ex41_indenture






Exhibit 4.1            INDENTURE  Dated as of May 26, 2021  Among  ATKORE INC.  THE SUBSIDIARY GUARANTORS PARTY HERETO  and  THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,  as Trustee  4.25% SENIOR NOTES DUE 2031      





 






i    TABLE OF CONTENTS   Page  ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE ................................................................. 1  SECTION 1.1. Definitions ..................................................................................................................... 1  SECTION 1.2. Other Definitions. ........................................................................................................ 29  SECTION 1.3. Rules of Construction. ................................................................................................. 29  SECTION 1.4. Certain Financial Tests and Calculations. .................................................................... 30  ARTICLE II THE NOTES .......................................................................................................................................... 31  SECTION 2.1. Form and Dating. ......................................................................................................... 31  SECTION 2.2. Execution and Authentication. ..................................................................................... 32  SECTION 2.3. Registrar; Paying Agent. .............................................................................................. 32  SECTION 2.4. Paying Agent to Hold Money in Trust. ........................................................................ 32  SECTION 2.5. Holder Lists. ................................................................................................................ 32  SECTION 2.6. Book-Entry Provisions for Global Notes. .................................................................... 33  SECTION 2.7. Replacement Notes. ..................................................................................................... 35  SECTION 2.8. Outstanding Notes. ...................................................................................................... 35  SECTION 2.9. Treasury Notes. ............................................................................................................ 35  SECTION 2.10. Temporary Notes. ........................................................................................................ 35  SECTION 2.11. Cancellation. ................................................................................................................ 36  SECTION 2.12. Defaulted Interest. ....................................................................................................... 36  SECTION 2.13. Computation of Interest. .............................................................................................. 36  SECTION 2.14. CUSIP and ISIN Numbers. .......................................................................................... 36  SECTION 2.15. Transfer and Exchange. ............................................................................................... 36  SECTION 2.16. Issuance of Additional Notes. ...................................................................................... 38  ARTICLE III REDEMPTION AND PREPAYMENT ................................................................................................ 38  SECTION 3.1. Notices to Trustee. ....................................................................................................... 38  SECTION 3.2. Selection of Notes to Be Redeemed. ........................................................................... 39  SECTION 3.3. Notice of Redemption. ................................................................................................. 39  SECTION 3.4. Effect of Notice of Redemption. .................................................................................. 40  SECTION 3.5. Deposit of Redemption Price. ...................................................................................... 40  SECTION 3.6. Notes Redeemed in Part. ............................................................................................. 40  SECTION 3.7. Optional Redemption. .................................................................................................. 40  ARTICLE IV COVENANTS ...................................................................................................................................... 41  SECTION 4.1. Payment of Notes......................................................................................................... 41  SECTION 4.2. Maintenance of Office or Agency. .............................................................................. 41  SECTION 4.3. Provision of Financial Information. ............................................................................. 42  SECTION 4.4. Compliance Certificate. ............................................................................................... 43  SECTION 4.5. Reserved. ..................................................................................................................... 43  SECTION 4.6. Stay, Extension and Usury Laws. ................................................................................ 43  SECTION 4.7. Limitation on Restricted Payments. ............................................................................. 43  SECTION 4.8. Limitation on Dividend and Other Restrictions Affecting Restricted Subsidiaries. .... 47  SECTION 4.9. Limitation on Debt....................................................................................................... 49  SECTION 4.10. Limitation on Asset Dispositions. ................................................................................ 53  SECTION 4.11. Limitation on Transactions with Affiliates. ................................................................. 55  SECTION 4.12. Limitation on Liens. .................................................................................................... 57  SECTION 4.13. Offer to Purchase upon Change of Control. ................................................................ 57  SECTION 4.14. Corporate Existence. .................................................................................................... 58  SECTION 4.15. Future Guarantees. ....................................................................................................... 58  SECTION 4.16. Designation of Restricted and Unrestricted Subsidiaries. ............................................ 58  SECTION 4.17. Covenant Suspension. .................................................................................................. 59  ARTICLE V SUCCESSORS ...................................................................................................................................... 60  SECTION 5.1. Consolidation, Merger, Conveyance, Transfer or Lease. ............................................ 60  





 






