OR INDIRECT PARENT OF THE
COMPANY HELD BY ANY HOLDER OF CAPITAL STOCK. FOLLOWING THE SECOND ANNIVERSARY OF
THE ISSUE DATE, THE COMPANY MAY, AND MAY PERMIT ITS RESTRICTED SUBSIDIARIES TO,
MAKE SUCH DECLARATIONS, DISTRIBUTIONS, PAYMENTS, PURCHASES, REDEMPTIONS,
RETIREMENTS OR ACQUISITIONS, PROVIDED THAT THE CONSOLIDATED COVERAGE RATIO FOR
THE COMPANY AND ITS RESTRICTED SUBSIDIARIES IS AT LEAST 2.50 TO 1.00."
SECTION 2.3. AMENDMENT TO SECTION 3.8. SECTION 3.8 OF THE INDENTURE IS HEREBY
AMENDED BY DELETING CLAUSE (8) OF THE SECOND PARAGRAPH THEREOF AND REPLACING IT
IN ITS ENTIRETY WITH THE FOLLOWING:
"(8)
SO LONG AS NO DEFAULT OR EVENT OF DEFAULT SHALL HAVE OCCURRED AND
BE CONTINUING, UP TO $450,000 OF CONSULTING AND MANAGEMENT FEES PAYABLE ANNUALLY
TO WESTON PRESIDIO SERVICE COMPANY LLC OR ANY OF ITS AFFILIATES."
ARTICLE III
MISCELLANEOUS
SECTION 3.1. EFFECTIVENESS OF SUPPLEMENTAL INDENTURE. UPON THE EXECUTION AND
DELIVERY OF THIS SUPPLEMENTAL INDENTURE BY THE COMPANY, EACH OF THE SUBSIDIARY
GUARANTORS AND THE TRUSTEE, THE INDENTURE SHALL BE SUPPLEMENTED IN ACCORDANCE
HEREWITH, AND THIS SUPPLEMENTAL INDENTURE SHALL FORM A PART OF THE INDENTURE FOR
ALL PURPOSES, AND EVERY HOLDER OF NOTES HERETOFORE OR HEREAFTER AUTHENTICATED
AND DELIVERED UNDER THE INDENTURE SHALL BE BOUND HEREBY; PROVIDED, THAT THE
AMENDMENTS TO THE INDENTURE SET FORTH IN ARTICLE II OF THIS SUPPLEMENTAL
INDENTURE SHALL NOT BECOME OPERATIVE, AND SHALL NOT HAVE THE EFFECT OF AMENDING
OR OTHERWISE MODIFYING THE TERMS OF THE INDENTURE IN ANY WAY, UNLESS AND UNTIL
THE MERGER (AS DEFINED IN THE STATEMENT, AS MODIFIED BY THE SUPPLEMENT) IS
CONSUMMATED AND THE OTHER CONDITIONS TO THE SOLICITATION OF HOLDERS TO THE
AMENDMENT SET FORTH IN THE STATEMENT, AS MODIFIED BY THE SUPPLEMENT, ARE
SATISFIED OR WAIVED.
SECTION 3.2. TRUST INDENTURE ACT CONTROLS. IF AND TO THE EXTENT THAT ANY
PROVISION OF THIS SUPPLEMENTAL INDENTURE LIMITS, QUALIFIES OR CONFLICTS WITH
ANOTHER PROVISION THAT IS REQUIRED TO BE INCLUDED IN THIS SUPPLEMENTAL INDENTURE
BY THE TIA, THE PROVISION REQUIRED BY THE TIA SHALL CONTROL. EACH SUBSIDIARY
GUARANTOR, IN ADDITION TO PERFORMING ITS OBLIGATIONS UNDER ITS SUBSIDIARY
GUARANTY, SHALL PERFORM SUCH OTHER OBLIGATIONS AS MAY BE IMPOSED UPON IT WITH
RESPECT TO THIS SUPPLEMENTAL INDENTURE UNDER THE TIA.
3
SECTION 3.3. SUCCESSORS. ALL AGREEMENTS OF THE COMPANY AND EACH SUBSIDIARY
GUARANTOR IN THIS SUPPLEMENTAL INDENTURE AND THE SECURITIES SHALL BIND THEIR
RESPECTIVE SUCCESSORS. ALL AGREEMENTS OF THE TRUSTEE IN THIS SUPPLEMENTAL
INDENTURE SHALL BIND ITS SUCCESSORS.
SECTION 3.4. PARTIES. NOTHING EXPRESSED OR MENTIONED HEREIN IS INTENDED OR SHALL
BE CONSTRUED TO GIVE ANY PERSON, FIRM OR CORPORATION, OTHER THAN THE HOLDERS
FROM TIME TO TIME AND THE TRUSTEE, ANY LEGAL OR EQUITABLE RIGHT, REMEDY OR CLAIM
UNDER OR IN RESPECT OF THIS SUPPLEMENTAL INDENTURE OR THE INDENTURE OR ANY
PROVISION HEREIN OR THEREIN CONTAINED.
SECTION 3.5. GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 3.6. SEVERABILITY CLAUSE. IN CASE ANY PROVISION IN THIS SUPPLEMENTAL
INDENTURE SHALL BE INVALID, ILLEGAL OR UNENFORCEABLE, THE VALIDITY,