This excerpt taken from the XRIT 8-K filed Aug 20, 2009.
Section 12. Miscellaneous.
(a) Registration of Transfer. The Corporation shall keep at its principal office a register for the registration of Series A Preferred Shares. Upon the surrender of any certificate representing Series A Preferred Shares at such place, the Corporation shall, at the request of the record holder of such certificate, execute and deliver (at the Corporations expense) a new certificate or certificates in exchange therefor representing in the aggregate the number of Series A Preferred Shares represented by the surrendered certificate. Each such new certificate shall be registered in such name and shall represent such number of Series A Preferred Shares as is requested by the holder of the surrendered certificate and shall be substantially identical in form to the surrendered certificate, and dividends shall accrue on the Series A Preferred Shares represented by such new certificate from the date to which dividends have been fully paid on such Series A Preferred Shares represented by the surrendered certificate.
(b) Replacement. Upon receipt of evidence reasonably satisfactory to the Corporation (an affidavit of the registered Holder shall be satisfactory) of the ownership and the loss, theft, destruction or mutilation of any certificate evidencing Series A Preferred Shares or in the case of any such mutilation upon surrender of such original certificate, the Corporation shall (at its expense) execute and deliver in lieu of such certificate a new certificate of like kind representing the number of Series A Preferred Shares represented by such lost, stolen, destroyed or mutilated certificate and dated the date of such lost, stolen, destroyed or mutilated certificate, and dividends shall accrue on the Series A Preferred Shares represented by such new certificate from the date of issuance.
(i) Notices Generally. Except as otherwise expressly provided hereunder, all notices referred to herein shall be in writing and shall be delivered by registered or certified mail, return receipt requested and postage prepaid, or by reputable overnight courier service, charges prepaid, and shall be deemed to have been given when so mailed or sent (i) to the Corporation, at its principal executive offices and (ii) to any Holder, at such Holders address as it appears in the books and records of the Corporation (unless otherwise indicated by any such holder in writing), and copy of which shall be contemporaneously provided to such other Persons as may be identified in writing by the Holder (and in the case of the Initial Holders, to such Persons identified, with respect to each Initial Holder, in the Exchange Agreement) (unless otherwise indicated by any such Holder in writing).
(ii) Notice of Adjustment. Whenever the Participation Amount Multiplier is adjusted, as herein provided, the Corporation shall deliver to the Holders a certificate of its Chief Financial Officer setting forth, in reasonable detail, the event requiring the adjustment and the method by which such adjustment was calculated (including a description of the basis on which (i) the Board of Directors determined the then fair value of any subscription or purchase rights and (ii) the Fair Market Value of the Common Stock was determined, if such determination was required) and specifying the Participation Amount Multiplier after giving effect to such adjustment. Notwithstanding the foregoing, if the Majority Holders object to the Participation Amount Multiplier (after giving effect to the proposed adjustment) set forth in the certificate provided by the Corporations Chief Financial Officer, the Corporation shall promptly obtain a certificate of a firm of independent accounts selected by the Board of Directors (who may, to the extent it would not compromise its independence, be the regular accountants employed by the Corporation) setting forth the same information and detail as required in the immediately preceding sentence, and such certificate shall be used for the basis to effect the applicable adjustment to the Participation Amount Multiplier.
(iii) Notice of Certain Transactions. In the event the Corporation shall propose to (a) distribute any dividend (other than ordinary cash dividends) or other distribution to all holders of its Common Stock or options, warrants or other rights to receive such dividend or distribution, (b) offer to all holders of its Common Stock rights to subscribe for or to purchase any securities convertible into shares of Common Stock or shares of stock of any class or any other securities, rights or options, (c) effect any capital reorganization, reclassification, consolidation or merger, or (d) effect the voluntary or involuntary dissolution, liquidation or winding-up of the Corporation, the Corporation shall promptly send to the Holders a notice of such proposed action or offer at their addresses as they appear in the books and records of the Corporation, which shall specify the record date for the purposes of such dividend, distribution or rights, or the date such issuance or event is to take place and the date of participation therein by the holders of Common Stock, if any such date is to be fixed, and shall briefly indicate the effect, if any, of such action on the Common Stock and on the Participation Amount Multiplier after giving effect to any such adjustment pursuant to Section 10 which will be required as a result of such action. Such notice shall be given as promptly as possible and, in any case, at least fourteen (14) days prior to the date of the taking of such action, or participation therein, by the holders of Common Stock.
(iv) Notice of Default. The Corporation shall deliver to each Holder a certificate of an authorized officer of the Corporation (Notice of Default), (i) promptly (and in any event, within five (5) Business Days) upon any senior officer of the Corporation obtaining knowledge of any condition or event that constitutes a Fundamental Change or Event of Default, or that a notice has been given to the Corporation with respect thereto, and/or (ii) concurrently with the delivery of any notice of default as the Corporation may otherwise be required to deliver to any Person pursuant to Section 5.1(f) of the Existing Second Lien Credit Agreement or the Modified Second Lien Credit Agreement. The Notice of Default shall specify the nature and period of existence of such condition, event or change, or specifying the notice given and action taken by any such Person and the nature of such claimed Significant Event of Default or Event of Default, default, event or condition.
(d) Tax Matters. (i) The Corporation shall pay any and all stock transfer and documentary stamp taxes that may be payable in respect of any issuance or delivery of Series A Preferred Shares or shares of Common Stock issued on account of Series A Preferred Shares pursuant hereto or certificates representing such shares or securities. The Corporation shall not, however, be required to pay any such tax that may be payable in respect of any transfer involved in the issuance or delivery of securities in a
name other than that in which the Series A Preferred Shares or shares of Common Stock with respect to which such shares or other securities are issued or delivered were registered, or in respect of any payment to any Person other than a payment to the registered holder thereof, and shall not be required to make any such issuance, delivery or payment unless and until the Person otherwise entitled to such issuance, delivery or payment has paid to the Corporation the amount of any such tax or has established, to the satisfaction of the Corporation, that such tax has been paid or is not payable.
(ii) The Corporation and the Initial Holders agree to treat the modification of the terms of the Series A Preferred Stock pursuant to a Trigger Event as a non-taxable exchange and the Series A Preferred as equity for U.S. federal income tax purposes, and agree not to treat the Series A Preferred as preferred stock as defined in Treasury Regulation Section 1.305-5(a) following a Trigger Event.
(e) Amendment and Waiver. Subject to Sections 9(d) and 9(e), no amendment, modification or waiver shall be binding or effective with respect to any provision of this Certificate without the prior written consent of the Majority Holders at the time such action is taken.
(f) Sections. Unless otherwise indicated, references to Sections or clauses in this Certificate refer to the numbered sections and/or clauses contained herein.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, I have executed and subscribed this Certificate and do affirm the foregoing as true as of this 18th day of August, 2009.