ii    ARTICLE VI DEFAULTS AND REMEDIES ........................................................................................................... 62  SECTION 6.1. Events of Default ......................................................................................................... 62  SECTION 6.2. Acceleration ................................................................................................................. 64  SECTION 6.3. Other Remedies ........................................................................................................... 64  SECTION 6.4. Waiver of Past Defaults ............................................................................................... 65  SECTION 6.5. Control by Majority ..................................................................................................... 65  SECTION 6.6. Limitation on Suits ...................................................................................................... 65  SECTION 6.7. Rights of Holders of Notes to Receive Payment ......................................................... 65  SECTION 6.8. Collection Suit by Trustee ........................................................................................... 65  SECTION 6.9. Trustee May File Proofs of Claim ............................................................................... 65  SECTION 6.10. Priorities ...................................................................................................................... 66  SECTION 6.11. Undertaking for Costs .................................................................................................. 66  SECTION 6.12. Restoration of Rights and Remedies ............................................................................ 66  SECTION 6.13. Rights and Remedies Cumulative ................................................................................ 66  SECTION 6.14. Delay or Omission Not Waiver ................................................................................... 66  ARTICLE VII TRUSTEE ........................................................................................................................................... 67  SECTION 7.1. Duties of Trustee. ........................................................................................................ 67  SECTION 7.2. Rights of Trustee. ........................................................................................................ 67  SECTION 7.3. Individual Rights of the Trustee .................................................................................. 69  SECTION 7.4. Trustee’s Disclaimer .................................................................................................... 69  SECTION 7.5. Notice of Defaults ........................................................................................................ 69  SECTION 7.6. Compensation and Indemnity ...................................................................................... 70  SECTION 7.7. Replacement of Trustee ............................................................................................... 70  SECTION 7.8. Successor Trustee by Merger, Etc. .............................................................................. 71  SECTION 7.9. Eligibility; Disqualification ......................................................................................... 71  ARTICLE VIII DEFEASANCE; DISCHARGE OF THIS INDENTURE ................................................................. 71  SECTION 8.1. Option to Effect Legal Defeasance or Covenant Defeasance ...................................... 71  SECTION 8.2. Legal Defeasance ......................................................................................................... 71  SECTION 8.3. Covenant Defeasance .................................................................................................. 72  SECTION 8.4. Conditions to Legal or Covenant Defeasance .............................................................. 72  SECTION 8.5. Deposited Money and U.S. Government Obligations to Be Held in Trust; Other  Miscellaneous Provisions ............................................................................................ 73  SECTION 8.6. Repayment to Company .............................................................................................. 73  SECTION 8.7. Reinstatement .............................................................................................................. 74  SECTION 8.8. Discharge ..................................................................................................................... 74  ARTICLE IX AMENDMENT, SUPPLEMENT AND WAIVER .............................................................................. 75  SECTION 9.1. Without Consent of Holders of the Notes .................................................................... 75  SECTION 9.2. With Consent of Holders of Notes ............................................................................... 76  SECTION 9.3. Revocation and Effect of Consents .............................................................................. 76  SECTION 9.4. Notation on or Exchange of Notes ............................................................................... 76  SECTION 9.5. Trustee to Sign Amendments, Etc. .............................................................................. 77  ARTICLE X NOTE GUARANTEES ......................................................................................................................... 77  SECTION 10.1. Note Guarantees .......................................................................................................... 77  SECTION 10.2. Execution and Delivery of Guarantee .......................................................................... 78  SECTION 10.3. Severability .................................................................................................................. 78  SECTION 10.4. Limitation of Subsidiary Guarantors’ Liability ........................................................... 78  SECTION 10.5. Releases ....................................................................................................................... 78  SECTION 10.6. Benefits Acknowledged ............................................................................................... 79  ARTICLE XI MISCELLANEOUS ............................................................................................................................. 79  SECTION 11.1. Notices ......................................................................................................................... 79  SECTION 11.2. Certificate and Opinion as to Conditions Precedent .................................................... 80  SECTION 11.3. Statements Required in Certificate or Opinion ............................................................ 81  SECTION 11.4. Rules by Trustee and Agents ....................................................................................... 81  





 






iii    SECTION 11.5. No Personal Liability of Directors, Officers, Employees and Stockholders ................ 81  SECTION 11.6. Governing Law; Consent to Jurisdiction; Waiver of Jury Trial ................................... 81  SECTION 11.7. No Adverse Interpretation of Other Agreements ......................................................... 81  SECTION 11.8. Successors.................................................................................................................... 81  SECTION 11.9. Severability .................................................................................................................. 81  SECTION 11.10. Execution in Counterparts ........................................................................................... 82  SECTION 11.11. Table of Contents, Headings, Etc. ............................................................................... 82  SECTION 11.12. Acts of Holders ............................................................................................................ 82  SECTION 11.13. Force Majeure .............................................................................................................. 84  SECTION 11.14. Legal Holidays ............................................................................................................. 84  SECTION 11.15. USA PATRIOT Act..................................................................................................... 84  SECTION 11.16. OFAC.. ........................................................................................................................ 84    Exhibits  Exhibit A  Form of Note  Exhibit B  Form of Supplemental Indenture to be Delivered by Subsequent Subsidiary Guarantors  Exhibit C Form of Certificate to be Delivered in Connection with Transfers Pursuant to Regulation S  Exhibit D Form of Certificate to be Delivered in Connection with Transfers to IAIs  





 






