EXHIBIT 4.2.6
X. X. XXXXXXXXXX & CO., INC.
As Issuer
THE BANK OF NEW YORK, as Successor to
UNITED STATES TRUST COMPANY OF NEW YORK
As Trustee
THE SUBSIDIARY GUARANTORS NAMED HEREIN
As Guarantors
SIXTH SUPPLEMENTAL INDENTURE
DATED AS OF FEBRUARY __, 2003
12 1/2% SENIOR NOTES DUE 2004
SIXTH SUPPLEMENTAL INDENTURE, dated as of February __, 2003, (herein
called this "Supplemental Indenture") among X.X. XXXXXXXXXX & CO., INC., a
corporation duly organized and existing under the laws of the State of Delaware
(herein called the "Company"), having its principal office at 0000 Xxxxxxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000, each of XXXXXX TRAILER MFG. CO., a New
Jersey corporation ("Xxxxxx"), TRUCK ACCESSORIES GROUP, INC., FORMERLY KNOWN AS
LEER, INC., a Delaware corporation ("TAG"), XXXX GROUP, INC., a Delaware
corporation ("Xxxx"), EFP CORPORATION, a Delaware corporation ("EFP"), MAGNETIC
INSTRUMENTS CORP., a Delaware corporation ("MIC"), RAIDER INDUSTRIES, INC., a
Saskatchewan corporation ("Raider"), SWK HOLDINGS, INC., FORMERLY KNOWN AS KWS
MANUFACTURING COMPANY, INC., a Texas corporation ("SWK"), UNIVERSAL XXXXXXX,
INC., a Wisconsin corporation ("Xxxxxxx"), XXXXXX TRAILER FINANCIAL CORPORATION,
a Nevada corporation ("MTFC"), and XXXXXX TRAILER FINANCIAL MANAGEMENT, L.P., a
Texas limited partnership ("MTFMLP") and THE BANK OF NEW YORK, as successor to
UNITED STATES TRUST COMPANY OF NEW YORK, a New York banking corporation, having
its principal corporate trust office at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, as Trustee (herein called the "Trustee")
R E C I T A L
WHEREAS, the Company, Xxxxxx, TAG, Xxxx, EFP, MIC, Raider, SWK,
Xxxxxxx, MTFC, MTFMLP and the Trustee are parties to that certain Indenture,
dated as of May 23, 1994, as amended by the First Supplemental Indenture dated
as of May 11, 1995, by the Second Supplemental Indenture dated as of June 26,
1995, by the Third Supplemental Indenture dated as of March 8, 2000, by the
Fourth Supplemental Indenture dated March 17, 2000 and by the Fifth Supplemental
Indenture dated September 29, 2000 (the "Indenture"), governing the Company's
12 1/2% Senior Notes due 2004 (the "Securities") issued thereunder;
WHEREAS, Section 901(5) of the Indenture provides that, without the
consent of any Holders, the Company, when authorized by a Board Resolution, the
Subsidiary Guarantors, when authorized by resolutions of their respective boards
of directors (certified copies of which shall be furnished to the Trustee) and
the Trustee, at any time and from time to time, may enter into one or more
indentures supplemental to the Indenture, in form satisfactory to the Trustee,
to cure any ambiguity, to correct or supplement any provision of the Indenture
which may be inconsistent with any other provision herein, or to make any other
provisions with respect to matters or questions arising under the Indenture
which shall not be inconsistent with the provisions of the Indenture, provided
such action pursuant to Section 901(5) shall not adversely affect the interests
of the Holders in any material respect;
WHEREAS, the Company and the Subsidiary Guarantors pursuant to the
foregoing authority, propose in and by this Supplemental Indenture to amend and
supplement the Indenture as provided in this Supplemental Indenture, and
requests the Trustee to enter into this Supplemental Indenture; and
WHEREAS, all things necessary to make this Supplemental Indenture a
valid agreement of the Company, the Subsidiary Guarantors and the Trustee and a
valid amendment of and supplement to the Indenture have been done;
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NOW, THEREFORE, for and in consideration of the premises, it is
mutually covenanted and agreed for the equal and proportionate benefit of all
Holders of the Securities:
ARTICLE ONE
DEFINITIONS; AMENDMENT
SECTION 1.1 Definitions. All terms used in this Supplemental Indenture
which are not defined in this Supplemental Indenture and which are defined in
the Indenture shall have the meanings assigned to them in the Indenture.
