any Guarantor, or any Affiliates thereof,
with the same rights it would have if it were not Trustee. Any Agent may do the
same with like rights. The Trustee, however, shall be subject to Sections 7.10
and 7.11 hereof.


 


SECTION 7.4.                     Trustee’s
Disclaimer.  The Trustee makes no
representation as to the validity or adequacy of this Indenture, the Collateral
Documents, the Senior Notes or any Guarantee, and it shall not be responsible
for any statement in the Senior Notes or any document used in connection with
the sale of the Senior Notes other than its certificate of authentication.


 


SECTION 7.5.                     Notice of
Defaults.  If a Default or Event of
Default occurs and is continuing and if it is known to the Trustee, the Trustee
shall mail to each Noteholder notice of the Default or Event of Default within
90 days after it occurs. Except in the case of a Default or Event of Default in
payment of principal or premium, if any, or interest on the Senior Notes, or
that resulted from the failure of the Issuers to comply with Section 5.1, the
Trustee may withhold the notice if and so long as a committee of its
Responsible Officers in good faith determines it to be in the best interests of
the holders of the Senior Notes to do so.


 


SECTION 7.6.                     Reports by
Trustee to Holders.  If required by
TIA Section 313(a), within 60 days after March 15 of any year, commencing the
March 15 following the date of this Indenture, the Trustee shall mail to each
Noteholder a brief report dated as of such March 15 that complies with TIA
Section 313(a); provided that no such report need be transmitted if no
such events listed in TIA Section 313(a) have occurred within such period. The
Trustee also shall comply with TIA Section 313(b)(2). The Trustee shall also
transmit by mail all reports as required by TIA Section 313(c) and TIA Section
313(d).


 


A copy of each report at the time of its
mailing to Noteholders shall be filed with the SEC and each stock exchange on
which the Senior Notes are listed. The Issuers shall promptly notify the
Trustee when the Senior Notes are listed on, or delisted from, any stock
exchange and the Trustee shall comply with TIA Section 313(d).


 


SECTION 7.7.                     Compensation
and Indemnity.  The Issuers and the
Guarantors (on a joint and several basis) shall pay to the Trustee from time to
time such compensation as shall be agreed in writing between the Issuers and
the Trustee (or in the absence of such an agreement, reasonable compensation)
for its services hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust). The Issuers and the Guarantors (on a joint and several basis) shall
reimburse the Trustee upon request for all reasonable disbursements, expenses
and advances incurred or made by it in connection with its duties under this
Indenture, including the reasonable compensation, disbursements and expenses of
the Trustee’s agents and counsel.


 


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The Issuers and the Guarantors (on a joint
and several basis) shall indemnify each of the Trustee and any predecessor
Trustee for, and hold them harmless against, any and all loss, damage, claim,
liability, expense (including but not limited to reasonable attorneys’ fees and
expenses) or taxes (other than taxes based on the income of the Trustee or
resulting from any gross receipts taxes or franchise taxes of the Trustee)
incurred by it solely in connection with the acceptance or performance of its
duties under this Indenture including the costs and expenses of defending
itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder (including, without
limitation, settlement costs). The Trustee shall notify the Issuers and the
Guarantors in writing promptly of any claim asserted against the Trustee of
which a Responsible Officer has received written notice for which it may seek
indemnity. However, the failure by the Trustee to so notify the Issuers and the
Guarantors shall not relieve the Issuers or the Guarantors of their obligations
hereunder to the extent no material prejudice resulted from such failure to so
notify.


 


Notwithstanding the foregoing, the Issuers
and the Guarantors need not reimburse the Trustee or any predecessor Trustee
for any expense or indemnify it against any loss or liability incurred by the
Trustee through their own negligence or willful misconduct. To secure the
payment obligations of the Issuers and the Guarantors in this Indenture, including
without limitation, Sections 7.7 and 9.5, the Trustee and any predecessor
Trustee shall have a Lien prior to the Senior Notes on all money or property
held or collected by the Trustee in its capacity as such, except such money or
property held in trust to pay principal of and interest on particular Senior
Notes. The obligations of the Issuers and the Guarantors under this Section 7.7
to compensate and indemnify the Trustee and each predecessor Trustee and to pay
or reimburse the Trustee and each predecessor Trustee for expenses,
disbursements and advances shall be joint and several liabilities of the
Issuers and each of the Guarantors and shall survive the satisfaction and
discharge of this Indenture, including the termination or rejection hereof in any
bankruptcy proceeding to the extent permitted by law.


 


When the Trustee incurs expenses or renders
services after an Event of Default specified in Section 6.1(7) or (8) hereof
occurs, the expenses and the compensation for the services are intended to constitute
expenses of administration under any Bankruptcy Law.


 


SECTION 7.8.                     Replacement
of Trustee.  The Trustee may resign
by so notifying the Issuers and the Guarantors in writing, such resignation to
become effective upon the appointment of a successor Trustee. The Holders of a
majority in principal amount of the outstanding Senior Notes may remove the
Trustee by notifying the removed Trustee in writing and may appoint a successor
Trustee with the Issuers’ written consent which consent shall not be unreasonably
withheld. The Issuers may remove the Trustee at their election if:


 


(1) the Trustee fails to comply with Section 7.10 hereof;


 


(2) the Trustee is adjudged a bankrupt or an insolvent;


 


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


 


(4) the Trustee otherwise becomes incapable of acting.


 


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If the Trustee resigns or is removed or if a
vacancy exists in the office of Trustee for any reason, the Issuers shall promptly
appoint a successor Trustee.


 


If a successor Trustee does not take office
within 60 days after the retiring Trustee resigns or is removed, the retiring
Trustee (at the expense of the Issuers), the Issuers or the Holders of at least
25% in principal amount of the outstanding Senior Notes may petition any court
of competent jurisdiction at the expense of the Issuers and Guarantors, in the
case of the retiring Trustee, for the appointment of a successor Trustee.


 


If the Trustee fails to comply with Section
7.10 hereof, any Noteholder may petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor Trustee.


 


A successor Trustee shall deliver a written
acceptance of its appointment to the retiring Trustee and to the Issuers.
Immediately following such delivery, the retiring Trustee shall, subject to its
rights under Section 7.7 hereof, transfer all property held by it as Trustee to
the successor Trustee, the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the rights, powers
and duties of the Trustee under this Indenture. A successor Trustee shall mail
notice of its succession to each Noteholder. Notwithstanding replacement of the
Trustee pursuant to this Section 7.8, the Issuers’ obligations under Section
7.7 hereof shall continue for the benefit of the retiring Trustee.


 


SECTION 7.9.                     Successor
Trustee by Consolidation, Merger or Conversion.  If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust assets to, another
corporation or national banking association, subject to Section 7.10 hereof,
the successor corporation or national banking association without any further
act shall be the successor Trustee.


 


SECTION 7.10.               Eligibility;
Disqualification.  This Indenture
shall always have a Trustee who satisfies the requirements of TIA Sections
310(a)(1) and (2) in every respect. The Trustee shall have a combined capital
and surplus of at least $50,000,000 as set forth in its most recent published
annual report of condition. The Trustee shall comply with TIA Section 310(b),
including the provision in Section 310(b)(1); provided that there shall
be excluded from the operation of TIA Section 310(b)(1) any indenture or
indentures under which other securities, or conflicts of interest or
participation in other securities, of the Issuers or the Guarantors are
outstanding if the requirements for exclusion set forth in TIA Section
310(b)(1) are met.


 


SECTION 7.11.               Preferential
Collection of Claims Against Issuers. 
The Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.


 


SECTION 7.12.               Paying Agents.  The Issuers shall cause each Paying Agent
other than the Trustee to execute and deliver to it and the Trustee an
instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section 7.12:


 


(A)                              that
it will hold all sums held by it as agent for the payment of principal of, or
premium, if any, or interest on, the Senior Notes (whether such


 


61

















 


sums have been
paid to it by the Issuers or by any obligor on the Senior Notes) in trust for
the benefit of Holders of the Senior Notes or the Trustee;


 


(B)                                that
it will at any time during the continuance of any Event of Default, upon
written request from the Trustee, deliver to the Trustee all sums so held in
trust by it together with a full accounting thereof; and


 


(C)                                that
it will give the Trustee written notice within three (3) Business Days of any
failure of the Issuers (or by any obligor on the Senior Notes) in the payment
of any installment of the principal of, premium, if any, or interest on, the
Senior Notes when the same shall be due and payable.


 


SECTION 7.13.               Co-Trustee and
Separate Trustees.  At any time or
times, for the purpose of meeting the legal requirements of any applicable
jurisdiction, the Issuers and the Trustee shall have power to appoint, and,
upon the written request of the Trustee or of the Holders of at least 33% in
principal amount of the Senior Notes then outstanding, the Issuers shall for such
purpose join with the Trustee in the execution and delivery of all instruments
and agreements necessary or proper to appoint, one or more Persons approved by
the Trustee either to act as co-trustee, jointly with the Trustee, or to act as
separate trustee, in either case with such powers as may be provided in the
instrument of appointment, and to vest in such Person or Persons, in the
capacity aforesaid, and for the benefit of the Holders, any property, title,
right or power deemed necessary or desirable, subject to the other provisions
of this Section. If the Issuers do not join in such appointment within 15 days
after the receipt of a request so to do, or if an Event of Default shall have
occurred and be continuing, the Trustee alone shall have power to make such
appointment.


 


Should any written instrument or instruments
from the Issuers be required by any co-trustee or separate trustee to more
fully confirm to such co-trustee or separate trustee such property, title,
right or power, any and all such instruments shall, on request, be executed,
acknowledged and delivered by the Issuers.


 


Every co-trustee or separate trustee shall,
to the extent permitted by law, but to such extent only, be appointed subject
to the following conditions:


 


(a)  the Senior Notes
shall be authenticated and delivered, and all rights, powers, duties and
obligations hereunder in respect of the custody of securities, cash and other
personal property held by, or required to be deposited or pledged with, the
Trustee hereunder, shall be exercised solely, by the Trustee;


 


(b)  the rights,
powers, duties and obligations hereby conferred or imposed upon the Trustee in
respect of any property covered by such appointment shall be conferred or
imposed upon and exercised or performed either by the Trustee or by the Trustee
and such co-trustee or separate trustee jointly, as shall be provided in the
instrument appointing such co-trustee or separate trustee, except to the extent
that under any law of any jurisdiction in which any particular act is to be
performed, the Trustee shall be incompetent or unqualified to perform such act,
in which event such rights, powers, duties and obligations shall be exercised
and performed singly by such co-trustee or separate trustee;


 


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(c)  the Trustee at
any time, by an instrument in writing executed by it, with the concurrence of
the Issuers, may accept the resignation of or remove any co-trustee or separate
trustee appointed under this Section, and, if an Event of Default shall have
occurred and be continuing, the Trustee shall have power to accept the
resignation of, or remove, any such co-trustee or separate trustee without the
concurrence of the Issuers. Upon the written request of the Trustee, the Issuers
shall join with the Trustee in the execution and delivery of all instruments
and agreements necessary or proper to effectuate such resignation or removal. A
successor to any co-trustee or separate trustee so resigned or removed may be
appointed in the manner provided in this Section;


 


(d)  no co-trustee or
separate trustee hereunder shall be personally liable by reason of any act or
omission of the Trustee, or any other such trustee hereunder, and the Trustee
shall not be personally liable by reason of any act or omission of any such
co-trustee or separate trustee appointed by it with due care;


 


(e)  any act of
Holders delivered to the Trustee shall be deemed to have been delivered to each
such co-trustee and separate trustee;


 


(f)  any separate
trustee or co-trustee may at any time appoint the Trustee as its agent or
attorney-in-fact with full power and authority, to the extent not prohibited by
law, to do any lawful act under or in respect of this Indenture on its behalf
and in its name; and


 


(g)  if any separate
trustee or co-trustee shall die, become incapable of acting, resign or be
removed, all of its estates, properties, rights, remedies and trusts shall vest
in and be exercised by the Trustee, to the extent permitted by law, without the
appointment of a new successor trustee.


 


ARTICLE 8


 


Amendments,
Supplements and Waivers


 


SECTION 8.1.                     Without
Consent of Holders.  The Issuers
and/or one or more Guarantors and the Trustee may modify, waive, amend or
supplement this Indenture, the Senior Notes, the Guarantees or the Collateral
Documents without notice to or consent of any Noteholder:


 


(1) to comply with Section 5.1 hereof;


 


(2) to provide for uncertificated Senior
Notes in addition to or in place of certificated Senior Notes;


 


(3) to comply with any requirements of the
SEC under the TIA;


 


(4) to cure any ambiguity, defect or
inconsistency, or to make any other change that does not adversely affect the
rights of any Noteholder;


 


(5) to evidence and provide for the
acceptance of appointment hereunder by a successor Trustee with respect to the
Senior Notes;


 


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(6) to enter into additional or supplemental
Collateral Documents consistent with the terms hereof;


 


(7) to adjust the aggregate principal amount
of Senior Notes permitted to be issued pursuant to this Indenture so that the
aggregate principal amount of Senior Notes permitted to be issued pursuant to
this Indenture are as provided in the Plan of Reorganization;


 


(8) to reflect the terms of any agreements
with creditors of the Issuers and their respective Subsidiaries entered into
pursuant to the Plan of Reorganization or otherwise approved by the Bankruptcy
Court in the Cases, or to otherwise comply with the terms of the Plan of
Reorganization;


 


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


 


(10)             to make any change
that would provide any additional rights or benefits to the Holders of the
Senior Notes (including providing for Guarantees of the Senior Notes and any
supplemental indenture required pursuant to Section 4.13 hereof) or that does
not adversely affect the legal rights under this Indenture of any such Holder;
or


 


(11)             to add any additional
Events of Default.


 


The Trustee is hereby authorized to join with
the Issuers and the Guarantors, if any, in the execution of any modification,
waiver, amendment or supplement to this Indenture, the Senior Notes, the
Guarantees or the Collateral Documents authorized or permitted by the terms of
this Indenture and to make any further appropriate agreements and stipulations
which may be therein contained, but the Trustee shall not be obligated to enter
into any such modification, waiver, amendment or supplement to this Indenture,
the Senior Notes, the Guarantees or the Collateral Documents which adversely
affects its own rights, duties or immunities under this Indenture.


 


SECTION 8.2.                     With
Consent of Holders.  The Issuers
and/or one or more Guarantors and the Trustee may modify, amend, waive or
supplement this Indenture, the Senior Notes, the Guarantees or the Collateral
Documents (subject to any amendment provisions contained therein) with the
written consent of the Holders of not less than a majority in aggregate principal
amount of outstanding Senior Notes. The Holders of not less than a majority in
aggregate principal amount of outstanding Senior Notes may waive compliance in
a particular instance by the Issuers with any provision of this Indenture or
the Senior Notes. Subject to Section 8.4, without the consent of each
Noteholder affected, however, an amendment, supplement or waiver, including a
waiver pursuant to Section 6.4, may not:


 


(1) reduce the amount of Senior Notes whose
Holders must consent to an amendment, modification, supplement or waiver to
this Indenture or the Senior Notes;


 


(2) reduce the rate of or change the time for
payment of interest on any Senior Note;


 


(3) reduce the principal of or premium on or
change the stated maturity of any Senior Note;


 


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(4) make any Senior Note payable in money
other than that stated in the Senior Note or change the place of payment from
New York, New York;


 


(5) change the amount or time of any payment
required by the Senior Notes;


 


(6) waive a default in the payment of the
principal of, or interest on, or redemption payment with respect to any Senior
Note;


 


(7) subordinate in right of payment, or
otherwise subordinate, the Senior Notes or the Guarantees to another Indebtedness
or obligation of the Issuers or the Guarantors;


 


(8) take any other action otherwise expressly
prohibited by this Indenture to be taken without the consent of each Holder
affected thereby;


 


(9) release all or substantially all of the
Collateral from the Lien of this Indenture and the Collateral Documents (other
than pursuant to an Asset Sale in compliance with Section 4.8 hereof), or upon
payment in full of all Obligations of the Issuers hereunder and under the
Senior Notes; or


 


(10)             modify this Section
8.2, Section 6.4 or 6.7.


 


After a modification, amendment, supplement
or waiver under this Section 8.2 becomes effective, the Issuers shall mail to
the Holders a notice briefly describing the modification, amendment, supplement
or waiver. Any failure of the Issuers to mail such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of any
such modification, amendment, supplement or waiver.


 


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


 


SECTION 8.3.                     Compliance
with Trust Indenture Act.  Every
amendment to or supplement of this Indenture or the Senior Notes shall comply
with the TIA as then in effect.


 


SECTION 8.4.                     Revocation
and Effect of Consents.  Until a
modification, amendment, supplement, waiver or other action becomes effective,
a consent to it by a Holder of a Senior Note is a continuing consent conclusive
and binding upon such Holder and every subsequent Holder of the same Senior
Note or portion thereof, and of any Senior Note issued upon the transfer
thereof or in exchange therefor or in place thereof, even if notation of the
consent is not made on any such Senior Note. Any such Holder or subsequent
Holder, however, may revoke the consent as to his Senior Note or portion of a
Senior Note, if the Trustee receives the notice of revocation before the date
the modification, amendment, supplement, waiver or other action becomes
effective. Notwithstanding the foregoing, nothing in this paragraph shall
impair the right of any Holder under TIA Section 316(b).


 


The Issuers may, but shall not be obligated
to, fix a record date for the purpose of determining the Holders entitled to
consent to any modification, amendment, supplement, or


 


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waiver. If a record date is
fixed, then, notwithstanding the preceding paragraph, those Persons who were
Holders at such record date (or their duly designated proxies), and only such
Persons, shall be entitled to consent to such modification, amendment,
supplement, or waiver or to revoke any consent previously given, whether or not
such Persons continue to be Holders after such record date. No such consent
shall be valid or effective for more than 90 days after such record date unless
the consent of the requisite number of Holders has been obtained.


 


After a modification, amendment, supplement,
waiver or other action becomes effective, it shall bind every Holder and every
subsequent Holder.


 


SECTION 8.5.                     Notation on
or Exchange of Senior Notes.  If a
modification, amendment, supplement or waiver changes the terms of a Senior
Note, the Trustee may request the Holder of the Senior Note to deliver it to
the Trustee. In such case, the Trustee shall place an appropriate notation on
the Senior Note about the changed terms and return it to the Holder.
Alternatively, if the Issuers or the Trustee so determines, the Issuers in
exchange for the Senior Note shall issue and the Trustee shall authenticate a
new security that reflects the changed terms. Failure to make the appropriate
notation or issue a new Senior Note shall not affect the validity and effect of
such modification, amendment, supplement or waiver.


 


SECTION 8.6.                     Trustee to
Sign Amendments, etc.  The Trustee
shall sign any modification, amendment, supplement or waiver authorized
pursuant to this Article 8 if the modification, amendment, supplement or waiver
does not adversely affect the rights, duties, liabilities or immunities of the
Trustee. If it does, the Trustee may, but need not, sign it. In signing or
refusing to sign such modification, amendment, supplement or waiver, the
Trustee shall be provided with and, subject to Section 7.1 hereof, shall be
fully protected in relying upon an Officers’ Certificate and an Opinion of
Counsel stating that such modification, amendment, supplement or waiver is
authorized or permitted by this Indenture and such supplemental indenture
constitutes the legal, valid and binding obligation of the Issuers and the
Guarantors enforceable against each of them in accordance with its terms
(subject to customary exceptions). Neither Issuer nor any Guarantor may sign a
modification, amendment or supplement until the Board of Directors of such
Issuer or such Guarantor, as appropriate, approves it.


 


ARTICLE 9


 


Discharge Of
Indenture; Defeasance


 


SECTION 9.1.                     Discharge
of Indenture.  The Issuers and the
Guarantors, if any, may terminate their obligations under the Senior Notes, the
Guarantees, if any, and this Indenture, except the obligations referred to in
the last paragraph of this Section 9.1, if there shall have been cancelled by
the Trustee or delivered to the Trustee for cancellation all Senior Notes
theretofore authenticated and delivered (other than any Senior Notes that are
asserted to have been destroyed, lost or stolen and that shall have been
replaced as provided in Section 2.7 hereof) and the Issuers have paid all sums
payable by them hereunder or deposited all required sums with the Trustee.


 


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After such delivery the Trustee upon request
shall acknowledge in writing the discharge of the Issuers’ and the Guarantors’
obligations under the Senior Notes, the Guarantees and this Indenture, except
for those surviving obligations specified below.


 


Notwithstanding the satisfaction and
discharge of this Indenture, the obligations of the Issuers in Sections 2.7,
7.7, 9.5, 9.6 and 9.8 hereof shall survive such satisfaction and discharge.


 


SECTION 9.2.                     Legal
Defeasance.  The Issuers may at
their option, by Board Resolutions, be discharged from their obligations with
respect to the Senior Notes and the Guarantors, if any, discharged from their
obligations under the Guarantees, if any, on the date the conditions set forth
in Section 9.4 below are satisfied (hereinafter, “Legal Defeasance”). For this
purpose, such Legal Defeasance means that the Issuers shall be deemed to have paid
and discharged the entire Indebtedness represented by the Senior Notes and to
have satisfied all their other obligations under such Senior Notes and this
Indenture insofar as such Senior Notes are concerned (and the Trustee, at the
expense of the Issuers, shall, subject to Section 9.6 hereof, execute proper
instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (A) the rights of
Holders of outstanding Senior Notes to receive solely from the trust funds
described in Section 9.4 hereof and as more fully set forth in such Section,
payments in respect of the principal of, premium, if any, and interest on such
Senior Notes when such payments are due, (B) the Issuers’ obligations with
respect to such Senior Notes under Sections 2.3, 2.4, 2.5, 2.6, 2.7, 2.8 and
4.20 hereof, (C) the rights, powers, trusts, duties, and immunities of the
Trustee hereunder (including claims of, or payments to, the Trustee under or
pursuant to Section 7.7 hereof) and (D) this Article 9. Subject to compliance
with this Article 9, the Issuers may exercise their option under this Section
9.2 with respect to the Senior Notes notwithstanding the prior exercise of
their option under Section 9.3 below with respect to the Senior Notes.