SECTION 1.2 Amendment. Section 1012(15) currently reads as follows:
"(15) Liens (other than Liens referred to in the foregoing Clauses (1)
to (14) above) if the total amount of the Debt secured by such other
Liens (together with the amount of Debt to be secured by Liens pursuant
to this Clause (15)) does not exceed 10% of Consolidated Tangible
Assets of the Company."
and shall hereby be amended to read as follows:
"(15) Liens (other than Liens referred to in the foregoing Clauses (1)
to (14) above) if the total amount of the Debt secured by such Liens
(together with the amount of other Debt to be secured by Liens pursuant
to this Clause (15)) does not exceed 10% of Consolidated Tangible
Assets of the Company."
ARTICLE TWO
MISCELLANEOUS
SECTION 2.1 Incorporation of Supplemental Indenture. All provisions of
this Supplemental Indenture shall be deemed to be incorporated in, and made a
part of, the Indenture, and the Indenture, as supplemented and amended by this
Supplemental Indenture, shall be read, taken and construed as one and the same
instrument.
SECTION 2.2 Headings. The Article and Section headings of this
Supplemental Indenture are for convenience only and shall not affect the
construction hereof.
SECTION 2.3 Counterparts. This Supplemental Indenture may be executed
in any number of counterparts, each of which so executed shall be deemed to be
an original, but all such counterparts shall together constitute but one and the
same instrument.
SECTION 2.4 Conflict with Trust Indenture Act. If any provision hereof
limits, qualifies or conflicts with a provision of the Trust Indenture Act that
is required under such Act to be part of and govern this Supplemental Indenture,
the latter provision shall control. If any provision of this Supplemental
Indenture modifies or excludes any provision of the Trust Indenture Act that may
be so modified or excluded, the latter provision shall be deemed to apply to
this Supplemental Indenture as so modified or to be excluded, as the case may
be.
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SECTION 2.5 Successors and Assigns. All covenants and agreements in
this Supplemental Indenture by the Company or any Subsidiary Guarantor shall
bind its respective successors and assigns, whether so expressed or not.
SECTION 2.6 Separability Clause. In case any provisions in this
Supplemental Indenture shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 2.7 Benefits of Supplemental Indenture. Nothing in this
Supplemental Indenture, express or implied, shall give to any Person, other than
the parties hereto, and their successors hereunder and the Holders of
Securities, any benefit or any legal or equitable right, remedy or claim under
this Supplemental Indenture.
SECTION 2.8 GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties have caused this Supplemental Indenture
to be duly executed, and their respective corporate seals to be hereunder
affixed and attested, all as of the date and year first above written.
Attest: X. X. XXXXXXXXXX & CO., INC.
By:
------------------------------------ --------------------------------
Name: X.X. Xxxxxxx
Title: V.P.
Attest: XXXXXX TRAILER MFG. CO.
By:
------------------------------------ --------------------------------
Name: X.X. Xxxxxxx
Title: V.P.
Attest: TRUCK ACCESSORIES GROUP, INC.
By:
------------------------------------ --------------------------------
Name: X.X. Xxxxxxx
Title: V.P.
Attest: EFP CORPORATION
By:
------------------------------------ --------------------------------
Name: X.X. Xxxxxxx
Title: V.P.
Attest: MAGNETIC INSTRUMENTS CORP.
By:
------------------------------------ --------------------------------
Name: X.X. Xxxxxxx
Title: V.P.
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Attest: XXXX GROUP, INC.
By:
------------------------------------ --------------------------------
Name: X.X. Xxxxxxx
Title: V.P.
Attest: RAIDER INDUSTRIES, INC.
a Saskatchewan corporation
By:
------------------------------------ --------------------------------
Name: X.X. Xxxxxxx
Title: V.P.
Attest: SWK HOLDINGS, INC.
By:
------------------------------------ --------------------------------
Name: X.X. Xxxxxxx
Title: V.P.
Attest: UNIVERSAL XXXXXXX, INC.
By:
------------------------------------ --------------------------------
Name: X.X. Xxxxxxx
Title: V.P.
Attest: XXXXXX TRAILER FINANCIAL CORPORATION
By:
------------------------------------ --------------------------------
Name:
------------------------------
Title:
-----------------------------
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Attest: XXXXXX TRAILER FINANCIAL
MANAGEMENT, L.P.
By: XXXXXX TRAILER MFG. CO.,
ITS GENERAL PARTNER
By:
------------------------------------ --------------------------------
Name: X.X. Xxxxxxx
Title: V.P.