 


SECTION 9.3.                     Covenant
Defeasance.  At the option of the
Issuers, pursuant to each Issuer’s Board Resolution, the Issuers and the
Guarantors, if any, shall be released from their respective obligations under
Sections 4.2 through 4.4 hereof, inclusive, Sections 4.6 through 4.17 hereof,
inclusive, and Section 4.23 and clauses (iii) and (iv) of Section 5.1 hereof
with respect to the outstanding Senior Notes on and after the date the
conditions set forth in Section 9.4 hereof are satisfied (hereinafter,
“Covenant Defeasance”) and the Senior Notes shall thereafter be deemed to not
be outstanding for purposes of any direction, waiver, consent, declaration or
act of the Holders (and the consequences thereof) in connection with such
covenants but shall continue to be outstanding for all other purposes
hereunder. For this purpose, such Covenant Defeasance means that the Issuers
and the Guarantors, if any, may omit to comply with and shall have no liability
in respect of any term, condition or limitation set forth in any such specified
Section or portion thereof, whether directly or indirectly by reason of any
reference elsewhere herein to any such specified Section or portion thereof
(including any such reference in Section 1.1 hereof) or by reason of any
reference in any such specified Section or portion thereof to any other
provision herein or in any other document, but the remainder of this Indenture
and the Senior Notes shall be unaffected thereby.


 


SECTION 9.4.                     Conditions
to Legal Defeasance or Covenant Defeasance.  The following shall be the conditions to application of Section
9.2 or Section 9.3 hereof to the outstanding Senior Notes:


 


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(1) the Issuers shall irrevocably have
deposited or caused to be deposited with the Trustee (or another trustee
satisfying the requirements of Section 7.10 hereof who shall agree to comply
with the provisions of this Article 9 applicable to it) as funds in trust for
the purpose of making the following payments, specifically pledged as security
for, and dedicated solely to, the benefit of the Holders of the Senior Notes,
(A) money in an amount, or (B) U.S. Government Obligations which through the
scheduled payment of principal and interest in respect thereof in accordance
with their terms will provide, not later than the due date of any payment,
money in an amount, or (C) a combination thereof, sufficient, in the opinion of
a nationally-recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and discharge,
and which shall be applied by the Trustee (or other qualifying trustee) to pay
and discharge, the principal of, premium, if any, and accrued interest on the
outstanding Senior Notes at the maturity date of such principal, premium, if
any, or interest, or on dates for payment and redemption of such principal,
premium, if any, and interest selected in accordance with the terms of this
Indenture and of the Senior Notes;


 


(2) no Event of Default or Default with
respect to the Senior Notes shall have occurred and be continuing on the date
of such deposit, or shall have occurred and be continuing at any time during
the period ending on the 91st day after the date of such deposit or, if longer,
ending on the day following the expiration of the longest preference period
under any Bankruptcy Law applicable to the Issuers in respect of such deposit
(it being understood that this condition shall not be deemed satisfied until
the expiration of such period);


 


(3) such Legal Defeasance or Covenant
Defeasance shall not result in a breach or violation of, or constitute default
under any other agreement or instrument to which either of the Issuers is a
party or by which it is bound;


 


(4) the Issuers shall have delivered to the
Trustee an Opinion of Counsel stating that, as a result of such Legal
Defeasance or Covenant Defeasance, neither the trust nor the Trustee will be
required to register as an investment company under the Investment Company Act
of 1940, as amended;


 


(5) in the case of an election under Section
9.2 above, the Issuers shall have delivered to the Trustee an Opinion of
Counsel stating that (i) the Issuers have received from, or there has been
published by, the Internal Revenue Service a ruling to the effect that or (ii)
there has been a change in any applicable Federal income tax law with the
effect that, and such opinion shall confirm that, the Holders of the
outstanding Senior Notes or persons in their positions will not recognize
income, gain or loss for Federal income tax purposes solely as a result of such
Legal Defeasance and will be subject to Federal income tax on the same amounts,
in the same manner, including as a result of prepayment, and at the same times
as would have been the case if such Legal Defeasance had not occurred;


 


(6) in the case of an election under Section
9.3 hereof, the Issuers shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Holders of the outstanding Senior Notes will not
recognize income, gain or loss for Federal income tax purposes as a result of
such Covenant Defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been the case
if such Covenant Defeasance had not occurred;


 


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(7) the Issuers shall have delivered to the
Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that
(a) all conditions precedent provided for relating to either the Legal Defeasance
under Section 9.2 above or the Covenant Defeasance under Section 9.3 hereof (as
the case may be) have been complied with and (b) if any other Indebtedness of
either of the Issuers shall then be outstanding, such legal defeasance or
covenant defeasance will not violate the provisions of the agreements or
instruments evidencing such Indebtedness; and


 


(8) the Company shall have delivered to the
Trustee an Officers’ Certificate stating that the deposit under clause (1) was
not made by the Issuers with the intent of defeating, hindering, delaying or
defrauding any creditors of the Issuers or others.


 


SECTION 9.5.                     Deposited
Money and U.S. Government Obligations to Be Held in Trust; Other Miscellaneous
Provisions.  All money and U.S.
Government Obligations (including the proceeds thereof) deposited with the
Trustee pursuant to Section 9.4 hereof in respect of the outstanding Senior
Notes shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Senior Notes and this Indenture, to the payment, either
directly or through any Paying Agent as the Trustee may determine, to the
Holders of such Senior Notes, of all sums due and to become due thereon in
respect of principal, premium, if any, and accrued interest, but such money
need not be segregated from other funds except to the extent required by law.
The Trustee shall be under no duty to invest such money or U.S. Government
Obligations.


 


The Issuers and the Guarantors shall pay and
indemnify the Trustee against any tax, fee or other charge imposed on or
assessed against the U.S. Government Obligations deposited pursuant to Section
9.4 hereof or the principal, premium, if any, and interest received in respect
thereof other than any such tax, fee or other charge which by law is for the
account of the Holders of the outstanding Senior Notes.


 


Subject to Sections 7.1 and 7.2 hereof,
anything in this Article 9 to the contrary notwithstanding, the Trustee shall
deliver or pay to the Issuers from time to time upon Issuers’ Request any money
or U.S. Government Obligations held by it as provided in Section 9.4 hereof
which, in the opinion of a nationally-recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.


 


SECTION 9.6.                     Reinstatement.  If the Trustee or Paying Agent is unable to
apply any money or U.S. Government Obligations in accordance with Section 9.1,
9.2 or 9.3 hereof by reason of any legal proceeding or by reason of any order
or judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the obligations of the Issuers and any
Guarantor under this Indenture, the Senior Notes and the Guarantees, if any,
shall be revived and reinstated as though no deposit had occurred pursuant to
this Article 9 until such time as the Trustee or Paying Agent is permitted to
apply all such money or U.S. Government Obligations in accordance with Section
9.1 hereof; provided, however, that if the Issuers or any
Guarantors have made any payment of principal of, premium, if any, or accrued
interest on any Senior Notes because of the reinstatement of their obligations,
the Issuers or such Guarantors, as the case may be, shall be subrogated to the
rights of the Holders of such


 


69

















 


Senior Notes to receive such
payment from the money or U.S. Government Obligations held by the Trustee or
Paying Agent.


 


SECTION 9.7.                     Moneys Held
by Paying Agent.  In connection with
the satisfaction and discharge of this Indenture, all moneys then held by any
Paying Agent under the provisions of this Indenture shall, upon demand of the
Issuers, be paid to the Trustee, or if sufficient moneys have been deposited
pursuant to Section 9.4 hereof, to the Issuers (or, if such moneys had been
deposited by any Guarantors, to such Guarantors), and thereupon such Paying
Agent shall be released from all further liability with respect to such moneys.


 


SECTION 9.8.                     Moneys Held
by Trustee.  Any moneys deposited
with the Trustee or any Paying Agent or then held by the Issuers or any
Guarantors in trust for the payment of the principal of, premium, if any, or
interest on any Senior Note that are not applied but remain unclaimed by the
Holder of such Senior Note for two years after the date upon which the
principal of, or premium, if any, or interest on such Senior Note shall have
respectively become due and payable shall be repaid to the Issuers (or, if
appropriate, the Guarantors) upon Issuers’ Request, or if such moneys are then
held by the Issuers or any Guarantors in trust, such moneys shall be released
from such trust; and the Holder of such Senior Note entitled to receive such
payment shall thereafter, as an unsecured general creditor, look only to the
Issuers and the Guarantors, if any, for the payment thereof, and all liability
of the Trustee or such Paying Agent with respect to such trust money shall
thereupon cease; provided, however, that the Trustee or any such
Paying Agent, before being required to make any such repayment, may, at the
expense of the Issuers and the Guarantors, if any, either mail to each
Noteholder affected, at the address shown in the register of the Senior Notes
maintained by the Registrar pursuant to Section 2.3 hereof, or cause to be
published once a week for two successive weeks, in a newspaper published in the
English language, customarily published each Business Day and of general
circulation in the city of New York, New York, a notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less
than 30 days from the date of such mailing or publication, any unclaimed balance
of such moneys then remaining will be repaid to the Issuers. After payment to
the Issuers or the Guarantors, if any, or the release of any money held in
trust by the Issuers or any Guarantors, as the case may be, Noteholders
entitled to the money must look only to the Issuers and any Guarantors for
payment as general creditors unless applicable abandoned property law
designates another person.


 


SECTION 9.9.                     Senior Note
Collateral.  Upon the Issuers’
exercise under Section 9.1 hereof of the option applicable under either Section
9.2 or 9.3, the Collateral shall be released pursuant to Section 10.3 hereof.


 


ARTICLE 10


 


Collateral And
Security


 


SECTION 10.1.               Security.  The due and punctual payment of the
principal of, premium, if any, and interest on the Senior Notes when and as the
same shall be due and payable, whether on an Interest Payment Date, at
maturity, by acceleration, repurchase, redemption or otherwise, and interest on
the overdue principal of, premium, if any, and interest on the Senior Notes and
performance of all other obligations of the Issuers and the Guarantors to the
Holders of Senior


 


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Notes, the Trustee or the
Collateral Agent under this Indenture, the Senior Notes, the Guarantees and the
other Senior Notes Documents, according to the terms hereunder or thereunder,
shall be secured by the Collateral, as provided in the Collateral Documents
which the Issuers and the applicable parties have entered into simultaneously
with the execution of this Indenture for the benefit of the Holders of Senior
Notes. Each Holder of Senior Notes, by its acceptance thereof, consents and
agrees to the terms of the Collateral Documents (including, without limitation,
the provisions providing for foreclosure and release of Collateral) as the same
may be in effect or may be amended from time to time in accordance with its
terms and authorizes and directs the Collateral Agent to enter into the
Collateral Documents and to perform its obligations and exercise its rights
thereunder in accordance therewith. The Issuers and the Guarantors shall
deliver to the Collateral Agent copies of all documents executed pursuant to
this Indenture and the Collateral Documents and shall do or cause to be done
all such acts and things as may be necessary or proper, or as may be required
by the provisions of the Collateral Documents to assure and confirm to the
Collateral Agent the security interest in the Collateral contemplated hereby,
by the Collateral Documents or any part thereof, as from time to time
constituted, so as to render the same available for the security and benefit of
this Indenture and of the Senior Notes and the Guarantees secured hereby,
according to the intent and purposes herein expressed. The Issuers shall take,
or shall cause their Subsidiaries to take any and all actions reasonably
required to cause the Collateral Documents to create and maintain, as security
for the obligations of the Issuers hereunder, a valid and enforceable perfected
priority Lien in and on all the Collateral in accordance with the terms of the
Collateral Documents.


 


SECTION 10.2.               Certificates,
Opinions and Recording.  The Issuers
and the Guarantors will cause this Indenture, if necessary, the applicable
Collateral Documents, including any financing statements, all amendments or
supplements to each of the foregoing and any other similar security documents
as necessary, to be registered, recorded and filed and/or re-recorded, re-filed
and renewed in such manner and in such place or places, if any, as may be
required by law in order fully to preserve and protect the Lien securing the
obligations under the Senior Notes and the Guarantees of the Guarantors and to
effectuate and preserve the security of the Holders of Senior Notes and all
rights of the Collateral Agent.


 


The Issuers, the Guarantors and any other
obligor shall furnish to the Trustee:


 


(a)  Promptly after
the execution and delivery of this Indenture, and promptly after the execution
and delivery of any other instrument of further assurance or amendment, an
Opinion of Counsel in the United States (which may include one or more local
counsel opinions as to matters concerning the laws of affected jurisdictions)
(i) stating that this Indenture, the Senior Notes, the Collateral Documents and
such instruments of further assurance or amendment, if any, are valid, binding
and enforceable obligations of Holdings and its Subsidiaries which are
signatories to those agreements, subject to customary qualifications and
exceptions (and any other qualifications and exceptions reasonably acceptable
to the Collateral Agent), and (ii) either (A) stating that, subject to
customary assumptions and exclusions (and any other qualifications and
exceptions reasonably acceptable to the Collateral Agent), in the opinion of
such counsel, this Indenture and other applicable Collateral Documents or such
instruments of further assurance or amendment either (i) have been recorded,
registered and filed to the extent necessary to make effective the Lien
intended to be created by this Indenture and such Collateral Documents or
documents of further assurance (as the case may be) or (ii) are in proper form
to


 


71

















 


be recorded, registered and filed in the filing offices specified in
such opinion and upon such filing will make effective the Lien intended to be
created by this Indenture and such Collateral Documents, and reciting the
details of such action or referring to prior Opinions of Counsel in which such
details are given, and stating that, subject to customary assumptions and
exclusions (and any other qualifications and exceptions reasonably acceptable
to the Trustee), as to such Indenture and Collateral Documents and such other
instruments such recording, registering and filing will be the only recordings,
registrations and filings necessary to perfect or give constructive notice of
the Liens granted therein and that no re-recordings, re-registerings or
re-filings will be necessary to maintain such perfection or notice, and further
stating that all financing statements and continuation statements (as
applicable) have been executed and provisions for the filing thereof have been
made to the reasonable satisfaction of the Collateral Agent that are necessary
fully to preserve and protect the rights of the Holders of Senior Notes and the
Collateral Agent hereunder and under the Collateral Documents or (B) stating
that, subject to customary assumptions and exclusions (and any other
qualifications and exceptions reasonably acceptable to the Collateral Agent),
in the opinion of such counsel, no such action is necessary to make any Lien
created under the Indenture and/or any of the Collateral Documents effective as
intended by this Indenture and such Collateral Documents; and


 


(b)  Within 30 days
after each anniversary of the date of this Indenture, an Opinion of Counsel,
dated as of such date (which may include one or more local counsel opinions as
to matters concerning the laws of affected jurisdictions), either (i) stating
that, subject to customary assumptions and exclusions (and any other
qualifications and exceptions reasonably acceptable to the Collateral Agent),
in the opinion of such counsel, such action has been taken with respect to the
recording, registering, filing, re-recording, re-registering and re-filing of
this Indenture, the Collateral Documents and all supplemental indentures,
financing statements, continuation statements or other instruments of further
assurance as is necessary to maintain the Lien of this Indenture and the
Collateral Documents until the next Opinion of Counsel is required to be
rendered pursuant to this paragraph and reciting the details of such action or
referring to prior Opinions of Counsel in which such details are given, and
stating that all financing statements and continuation statements have been
executed and filed that are necessary fully to preserve and protect the rights
of the Holders and the Collateral Agent hereunder and under the Collateral
Documents or (ii) stating that, subject to customary assumptions and exclusions
(and any other qualifications and exceptions reasonably acceptable to the
Collateral Agent), in the opinion of such counsel, no such action is necessary
to maintain such Lien, until the next Opinion of Counsel is required to be
rendered pursuant to this paragraph.


 


(c)  The Issuers
shall furnish to the Collateral Agent the certificate or opinions with respect
to compliance with a condition or covenant provided for in this Indenture
(other than a certificate provided pursuant to TIA Section 314(a)(4)), as the
case may be, required by TIA Section 314(d). Such certificates or opinions will
be subject to the terms of TIA Section 314(e).


 


SECTION 10.3.               Release of
Collateral.  (a)  Subject to subsections (b), (c), (d), (e)
and (f) of this Section 10.3, Collateral may be released from the Lien and
security interest created by this Indenture and the Collateral Documents at any
time or from time to time upon the request of the Issuers pursuant to an
Officers’ Certificate from each Issuer certifying that all terms for release
and conditions precedent hereunder and under the applicable Collateral Document
have


 


72

















 


been met and specifying (A) the
identity of the Collateral to be released and (B) the provision of this
Indenture that authorizes such release. The Collateral Agent shall release (at
the sole cost and expense of the Issuers) (i) all Collateral that is
contributed, sold, leased, conveyed, transferred or otherwise disposed of, provided
such contribution, sale, lease, conveyance, transfer or other disposition is or
will be in accordance with the provisions of this Indenture, including, without
limitation, the requirement that the Asset Sale Proceeds, if any, from such
contribution, sale, lease, conveyance, transfer or other disposition are or
will be applied in accordance with this Indenture and that no Default or Event
of Default has occurred and is continuing or would occur immediately following
such release; (ii) Collateral which may be released with the consent of Holders
pursuant to Article 8 hereof; (iii) all Collateral (except as provided in
Article 9 hereof) upon discharge or defeasance of this Indenture in accordance
with Article 9 hereof; (iv) all Collateral upon the indefeasible payment in
full of all obligations of the Issuers with respect to the Senior Notes; and
(v) Collateral of a Guarantor whose Guarantee is released pursuant to Section
11.4 hereof. Upon receipt of such Officers’ Certificates, an Opinion of Counsel
and any other opinions or certificates required by this Indenture and the TIA,
the Trustee shall execute, deliver or acknowledge any necessary or proper
instruments of termination, satisfaction or release to evidence the release of
any Collateral permitted to be released pursuant to this Indenture and the
Collateral Documents.


 


(b)  No Collateral
shall be released from the Lien and security interest created by the Collateral
Documents pursuant to the provisions of the Collateral Documents unless there
shall have been delivered to the Collateral Agent the certificates required by
this Section 10.3.


 


(c)  The Collateral
Agent may release Collateral from the Lien and security interest created by
this Indenture and the Collateral Documents upon the sale or disposition of
Collateral pursuant to the Collateral Agent’s powers, rights and duties with
respect to remedies provided under any of the Collateral Documents.


 


(d)  The release of
any Collateral from the terms of this Indenture and the Collateral Documents
shall not be deemed to impair the security under this Indenture in
contravention of the provisions hereof if and to the extent the Collateral is
released pursuant to the terms hereof. To the extent applicable, the Issuers
shall cause TIA Section 313(b), relating to reports, and TIA Section 314(d),
relating to the release of property or securities from the Lien and security
interest of the Collateral Documents and relating to the substitution therefor
of any property or securities to be subjected to the Lien and security interest
of the Collateral Documents, to be complied with. Any certificate or opinion
required by TIA Section 314(d) may be made by an Officer of the Issuers except
in cases where TIA Section 314(d) requires that such certificate or opinion be
made by an independent Person, which Person shall be an independent engineer,
appraiser or other expert selected or approved by the Collateral Agent in the
exercise of reasonable care.


 


(e)  Notwithstanding
the foregoing, each Issuer and each Subsidiary, as the case may be, pursuant to
the terms of this Indenture and the Collateral Documents, may effect any
disposition of Collateral and such Collateral shall be released from the Lien
and security interest created by this Indenture and the Collateral Documents without
the delivery of any opinions or certificates upon any such release; provided
that (i) Section 4.10 is complied with and (ii) any property or assets acquired
with any proceeds of such disposition becomes subject to the Lien


 


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and security interest created by this Indenture and the Collateral
Documents; provided, further, that each Issuer shall deliver to
the Trustee and Collateral Agent, within 15 days after each of the six-month
periods ended April 15 and October 15 in each year, an Officers’ Certificate to
the effect that all releases of Collateral by either Issuer or any Subsidiary,
as the case may be, during the preceding six-month period were in accordance
with the provisions of the Collateral Documents and this Indenture and that all
proceeds therefrom were used by such Issuer or such Subsidiary as permitted
herein (or will be so used within the time permitted by this Indenture).


 


(f)  The fair value
of Collateral released from the Lien and security interest created by this
Indenture and the Collateral Documents pursuant to Section 10.3(e) hereof shall
not be considered in determining whether the aggregate fair value of Collateral
released from the Lien and security interest created by this Indenture and the
Collateral Documents in any calendar year exceeds the 10% threshold specified
in Section 314(d)(l) of the TIA; provided that the Issuers’ right to
rely on this sentence at any time is conditioned upon the Issuers having
furnished to the Trustee and Collateral Agent the certificates described in
Section 10.3(e) hereof that were required to be furnished to the Trustee and
Collateral Agent at or prior to such time.


 


SECTION 10.4.               Protection of the
Trust Estate.  Upon prior written
notice to the Issuers and the Guarantors and so long as an Event of Default
shall exist and be continuing, the Trustee shall have the power, subject to the
provisions of the Collateral Documents, (i) to institute and maintain such
suits and proceedings as it may deem expedient, to prevent any impairment of
the Collateral under any of the Collateral Documents; and (ii) to enforce the
obligations of the Issuers, the Guarantors or any Restricted Subsidiary under
this Indenture or the Collateral Documents, to institute and maintain such
suits and proceedings as may be expedient to prevent any impairment of the
Collateral under the Collateral Documents and in the profits, rents, revenues
and other income arising therefrom; including the power to institute and
maintain suits or proceedings to restrain the enforcement of or compliance with
any legislative or other governmental enactment, rule or order that may be
unconstitutional or otherwise invalid if the enforcement of, or compliance
with, such enactment, rule or order would impair any Collateral or be
prejudicial to the interests of the Holders of Senior Notes, the Trustee or the
Collateral Agent, to the extent permitted thereunder.


 


SECTION 10.5.               Certificates of
the Issuers.  The Issuers shall
furnish to the Trustee and Collateral Agent, prior to each proposed release of
Collateral pursuant to the Collateral Documents (i) all documents required by
TIA Section 314(d) and (ii) an Opinion of Counsel in the United States, which
opinion shall be subject to customary assumptions and exclusions, to the effect
that such accompanying documents constitute all documents required by TIA
Section 314(d). The Trustee may, to the extent permitted by Sections 7.1 and
7.2 hereof, accept as conclusive evidence of compliance with the foregoing provisions
the appropriate statements contained in such documents and such Opinion of
Counsel.


 


SECTION 10.6.               Certificates of
the Trustee.  In the event that the
Issuers wish to release Collateral in accordance with the Collateral Documents
and have delivered the certificates and documents required by the Collateral
Documents and Sections 10.3 and 10.5 hereof, the Trustee shall determine
whether it has received all documents required by TIA Section 314(d) in
connection with such release and, based on such determination and the Opinion
of Counsel


 


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delivered pursuant to Section
10.5(ii), shall deliver a certificate to the Collateral Agent, setting forth
such determination.