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Attest: THE BANK OF NEW YORK
By:
------------------------------------ --------------------------------
Name:
------------------------------
Title:
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STATE OF TEXAS }
} SS.
COUNTY OF XXXXXX }
On the _________ day of February 2003, before me personally came
_____________, to me known, who, being by me duly sworn, did depose and say that
he is ____________ of X. X. Xxxxxxxxxx & Co., Inc., one of the corporations
described in and which executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
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Notary Public
STATE OF TEXAS }
} SS.
COUNTY OF XXXXXX }
On the _________ day of February 2003, before me personally came
_____________, to me known, who, being by me duly sworn, did depose and say that
he is _____________ of Xxxxxx Trailer Mfg. Co., one of the corporations
described in and which executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
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Notary Public
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STATE OF TEXAS }
} SS.
COUNTY OF XXXXXX }
On the _________ day of February 2003, before me personally came
_____________, to me known, who, being by me duly sworn, did depose and say that
he is _____________ of Truck Accessories Group, Inc., formerly known as Leer
Inc., one of the corporations described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that the seal affixed to
said instrument is such corporate seal; that it was so affixed by authority of
the Board of Directors of said corporation, and that he signed his name thereto
by like authority.
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Notary Public
STATE OF TEXAS }
} SS.
COUNTY OF XXXXXX }
On the _________ day of February 2003, before me personally came
_____________, to me known, who, being by me duly sworn, did depose and say that
he is _____________ of Xxxx Group, Inc., one of the corporations described in
and which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
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Notary Public
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STATE OF TEXAS }
} SS.
COUNTY OF XXXXXX }
On the ________ day of February 2003, before me personally came
_____________, to me known, who, being by me duly sworn, did depose and say that
he is _____________ of EFP Corporation, one of the corporations described in and
which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
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Notary Public
STATE OF TEXAS }
} SS.
COUNTY OF XXXXXX }
On the ________ day of February 2003, before me personally came
_____________, to me known, who, being by me duly sworn, did depose and say that
he is _____________ of Magnetic Instruments Corp., one of the corporations
described in and which executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
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Notary Public
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STATE OF TEXAS }
} SS.
COUNTY OF XXXXXX }
On the ________ day of February 2003, before me personally came
_____________, to me known, who, being by me duly sworn, did depose and say that
he is _____________ of SWK Holdings, Inc., formerly known as KWS Manufacturing
Company, Inc., one of the corporations described in and which executed the
foregoing instrument; that he knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation, and that he signed his
name thereto by like authority.
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Notary Public
STATE OF TEXAS }
} SS.
COUNTY OF XXXXXX }
On the ________ day of February 2003, before me personally came
____________, to me known, who, being by me duly sworn, did depose and say that
he is ____________ of Raider Industries Inc., one of the corporations described
in and which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and he signed his name thereto by like authority.
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Notary Public
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STATE OF TEXAS }
} SS.
COUNTY OF XXXXXX }
On the ________ day of February 2003, before me personally came
____________, to me known, who, being by me duly sworn, did depose and say that
he is ____________ of Universal Xxxxxxx, Inc., one of the corporations described
in and which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and he signed his name thereto by like authority.
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Notary Public
STATE OF TEXAS }
} SS.
COUNTY OF XXXXXX }
On the ________ day of February 2003, before me personally came
____________, to me known, who, being by me duly sworn, did depose and say that
he is ____________ of Xxxxxx Trailer Mfg. Co., a New Jersey corporation and the
general partner of Xxxxxx Trailer Financial Management, L.P., one of the legal
entities described in and which executed the foregoing instrument; that he knows
the seal of said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board of Directors of
said corporation, and he signed his name thereto by like authority.
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Notary Public
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STATE OF OREGON }
} SS.
COUNTY OF CLACKAMAS }
On the ________ day of February 2003, before me personally came
____________, to me known, who, being by me duly sworn, did depose and say that
he is ____________ of Xxxxxx Trailer Financial Management Corporation, one of
the corporations described in and which executed the foregoing instrument; that
he knows the seal of said corporation; that the seal affixed to said instrument
is such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and he signed his name thereto by like authority.
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Notary Public
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STATE OF NEW YORK }
} SS.
COUNTY OF NEW YORK }
On the ________ day of February 2003, before me personally came
_______________ to me known, who, being by me duly sworn, did depose and say
that [he - she] is _____________________ of The Bank of New York, one of the
corporations described in and which executed the foregoing instrument; that
[he - she] knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that [he-she] signed his name
thereto by like authority.
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Notary Public
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