 


SECTION 10.7.               Authorization of
Actions to be Taken by the Collateral Agent Under the Collateral Documents.  Subject to the provisions of Sections 7.1
and 7.2 hereof and the Collateral Agreement, the Collateral Agent may, without
the consent of the Holders of Senior Notes, take all actions it deems necessary
or appropriate in order to (a) enforce any of the terms of the Collateral
Documents and (b) collect and receive any and all amounts payable in respect of
the Obligations of the Issuers hereunder. Subject to the Intercreditor
Agreement, the Collateral Agent shall have power to institute and maintain such
suits and proceedings as it may deem expedient to prevent any impairment of the
Collateral by any acts that may be unlawful or in violation of the Collateral
Documents or this Indenture, and such suits and proceedings as the Trustee may
deem expedient to preserve or protect its interests and the interests of the
Holders of Senior Notes in the Collateral (including power to institute and
maintain suits or proceedings to restrain the enforcement of or compliance with
any legislative or other governmental enactment, rule or order that may be
unconstitutional or otherwise invalid if the enforcement of, or compliance
with, such enactment, rule or order would impair the security interest
hereunder or be prejudicial to the interests of the Holders of Senior Notes or
of the Collateral Agent).


 


SECTION 10.8.               Authorization of
Receipt of Funds by the Trustee Under the Collateral Documents.  Subject to the Intercreditor Agreement, upon
an Event of Default and so long as such Event of Default continues, the
Collateral Agent may exercise in respect of the Collateral, in addition to the
other rights and remedies provided for herein, in the Collateral Documents or
otherwise available to it, all of the rights and remedies of a secured party
under the Uniform Commercial Code or other applicable law, and the Trustee may
also upon obtaining possession of the Collateral as set forth herein, without
notice to the Issuers, except as specified below, sell the Collateral or any
part thereof in one or more parcels at public or private sale, at any exchange,
broker’s board or at any of the Trustee’s offices or elsewhere, for cash, on
credit or for future delivery, and upon such other terms as the Trustee may
deem commercially reasonable. The Issuers acknowledge and agree that any such
private sale may result in prices and other terms less favorable to the seller
than if such a sale were a public sale. The Issuers agree that, to the extent
notice of sale shall be required by law, at least 10 days’ notice to the
Issuers of the time and place of any public sale or the time after which any
private sale is to be made shall constitute reasonable notification. The
Collateral Agent shall not be obligated to make any sale regardless of notice
of sale having been given. The Collateral Agent may adjourn any public or
private sale from time to time by announcement at the time and place fixed
therefor, and such sale may, without further notice, be made at the time and
place to which it was so adjourned.


 


Any cash that is Collateral held by the
Collateral Agent and all cash proceeds received by the Trustee in respect of
any sale of, collection from, or other realization upon all or any part of the
Collateral shall be applied (unless otherwise provided for in the Collateral
Documents) in accordance with Section 6.10 hereof, or as the Holders of the
Senior Notes shall direct pursuant to Section 6.5 hereof. Any surplus of such
cash or cash proceeds held by the Collateral Agent and remaining after payment
in full of all the obligations shall be paid over to the Issuers or to
whomsoever may be lawfully entitled to receive such surplus or as a court of
competent jurisdiction may direct.


 


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SECTION 10.9.               Termination of
Security Interest.  Upon the
indefeasible payment in full of all Obligations of the Issuers under this
Indenture and the Senior Notes, or upon Legal Defeasance or Covenant
Defeasance, the Trustee shall, at the request of the Issuers, deliver a
certificate to the Collateral Agent stating that such Obligations have been
paid in full, and instruct the Collateral Agent to release the Liens pursuant
to this Indenture and the Collateral Documents.


 


SECTION 10.10.           Cooperation of
Trustee.  In the event the Issuers
or any Guarantor pledges or grants to the Trustee a security interest in
additional Collateral, the Trustee shall cooperate with the Issuers or such
Guarantor in reasonably and promptly agreeing to the form of, and executing as
required, any instruments or documents necessary to make effective the security
interest in the Collateral to be so pledged. To the extent practicable, the
terms of any security agreement or other instrument or document necessitated by
any such pledge shall be comparable to the provisions of the existing relevant
Collateral Documents. Subject to, and in accordance with, the requirements of
this Article 10 and the terms of the Collateral Documents, in the event that
the Issuers or any Guarantor engages in any transaction pursuant to Section
10.3, the Trustee and the Collateral Agent, subject to the provisions of
Sections 10.3 and 10.5, shall cooperate with the Issuers or such Guarantor in
order to facilitate such transaction in accordance with any reasonable time schedule
proposed by the Issuers, including by delivering and releasing the Collateral
in a prompt and reasonable manner.


 


SECTION 10.11.           Agents Under
Collateral Documents.  Each Holder
hereby appoints and directs the Collateral Agent to be the agent for and
representative of the Holders with respect to the Collateral and the Collateral
Documents, subject to the Intercreditor Agreement.


 


ARTICLE 11


 


Guarantee of
Senior Notes


 


SECTION 11.1.               Guarantee.  Subject to the provisions of this Article
11, each Guarantor hereby jointly and severally unconditionally and irrevocably
guarantees to each Holder and to the Trustee, on behalf of the Holders, (i) the
due and punctual payment of the principal of, premium, if any, and interest on
each Senior Note, when and as the same shall become due and payable, whether at
maturity, by acceleration or otherwise, the due and punctual payment of
interest on the overdue principal of, and premium, if any, and interest on the
Senior Notes, to the extent lawful, and the due and punctual performance of all
other Obligations of the Issuers to the Holders or the Trustee all in
accordance with the terms of such Senior Note and this Indenture, and (ii) in
the case of any extension of time of payment or renewal of any Senior Notes or
any of such other Obligations, that the same will be promptly paid in full when
due or performed in accordance with the terms of the extension or renewal, at
stated maturity, by acceleration or otherwise. Each Guarantor, by execution of
the Guarantee, agrees that its obligations thereunder and hereunder shall be
absolute and unconditional, irrespective of, and shall be unaffected by, any
invalidity, irregularity or unenforceability of any such Senior Note or this
Indenture, any failure to enforce the provisions of any such Senior Note or
this Indenture, any waiver, modification or indulgence granted to the Issuers
with respect thereto by the Holder of such Senior Note or the Trustee, any
release of any Collateral, or any other circumstances which may otherwise constitute
a legal or equitable discharge of a surety or such Guarantor.


 


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Each Guarantor, by execution of the
Guarantee, waives diligence, presentment, demand of payment, filing of claims
with a court in the event of merger or bankruptcy of either Issuer, any right
to require a proceeding first against either Issuer, protest or notice with
respect to any such Senior Note or the Indebtedness evidenced thereby and all
demands whatsoever, and covenants that the Guarantee will not be discharged as
to any such Senior Note except by payment in full of the principal thereof,
premium if any, and interest thereon and as provided in Section 9.1 hereof. If
any Holder or the Trustee is required by any court or otherwise to return to
either Issuer or any Guarantor or any Custodian, trustee, liquidator or other
similar official acting in relation to either an Issuer or any Guarantor, any
amount paid by either an Issuer or any Guarantor to the Holder or Trustee, each
Guarantor’s Guarantee, to the extent therefor discharged, shall be reinstated
in full force and effect. Each Guarantor, by execution of the Guarantee,
further agrees that, as between such Guarantor, on the one hand, and the
Holders and the Trustee, on the other hand, (i) the maturity of the Obligations
guaranteed by the Guarantee may be accelerated as provided in Article 6 hereof
for the purposes of the Guarantee, notwithstanding any stay, injunction or
other prohibition preventing such acceleration in respect of the Obligations
guaranteed thereby, and (ii) in the event of any declaration of acceleration of
such Obligations as provided in Article 6 hereof, such Obligations (whether or
not due and payable) shall forthwith become due and payable by each Guarantor for
the purpose of the Guarantee. In addition, without limiting the foregoing
provisions, upon the effectiveness of an acceleration under Article 6 hereof,
the Trustee shall promptly make a demand for payment on the Senior Notes under
any Guarantee provided for in this Article 11 and not discharged. Failure to
make such demand shall not affect the validity or enforceability of the
Guarantee upon any Guarantor.


 


A Guarantee shall not be valid or become
obligatory for any purpose with respect to a Senior Note unless the certificate
of authentication on such Senior Note shall have been signed by or on behalf of
the Trustee.


 


Each Guarantor also agrees to pay any and all
costs and expenses (including reasonable attorney’s fees and expenses) incurred
by the Trustee as a representative of any Holder in enforcing any rights under
this section.


 


SECTION 11.2.               Execution and
Delivery of Guarantees.  The
delivery of any Senior Note by the Trustee, after the authentication thereof
hereunder, shall constitute due delivery of the Guarantee set forth in this
Indenture on behalf of each Guarantor.


 


SECTION 11.3.               Limitation of
Guarantee.  The obligations of each
Guarantor will be limited to the maximum amount as will, after giving effect to
all other contingent and fixed liabilities of such Guarantor and after giving
effect to any collections from or payments made by or on behalf of any other
Guarantor in respect of the obligations of such other Guarantor under its
Guarantee or pursuant to its contribution obligations under this Indenture,
result in the obligations of such Guarantor under the Guarantee not
constituting a fraudulent conveyance or fraudulent transfer under Federal or
state law. Each Guarantor that makes a payment or distribution under a
Guarantee shall be entitled to a contribution from each other Guarantor in a
pro rata amount based on the Adjusted Net Assets of each Guarantor.


 


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SECTION 11.4.               Release of
Guarantor.  A Guarantor shall be
released from all of its obligations under its Guarantee if:


 


(i)                                     the
Guarantor has sold all or substantially all of its assets or Holdings and its
Subsidiaries have sold all of the Equity Interests of the Guarantor owned by
them, in each case in a transaction in compliance with Sections 4.10 and 5.1
hereof to the extent applicable;


 


(ii)                                  the
Guarantor merges with or into or consolidates with, or transfers all or
substantially all of its assets to, either of the Issuers or another Guarantor
in a transaction in compliance with Section 5.1 hereof;  or


 


(iii)                               the
Guarantor has been designated as an Unrestricted Subsidiary pursuant to, and in
compliance with, Section 4.13 of this Indenture;


 


and in each such case, each of the Issuers
has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent herein provided for
relating to such transactions have been complied with. At the written request
of the Issuers, the Trustee will promptly execute and deliver appropriate
instruments in forms reasonably acceptable to the Issuers evidencing and
further implementing any releases or discharges pursuant to the foregoing
provisions.


 


SECTION 11.5.               Additional
Guarantors.  Holdings and each of
the Issuers covenants and agrees that it will cause any Person which becomes
obligated to guarantee the Senior Notes pursuant to the terms of Section 4.13
hereof, to execute a Guarantee satisfactory in form and substance to the
Trustee pursuant to which such Person shall guarantee the obligations of the
Issuers under the Senior Notes and this Indenture in accordance with this
Article 11 with the same effect and to the same extent as if such Person had
been named herein as a Guarantor. Notwithstanding the foregoing, if such Person
is a Subsidiary incorporated in a jurisdiction other than the United States,
and if and to the extent that the execution of a Guarantee by such Person would
have adverse tax consequences for Holdings or any of its Subsidiaries, Holdings
shall not be obligated to cause such Person to execute a Guarantee, provided
that Holdings shall cause 65% (or such other greater or lesser percentage which
as a result of a change of law may be pledged without resulting in adverse tax
consequences) of the issued and outstanding shares of stock of such Person to
become Collateral as and when received by Holdings or by any of its
Subsidiaries.


 


ARTICLE 12


 


Miscellaneous


 


SECTION 12.1.               Trust Indenture
Act Controls.  If any provision of
this Indenture limits, qualifies or conflicts with another provision which is
required to be included in this Indenture by the TIA, the required provision
shall control.


 


SECTION 12.2.               Notices.  Any notice or communication shall be given
in writing and delivered in person, sent by facsimile, delivered by commercial
courier service or mailed by first-class mail, postage prepaid, addressed as
follows:


 


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  if to the Issuers or any Guarantor:

  
	
   

  
	
   

  	
  Superior Essex Communications LLC

  
	
   

  	
  Essex Group, Inc.

  
	
   

  	
  150 Interstate North Parkway, Suite 300

  
	
   

  	
  Atlanta, Georgia  30339-2101

  
	
   

  	
  Attention: Chief Financial Officer

  
	
   

  	
  Telecopy: (770) 984-3218

  
	
   

  	
   

  
	
  with a copy to:

  	
  Proskauer Rose LLP

  
	
   

  	
  1585 Broadway

  
	
   

  	
  New York, New York  10036-8299

  
	
   

  	
  Attention: Jack P. Jackson, Esq.

  
	
   

  	
  Telecopy: (212) 969-2900

  
	
   

  	
   

  
	
  if to the Trustee:

  	
  The Bank of New York

  
	
   

  	
  Corporate Trust Administration

  
	
   

  	
  101 Barclay Street, Floor 8W

  
	
   

  	
  New York, New York  10286

  
	
   

  	
  Attention:  Mary LaGumina

  
	
   

  	
  Telecopy:  (646) 835-8437

  



 


Such notices or communications shall be
effective when received and shall be sufficiently given if so given within the
time prescribed in this Indenture.


 


The Issuers, any Guarantors or the Trustee by
written notice to the others may designate additional or different addresses
for subsequent notices or communications.


 


Any notice or communication mailed to a
Holder shall be mailed to him by first-class mail, postage prepaid, at his
address shown on the register kept by the Registrar. If a notice or
communication to a Holder is mailed in the manner provided above, it shall be
deemed duly given on the date so deposited in the mail, whether or not the
addressee receives it.


 


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.


 


In case, by reason of the suspension of
regular mail service, or by reason of any other cause, it shall be impossible
to mail any notice as required by this Indenture, then such method of
notification as shall be made with the approval of the Trustee shall constitute
a sufficient mailing of such notice.


 


SECTION 12.3.               Communications by
Holders with Other Holders.  Holders
may communicate pursuant to TIA Section 312(b) with other Holders with respect
to their rights under this Indenture or the Senior Notes. The Issuers, the
Guarantors, the Trustee, the Registrar and anyone else shall have the
protection of TIA Section 312(c).


 


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SECTION 12.4.               Certificate and
Opinion as to Conditions Precedent. 
Upon any request or application by the Issuers or any Guarantor to the
Trustee to take any action under this Indenture, each of the Issuers shall
furnish to the Trustee:


 


(1) an Officers’ Certificate (which shall
include the statements set forth in Section 12.5 below) in form and substance
reasonably satisfactory to the Trustee stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with;


 


(2) an Opinion of Counsel (which shall
include the statements set forth in Section 12.5 below) in form and substance
reasonably satisfactory to the Trustee stating that, in the opinion of such
counsel, all such conditions precedent have been complied with; and


 


(3) where applicable, a certificate or
opinion by an independent certified public accountant satisfactory to the
Trustee that complies with TIA Section 314(c).


 


SECTION 12.5.               Statements
Required in Certificate and Opinion. 
Each certificate and opinion with respect to compliance with a condition
or covenant provided for in this Indenture shall include:


 


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


 


(2) a brief statement as to the nature and
scope of the examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;


 


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


 


(4) a statement as to whether or not, in the
opinion of such Person, such covenant or condition has been complied with.


 


SECTION 12.6.               When Treasury
Senior Notes Disregarded.  In
determining whether the Holders of the required aggregate principal amount of
Senior Notes have concurred in any direction, waiver or consent, (i) Senior
Notes owned by the Issuers, any Guarantor or any other obligor on the Senior
Notes shall be disregarded as though they were not outstanding and (ii) solely
to the extent required by TIA Section 316(a) and TIA Section 315(d), Senior
Notes owned by Affiliates shall be disregarded as though they were not
outstanding, except that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Senior Notes which the Trustee actually knows are so owned shall be so
disregarded. Senior Notes so owned which have been pledged in good faith shall
not be disregarded if the pledgee establishes to the satisfaction of the
Trustee the pledgee’s right so to act with respect to the Senior Notes and that
the pledgee is not the Issuers, a Guarantor or any other obligor upon the
Senior Notes or any Affiliate of any of them.


 


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SECTION 12.7.               Rules by Trustee
and Agents.  The Trustee may make
reasonable rules for action by or meetings of Holders. The Registrar and Paying
Agent may make reasonable rules for their functions.


 


SECTION 12.8.               Business Days;
Legal Holidays.  A “Business Day” is
a day that is not a Legal Holiday. A “Legal Holiday” is a Saturday, a Sunday, a
federally-recognized holiday or a day on which banking institutions are not
required to be open in the State of New York or Atlanta, Georgia. If a payment
date is a Legal Holiday at a place of payment, payment may be made at that
place on the next succeeding day that is not a Legal Holiday, and no interest
shall accrue for the intervening period.


 


SECTION 12.9.               GOVERNING LAW.  THIS INDENTURE AND THE SENIOR NOTES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE JURISDICTION OF THE COURTS
OF THE STATE OF NEW YORK OVER ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS INDENTURE OR THE SENIOR NOTES.


 


SECTION 12.10.           No Adverse
Interpretation of Other Agreements. 
This Indenture may not be used to interpret another indenture, loan,
security or debt agreement of the Issuers or any Subsidiary thereof. No such
indenture, loan, security or debt agreement may be used to interpret this
Indenture.


 


SECTION 12.11.           No Recourse Against
Others.  No recourse for the payment
of the principal of or premium, if any, or interest on any of the Senior Notes,
or for any claim based thereon or otherwise in respect thereof, and no recourse
under or upon any obligation, covenant or agreement of the Issuers or any
Guarantor in this Indenture or in any supplemental indenture, or in any of the
Senior Notes, or because of the creation of any Indebtedness represented
thereby, shall be had against any stockholder, officer, director, partner,
affiliate, beneficiary or employee, as such, past, present or future, of the
Issuers or of any successor corporation or against the property or assets of
any such stockholder, officer, employee, partner, affiliate, beneficiary or
director, either directly or through the Issuers or any Guarantor, or any
successor corporation thereof, whether by virtue of any constitution, statute
or rule of law, or by the enforcement of any assessment or penalty or
otherwise; it being expressly understood that this Indenture and the Senior
Notes are solely obligations of the Issuers and the Guarantors, and that no
such personal liability whatever shall attach to, or is or shall be incurred
by, any stockholder, officer, employee, partner, affiliate, beneficiary or
director, as such, of the Issuers or any Guarantor, or any successor
corporation thereof, because of the creation of the Indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or the Senior Notes or implied therefrom, and that
any and all such personal liability of, and any and all claims against every
stockholder, officer, employee, partner, affiliate, beneficiary and director,
as such, are hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issuance of the
Senior Notes.  Such waiver may not be
effective to waive liabilities under federal securities laws and it is the view
of the SEC that such waiver is against public policy.  It is understood that this limitation on recourse is made
expressly for the benefit of any such stockholder, employee, officer, partner,
affiliate, beneficiary or director and may be enforced by any one or all of
them.


 


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SECTION 12.12.           Successors.  All agreements of the Issuers and the
Guarantors in this Indenture and the Senior Notes shall bind their respective
successors. All agreements of the Trustee, any additional trustee and any
Paying Agents in this Indenture shall bind their respective successors.


 


SECTION 12.13.           Multiple Counterparts.  The parties may sign multiple counterparts
of this Indenture. Each signed counterpart shall be deemed an original, but all
of them together represent one and the same agreement.


 


SECTION 12.14.           Table of Contents,
Headings, etc.  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 to
be considered a part hereof, and shall in no way modify or restrict any of the
terms or provisions hereof.


 


SECTION 12.15.           Separability.  Each provision of this Indenture shall be
considered separable and if for any reason any provision which is not essential
to the effectuation of the basic purpose of this Indenture or the Senior Notes
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.


 


[The remainder of this page is intentionally
left blank.]


 


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


 


	
   

  	
  SUPERIOR ESSEX COMMUNICATIONS LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/
  David S. Aldridge

  	
   

  
	
   

  	
   

  	
  Name:

  	
  David S. Aldridge

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ESSEX GROUP, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/
  David S. Aldridge

  	
   

  
	
   

  	
   

  	
  Name:

  	
  David S. Aldridge

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  On behalf of each entity named on the attached

  Schedule I

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/
  David S. Aldridge

  	
   

  
	
   

  	
   

  	
  Name:

  	
  David S. Aldridge

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TRUSTEE,

  
	
   

  	
   

  
	
   

  	
  THE BANK OF NEW YORK

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/
  Mary LaGumina

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Mary LaGumina

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
					



 


83

















 


EXHIBIT
A


 


FORM
OF NOTE


 


(FACE OF NOTE)


 


[Insert the Global Note Legend, if applicable
pursuant to the provisions of the Indenture]


 


	
  NUMBER 

  	
   

  	
   

  	
  AMOUNT 

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  CUSIP NUMBER

  	
   

  



 


SUPERIOR ESSEX COMMUNICATIONS LLC

ESSEX GROUP, INC.


 


SECOND PRIORITY SECURED NOTES DUE 2008


 


THE PRINCIPAL OF THIS NOTE IS PAYABLE IN PART
OR IN WHOLE PRIOR TO MATURITY AS SET FORTH BELOW. ACCORDINGLY, THE OUTSTANDING
PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON
THE FACE HEREOF.


 


Superior Essex Communications LLC, a Delaware
limited liability company (the “Company,” which term includes any successor
corporation), and Essex Group, Inc., a Michigan corporation (the “Co-Issuer,”
which term includes any successor corporation, and together with the Company,
herein called the “Issuers”), for value received jointly and severally promise
to pay to
                             
or registered assigns, the principal sum of                                                          
Dollars
($                  ),
on


 


Interest Payment Dates: [date]
and [date] of each year commencing •, 200[  ].


 


Record Dates: each [date] and [date].


 


Issue Date: 
•,
200[  ].


 


Reference is made to the further provisions
of this Senior Note contained herein, which will for all purposes have the same
effect as if set forth at this place.


 


[Signature page attached.]


 


A-1

















 


IN WITNESS WHEREOF, the Issuers have caused this Second Priority
Secured Note due 2008 to be signed manually or by facsimile by their duly
authorized officers.


 


 


	
   

  	
  SUPERIOR ESSEX COMMUNICATIONS LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ESSEX GROUP, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  



 


A-2

















 


Certificate of Authentication:


 


This is one of the Second Priority Secured
Notes due 2008 referred to in the within-mentioned Indenture.


 


	
  Dated: November •,
  2003

  
	
   

  
	
   

  
	
  THE BANK OF NEW YORK, as Trustee

  
	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized Signatory

  



 


A-3

















 


(REVERSE SIDE)


 


SUPERIOR ESSEX COMMUNICATIONS LLC

ESSEX GROUP, INC.


 


SECOND PRIORITY SECURED NOTES DUE 2008


 


1.                                       INTEREST.


 


(a)  Superior Essex Communications
LLC, a Delaware limited liability company (the “Company”), and Essex Group,
Inc., a Michigan corporation (the “Co-Issuer” and, together with the Company,
the “Issuers”), jointly and severally promise to pay interest on the principal
amount of the Senior Notes at a rate per annum of 9.5% until the principal
hereof shall have become due and payable, and on any overdue principal and
(without duplication and to the extent that payment of such interest is
enforceable under applicable law) on any overdue installment of interest at the
same rate per annum compounded semi-annually, payable semi-annually in arrears
on May 10  and November 10  of each year, commencing May 10, 2004
(each, an “Interest Payment Date”), to the person in whose name the Senior
Notes are registered at the close of business on the regular record date for
such interest installment, which shall be the first date of the month in which
the relevant Interest Payment Date falls. 
The amount of interest payable on any Interest Payment Date shall be
computed on the basis of the actual number of days elapsed and a 360-day year.


 


(b)  If as of the last day of the
most recently completed calendar month which is 30 days prior to the First
Interest Payment Date, the sum of (i) Consolidated Cash Flow Available for
Fixed Charges of Holdings does not exceed $20 million, then, in lieu of making
the otherwise due cash payment on such Interest Payment Date, the Issuers may
pay interest as follows:  (i) cash
interest at the rate per annum of 4.75%, and (ii) payment in Secondary Senior
Notes identical to the Senior Notes, and on the Second Interest Payment Date if
the Issuers do not issue Secondary Senior Notes on such date or if the Issuers
do issue Secondary Senior Notes on the Second Interest Payment Date, the next
Interest Payment Date, an additional cash payment to each holder, on a pro rata
basis, equal to 0.25% of the aggregate amount of Senior Notes outstanding as of
the applicable record date for such Interest Payment (such amounts, “Additional
Amounts”).


 


(c)  If as of the last day of the
most recently completed calendar month which is 30 days prior to the Second
Interest Payment Date, the Consolidated Cash Flow Available for Fixed Charges
of Holdings does not exceed $50 million, then, in lieu of making the otherwise
due cash payment on such Interest Payment Date, the Issuers may pay interest as
follows:  (i) cash interest at the rate
per annum of 4.75%, and (ii) payment in Secondary Senior Notes identical to the
Senior Notes, including the same maturity date, and on the next Interest
Payment Date an Additional Amount.


 


2.                                       METHOD
OF PAYMENT.


 


The Issuers will pay interest on this Senior
Note provided for in Paragraph 1 above (except defaulted interest) to the
person who is the registered Holder of this Note at the close of business on
the first day of the month in which the relevant Interest Payment Date falls
(whether


 


A-4

















 


or not such day is a Business
Day). The Holder must surrender this Note to a Paying Agent to collect
principal payments due on the Maturity Date. The Issuers will pay principal,
premium, if any, Additional Amounts, if any, and interest in money of the
United States that at the time of payment is legal tender for payment of public
and private debts; provided, however, that the Issuers may pay
principal, premium, if any, Additional Amounts, if any, and interest by check
payable in such money. It may mail an interest check to the Holder’s registered
address. Notwithstanding the foregoing, all payments with respect to the Senior
Notes, the Holders of which are entitled to give, and have given, wire transfer
instructions to the Paying Agent on or before the relevant record date pursuant
to the Indenture (as hereinafter defined), shall be made by wire transfer of
immediately available funds to the accounts specified by such Holders.


 


3.                                       PAYING
AGENT AND REGISTRAR.


 


Initially, The Bank of New York (the
“Trustee”), will act as Paying Agent and Registrar. The Issuers may change any
Paying Agent or Registrar without notice to the Holders of the Senior Notes.
Neither of the Issuers nor any of their Subsidiaries or Affiliates may act as
Paying Agent but may act as Registrar or co-Registrar.


 


4.                                       INDENTURE
AND COLLATERAL DOCUMENTS.


 


The Issuers issued this Senior Note under an
Indenture dated as of November 10, 2003, (as such may be amended, supplemented,
waived and modified from time to time, the “Indenture”), by and among the
Issuers, the Guarantors party thereto and the Trustee. The terms of this Senior
Note include those stated in the Indenture and those made part of the Indenture
by reference to the Trust Indenture Act of 1939 as in effect on the date of the
Indenture. This Senior Note is subject to all such terms, and the Holder of
this Senior Note is referred to the Indenture and said Trust Indenture Act for
a statement of them. The terms of the Indenture shall govern any
inconsistencies between the Indenture and the Senior Notes or the Guarantee.
The Senior Notes are secured by the Collateral (as defined in the Indenture)
pursuant to the Collateral Documents and may be released pursuant to the terms thereof,
subject to the terms of this Indenture. The Collateral Documents govern the
rights in and to the Collateral of the holders from time to time of Senior
Indebtedness and of the Trustee and the Holders. All capitalized terms in this
Senior Note, unless otherwise defined, have the meanings assigned to them by
the Indenture.  Without limiting the
foregoing, each Holder, by accepting this Senior Note, authorizes the Trustee
on behalf of and for the benefit of each Holder, to execute each of the
Collateral Document to which it is a party and to be the agent for and
representative of each Holder with respect to the Collateral and the Collateral
Documents and authorizes the Trustee to appoint and direct the Collateral Agent
(as defined in the Indenture) to be the agent for and representative of each
Holder with respect to the Collateral and the Collateral Documents in
accordance with the provisions of the Intercreditor Agreement.


 


The Senior Notes are secured obligations of
the Issuers of up to $145,000,000 (excluding any Secondary Senior Notes that
may be issued pursuant to paragraph 1 of this Note) in aggregate principal
amount, subject to adjustment as provided in the Indenture. The Indenture
imposes certain restrictions on, among other things, the Issuers’ ability to
consolidate or merge with or into, or to transfer all or substantially all of
its assets to, another person.


 


A-5

















 


5.                                       OPTIONAL
REDEMPTION.


 


Subject to the terms of Section 3.7 of the
Indenture, the Issuers may redeem the Senior Notes, in whole or in part, at any
time other than during the Redemption Period following a Change of Control at a
redemption price equal to 100% of the principal amount thereof, plus any
accrued and unpaid interest to the Redemption Date.


 


6.                                       NOTICE
OF REDEMPTION.


 


Notice of redemption will be mailed via first
class mail at least 15 days but not more than 30 days prior to the Redemption
Date to each Holder of Senior Notes to be redeemed at its registered address as
it shall appear on the register of the Senior Notes maintained by the
Registrar. On and after any Redemption Date, interest will cease to accrue on
the Senior Notes or portions thereof called for redemption unless the Issuers
shall default in making the redemption payment thereon.


 


7.                                       GUARANTEE.


 


Payment of principal of, premium, if any, and
interest (including interest on overdue principal and overdue interest (if
lawful)) on the Senior Notes and all other obligations of the Issuers to the
Holders will be unconditionally guaranteed by the Guarantors pursuant to, and
subject to the terms of, Article 11 of the Indenture.


 


8.                                       INTERCREDITOR
AGREEMENT.


 


The Intercreditor Agreement sets forth the
relative rights of the Trustee and the Holders, on the one hand, and the holders
of the Senior Indebtedness, on the other hand, as to the priority of payment of
the Senior Indebtedness over the Senior Notes and related obligations in
certain circumstances. The terms of the Senior Notes are subject to the terms
of the Intercreditor Agreement and each Holder, by accepting this Senior Note,
agrees to all of the terms and provisions of the Intercreditor Agreement which
may be amended from time to time pursuant to the provisions thereof and this
Indenture. Without limiting the foregoing, each Holder, by accepting this
Senior Note, acknowledges and agrees that its rights to payment of the
obligations evidenced by the Senior Notes and the Guarantees are subject to the
terms of the Intercreditor Agreement, and authorizes the Trustee to give effect
thereto and appoints the Trustee and Collateral Agent as attorney in fact for
such purpose.


 


9.                                       DENOMINATIONS,
TRANSFER, EXCHANGE.


 


The Senior Notes are in registered form
without coupons in denominations of whole dollar integrals. A Holder may register
the transfer or exchange of Senior Notes in accordance with the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. The Registrar need not register the transfer
of or exchange any Senior Note selected for redemption or register the transfer
of or exchange any Senior Note for a period of 15 days before a selection of
Senior Notes to be redeemed or any Senior Note after it is called for
redemption in whole or in part, except the unredeemed portion of any Senior
Note being redeemed in part.


 


A-6

















 


10.                                 PERSONS
DEEMED OWNERS.


 


The registered Holder of this Senior Note may
be treated as the owner of it for all purposes.


 


11.                                 UNCLAIMED
MONEY.


 


If money for the payment of principal,
premium or interest on any Senior Note remains unclaimed for two years, the
Trustee or Paying Agent will pay the money back to the Issuers at their
request. After that, Holders entitled to money must look to the Issuers for
payment as general creditors unless an “abandoned property” law designates
another person.


 


12.                                 AMENDMENT,
SUPPLEMENT AND WAIVER.


 


Subject to certain exceptions, the Indenture,
the Senior Notes, the Guarantees or the Collateral Documents (subject to any
amendment provisions contained therein) may be modified, amended or
supplemented by the Issuers, the Guarantors and the Trustee with the consent of
the Holders of at least a majority in principal amount of the Senior Notes then
outstanding and any existing default or compliance with any provision may be
waived in a particular instance with the consent of the Holders of at least a
majority in principal amount of the Senior Notes then outstanding. Without the
consent of Holders, the Issuers, the Guarantors and the Trustee may modify,
amend the Indenture, the Senior Notes, the Guarantees or the Collateral
Documents or supplement the Indenture for certain specified purposes, including
providing for uncertificated Senior Notes in addition to certificated Senior
Notes, and curing any ambiguity, defect or inconsistency, or making any other
change that does not adversely affect the rights of any Holder, or to comply
with the requirements of the SEC in order to effect or maintain the
qualification of the Indenture under the Trust Indenture Act to enter into
additional or supplemental Collateral Documents, to adjust the principal amount
of the Senior Notes issued pursuant to the Indenture and to otherwise comply
with the terms of the Plan of Reorganization (as defined in the Indenture).


 


13.                                 SUCCESSOR
ENTITY.


 


When a successor corporation assumes all the
obligations of its predecessor under the Senior Notes and the Indenture and
immediately before and thereafter no Default exists and certain other
conditions are satisfied, the predecessor corporation will be released from
those obligations.


 


14.                                 DEFAULTS
AND REMEDIES.


 


Events of Default are set forth in the
Indenture. If an Event of Default (other than an Event of Default pursuant to
Section 6.1(7) or (8) of the Indenture) occurs and is continuing, the Trustee
by notice to the Issuers or the Holders of not less than 25% in aggregate
principal amount of the Senior Notes then outstanding by written notice to the
Issuers and the Trustee, may declare to be immediately due and payable the
entire principal amount of all the Senior Notes then outstanding plus premium,
if any, and accrued but unpaid interest to the date of acceleration and such amounts
shall become immediately due and payable. In case an Event of Default specified
in Section 6.1(7) or (8) of the Indenture occurs, such principal amount,
together


 


A-7

















 


with premium, if any, and interest
with respect to all of the Senior Notes, shall be due and payable immediately
without any declaration or other act on the part of the Trustee or the Holders
of the Notes. The Trustee may withhold from Holders notice of any continuing
default (except a default in payment of principal, premium, if any, or
interest) if it determines that withholding notice is in their interests.


 


15.                                 TRUSTEE
DEALINGS WITH THE ISSUERS.


 


The Trustee under the Indenture, in its
individual or any other capacity, may become the owner or pledgee of Senior
Notes, make loans to, accept deposits from, and perform services for the
Issuers, any Guarantor or their Affiliates, and may otherwise deal with the
Issuers, any Guarantor or their Affiliates, as if it were not the Trustee.


 


16.                                 NO
RECOURSE AGAINST OTHERS.


 


As more fully described in the Indenture, no
past, present or future director, officer, employee, partner, affiliate,
beneficiary or stockholder, as such, of the Issuers or any Guarantor shall have
any liability for any obligations of the Issuers or any Guarantor under the
Senior Notes or the Indenture or for any claim based on, in respect or by
reason of, such obligations or their creation. The Holder of this Senior Note
by accepting this Senior Note waives and releases all such liability.  The waiver and release are part of the
consideration for the issuance of this Senior Note.  Such waiver may not be effective to waive liabilities under
federal securities laws and it is the view of the SEC that such waiver is
against public policy.


 


17.                                 DEFEASANCE
AND COVENANT DEFEASANCE.


 


The Indenture contains provisions for
defeasance of the entire indebtedness on this Senior Note and for defeasance of
certain covenants in the Indenture upon compliance by the Issuers with certain
conditions set forth in the Indenture.


 


18.                                 ABBREVIATIONS.


 


Customary abbreviations may be used in the
name of a Holder of a Note or an assignee, such as: TEN COM (= tenants in
common), TEN ENT (= tenants by the entireties), JT TEN (joint tenants with
right of survivorship and not as tenants in common), CUST (= Custodian), and
U/G/M/A (= Uniform Gifts to Minors Act).


 


19.                                 CUSIP
NUMBERS.


 


Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures, the Issuers have
caused CUSIP numbers to be printed on the Senior Notes and has directed the
Trustee to use CUSIP numbers in notices of redemption as a convenience to
Holders of the Senior Notes. No representation is made as to the accuracy of
such numbers either as printed on the Senior Notes or as contained in any
notice of redemption and reliance may be placed only on the other
identification numbers placed thereon.


 


A-8

















 


20.                                 GOVERNING
LAW.


 


THE INDENTURE AND THE SENIOR NOTES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK OVER ANY SUIT, ACTION OR PROCEEDING ARISING OUT
OF OR RELATING TO THIS INDENTURE OR THE SENIOR NOTES.


 


THE ISSUERS WILL FURNISH TO ANY HOLDER OF A
SENIOR NOTE UPON WRITTEN REQUEST AND WITHOUT CHARGE A COPY OF THE INDENTURE.
REQUESTS MAY BE MADE TO: SUPERIOR ESSEX COMMUNICATIONS LLC AND ESSEX GROUP,
INC., 150 INTERSTATE NORTH PARKWAY, SUITE 300, ATLANTA, GEORGIA 30339-2101,
ATTENTION:  SECRETARY (OR SUCH OTHER
ADDRESS AS THE ISSUERS MAY DESIGNATE FROM TIME TO TIME FOR SUCH PURPOSE IN
WRITTEN NOTICE TO THE HOLDERS OF SENIOR NOTES).


 


21.                                 AUTHENTICATION.


 


This Senior Note shall not be valid until the
Trustee manually signs the Certificate of Authentication on the other side of
this Senior Note.


 


A-9

















 


ASSIGNMENT FORM(1)


 


I or we assign
and transfer this Senior Note to:


 


	
  (Insert assignee’s social
  security or tax I.D. number)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  



 


(Print or type
name, address and zip code of assignee) and irrevocably appoint:


 


	
   

  	
   

  
	
   

  	
   

  



 


Agent to transfer this Senior Note on the
books of the Issuers. The Agent may substitute another to act for him.


 


	
  Date:

  	
   

  	
   

  
	
   

  
	
  Your Signature:

  	
   

  	
   

  
	
   

  
	
  (Sign exactly as your name
  appears on the other side of this Note)

  
	
   

  
	
  Signature Guarantee:

  	
   

  	
   

  
						



 


 












(1)  This Assignment Form should
be included only if the Note is in definitive form.


 


A-10

















 


OPTION OF
HOLDER TO ELECT PURCHASE


 


If you want to elect to have all or any part
of this Senior Note purchased by the Issuers pursuant to Section 4.6 of the
Indenture, check the box:


 


o


 


If you want to have only part of the Senior
Note purchased by the Issuers pursuant to Section 4.6 of the Indenture, state
the amount you elect to have purchased:
$             
(multiple of $1,000)


 


 


	
  Date:

  	
   

  	
   

  
	
   

  
	
  Your Signature:

  	
   

  	
   

  
	
  (Sign exactly as your name
  appears on the face of this Note)

  
	
   

  
	
  Signature Guaranteed

  
	
   

  
	
   

  	
   

  
						



 


A-11

















 


SCHEDULE OF
EXCHANGES OF INTERESTS IN THE GLOBAL NOTE(1)


 


The following exchanges of a
part of this Global Note for an interest in another Global Note or for a
Definitive Note, or exchanges of a part of another Global Note or Definitive
Note for an interest in this Global Note, have been made:


 


	
  Date of

  Exchange

  	
   

  	
  Amount of

  decrease in

  Principal

  Amount

  of this Global

  Note

  	
   

  	
  Amount of

  increase

  in Principal

  Amount of this

  Global Note

  	
   

  	
  Principal

  Amount

  of this Global

  Note

  following such decrease (or

  increase)

  	
   

  	
  Signature
  of

  authorized

  officer

  of Trustee or

  Note

  Custodian

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


 












(1)  This Schedule should be
included only if the Note is in global form.


 


A-12

















 


EXHIBIT
B


 


FORM OF GLOBAL NOTE LEGEND


 


Any Global Note authenticated and delivered
hereunder shall bear a legend (which would be in addition to any other legends
required in the case of a Restricted Security) in substantially the following
form:


 


THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING
OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITORY OR A NOMINEE OF A DEPOSITORY IN CUSTODY FOR THE BENEFICIAL OWNERS
HEREOF. THIS NOTE IS NOT EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A
PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER
THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY
OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE
DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN
THE INDENTURE.


 


UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (A NEW YORK
CORPORATION) (“DTC”) TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR 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.


 


B-1

















 


EXHIBIT
C


 


FORM OF SUPPLEMENTAL INDENTURE


 


THIS SUPPLEMENTAL INDENTURE, dated as of
              ,
between
                               
(the  “Guarantor”), a subsidiary
of [Superior Essex Communications
LLC, a Delaware limited liability company/Essex Group, Inc., a Michigan
corporation], and The Bank of New
York, as trustee under the Indenture as defined below (the “Trustee”).


 


WITNESSETH


 


WHEREAS, Superior Essex Communications LLC
(the “Company”) and Essex Group, Inc. (the “Co-Obligor” and, together with the
Company, the “Issuers”) and the Guarantors as listed on Schedule 1 to the
Indenture, have heretofore executed and delivered to the Trustee an indenture
(the “Indenture”), dated as of November 10, 2003, providing for the issuance of
up to an aggregate principal amount of $145,000,000 (excluding Secondary Senior
Notes) of Second Priority Secured Notes due 2008 (the “Senior Notes”);


 


WHEREAS, Section 4.13 of the Indenture
provides that under certain circumstances the Issuers are required to cause the
Guarantor to execute and deliver to the Trustee a supplemental indenture
pursuant to which the Guarantor shall unconditionally guarantee all of the
Issuers’ Obligations under the Senior Notes pursuant to a Guarantee on the
terms and conditions set forth herein; and


 


WHEREAS, pursuant to Section 8.1 of the
Indenture, the Trustee is authorized to execute and deliver this Supplemental
Indenture.


 


NOW THEREFOR, in consideration of the
foregoing and for other good and valuable consideration, the receipt of which
is hereby acknowledged, the Guarantor and the Trustee mutually covenant and
agree for the equal and ratable benefit of the Holders of the Senior Notes as
follows:


 


1.  CAPITALIZED
TERMS.  Capitalized terms used herein
without definition shall have the meanings assigned to them in the Indenture.


 


2.  AGREEMENT
TO GUARANTEE.  The Guarantor hereby
agrees, jointly and severally with all other Guarantors, to guarantee the
Issuers’ obligations under the Senior Notes on the terms and subject to the
conditions set forth in Article 11 of the Indenture and to be bound by all
other applicable provisions of the Indenture.


 


3.  NO
RECOURSE AGAINST OTHERS.  No past,
present or future director, officer, employee, partner, affiliate, beneficiary
or stockholder of the Guarantor, as such, shall have any liability for any
obligations of the Issuers or any Guarantor under the Senior Notes, any
Guarantees, the Indenture or this Supplemental Indenture or for any claim based
on, in respect of, or by reason of, such obligations or their creation.  Each Holder of the Senior Notes by accepting
a Note waives and releases all such liability. 
The waiver and release are part of the consideration for issuance of the
Senior Notes.  Such waiver or release
may not be effective to


 


C-1

















 


waive or release liabilities
under the federal securities laws and it is the view of the SEC that such
waiver is against public policy.


 


4.  NEW
YORK LAW TO GOVERN.  The laws of the
State of New York shall govern and be used to construe this Supplemental
Indenture.


 


5.  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.


 


6.  EFFECT
OF HEADINGS.  The Section headings
herein are for convenience only and shall not affect the construction hereof.


 


7.  THE
TRUSTEE.  The Trustee shall not be
responsible in any manner whatsoever for or in respect of the validity or
sufficiency of this Supplemental Indenture or for or in respect of the recitals
contained herein, all of which recitals are made solely by the Guarantor and
the Issuers.


 


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


 


	
  Dated:

  	
   

  	
  ,

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  [Guarantor]

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  The Bank of New York, as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
										



 


C-2

















 


EXHIBIT D


 


Initial
Holders


 


D-1

















 


SCHEDULE I


 


GUARANTORS


 


	
  Name

  	
   

  	
  Jurisdiction of Incorporation

  
	
  Superior
  Essex Inc.

  	
   

  	
  Delaware
  corporation

  
	
  Superior
  Essex Holding Corp.

  	
   

  	
  Delaware
  corporation

  
	
  Essex
  International Inc.

  	
   

  	
  Delaware
  corporation

  
	
  Essex Group,
  Inc.

  	
   

  	
  Delaware
  corporation

  
	
  Essex
  Services, Inc.

  	
   

  	
  Delaware
  corporation

  
	
  Essex Canada
  Inc.

  	
   

  	
  Delaware
  corporation

  
	
  Essex Group
  Mexico Inc.

  	
   

  	
  Delaware
  corporation

  
	
  Essex
  Technology, Inc.

  	
   

  	
  Delaware
  corporation

  
	
  Essex Wire
  Corporation

  	
   

  	
  Michigan
  corporation

  
	
  Essex Mexico
  Holdings, L.L.C.

  	
   

  	
  Delaware
  limited liability company

  



 

















 


SCHEDULE 1.1


CERTAIN UNRESTRICTED SUBSIDIARIES


 


Superior Cable Corporation


Femco Magnet Wire Corp.


Essex International Ltd.


Essex Pension Trustees, Ltd.


IP Licensing LLC


Temple Electrical Company Ltd.


Essex Group Mexico S.A. de C.V.


Grupo Essex de Mexico S. de
R.L. de C.V.


 


 


2