  This Indenture, dated as of May 26, 2021, is by and among Atkore Inc., a Delaware corporation (collectively  with successors and assigns, the “Company”), the Subsidiary Guarantors party hereto and The Bank of New York  Mellon Trust Company, N.A., as Trustee (the “Trustee”), paying agent and registrar.  The Company, the Subsidiary Guarantors and the Trustee agree as follows for the benefit of each other and  for the equal and ratable benefit of the Holders (as defined herein) of (i) the Company’s 4.25% Senior Notes due 2031  to be issued in an initial aggregate principal amount of $400.0 million on the date hereof (the “Initial Notes”) and (ii)  any Additional Notes (as defined herein):  ARTICLE I  DEFINITIONS AND INCORPORATION BY REFERENCE  SECTION 1.1. Definitions.  “ABL Credit Facility” means the Amended and Restated Credit Agreement, dated as of August 28, 2020, as  amended through the date hereof, among Atkore International, Inc., the other borrowers party thereto from time to  time, the lenders and other financial institutions party thereto from time to time and Wells Fargo Bank, National  Association, as swingline lender, issuing lender, administrative agent and collateral agent thereunder, any notes and  letters of credit issued pursuant thereto and any guarantee and collateral agreement, patent and trademark security  agreement, mortgages, letter of credit applications and other guarantees, pledge agreements, security agreements and  collateral documents, and other instruments and documents, executed and delivered pursuant to or in connection with  any of the foregoing, in each case as the same may be amended, supplemented, waived or otherwise modified from  time to time, or refunded, refinanced, restructured, replaced, renewed, repaid, increased or extended from time to time  (whether in whole or in part, whether with the original agent and lenders or other agents and lenders or otherwise, and  whether provided under the original Credit Agreement or one or more other credit agreements, indentures or financing  agreements or otherwise, unless such agreement, instrument or document expressly provides that it is not intended to  be and is not an ABL Credit Facility). Without limiting the generality of the foregoing, the term “ABL Credit Facility”  shall include any agreement (i) changing the maturity of any Debt Incurred thereunder or contemplated thereby, (ii)  adding Subsidiaries of Atkore International, Inc. as additional borrowers or guarantors thereunder, (iii) increasing the  amount of Debt Incurred thereunder or available to be borrowed thereunder or (iv) otherwise altering the terms and  conditions thereof.   “Additional Notes” means Notes (other than the Initial Notes) issued pursuant to Article II and otherwise in  compliance with the provisions of this Indenture, whether or not they bear the same CUSIP or ISIN number as the  Initial Notes.  “Affiliate” of any Person means any other Person directly or indirectly controlling or controlled by or under  direct or indirect common control with such Person. For the purposes of this definition, “control” when used with  respect to any Person means the power to direct the management and policies of such Person, directly or indirectly,  whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and  “controlled” have meanings correlative to the foregoing.  “Agent” means any Registrar, Paying Agent, co-registrar or other agent appointed pursuant to this Indenture.  “amend” means to amend, supplement, restate, amend and restate or otherwise modify, including  successively, and “amendment” shall have a correlative meaning.  “Applicable Premium” means, with respect to any Note on any applicable redemption date, the greater of:    (1) 1.0% of the then outstanding principal amount of such Note; and    (2) the excess, if any, of:   (a) the present value at such redemption date of the sum of (i) the redemption price  of such Note at June 1, 2026 (such redemption price being set forth in the table appearing in Section  





 






2    3.7(b)) plus (ii) all required interest payments due on such Note through June 1, 2026 (excluding  accrued but unpaid interest), such present value to be computed using a discount rate equal to the  Treasury Rate as of such redemption date plus 50 basis points; over     (b) the then outstanding principal amount of such Note.   “Asset Disposition” means any transfer, conveyance, sale, lease or other disposition (but excluding the  creation of any Lien permitted under Section 4.12 or any disposition in connection therewith) by the Company or any  of its Restricted Subsidiaries (including a consolidation or merger or other sale of any such Restricted Subsidiary with,  into or to another Person in a transaction in which such Restricted Subsidiary ceases to be a Restricted Subsidiary, but  excluding any disposition by a Restricted Subsidiary to the Company or another Restricted Subsidiary or by the  Company to a Restricted Subsidiary) of:  (1) shares of Capital Stock (other than directors’ qualifying shares or, in the case of a Foreign  Subsidiary, as may be required to comply with local law) or other ownership interests of a Restricted  Subsidiary of such Person;  (2) substantially all of the assets of such Person or any of its Restricted Subsidiaries  representing a division or line of business; or  (3) other assets or rights of such Person or any of its Restricted Subsidiaries.   The term “Asset Disposition” shall not include any transfer, conveyance, sale, lease or other disposition:  (a) that consists of a Restricted Payment or Permitted Investment that is made in compliance  with Section 4.7;  (b) that constitutes a Change of Control;  (c) that is of cash or Cash Equivalents in the ordinary course of business;  (d) that consists of property or assets that are (i) obsolete, worn out or surplus property,  whether now owned or hereafter acquired, in the ordinary course of business or (ii) no longer used or useful  or economically practicable to maintain in the conduct of the business of the Company and the Restricted  Subsidiaries;  (e) that is of inventory and immaterial assets in the ordinary course of business (including  allowing any registrations or any applications for registration of any immaterial intellectual property rights  to lapse or go abandoned in the ordinary course of business);  (f) that is of property to the extent that (i) such property is exchanged for credit against the  purchase price of similar replacement property that is promptly purchased, (ii) the proceeds of such  disposition are promptly applied to the purchase price of such replacement property (which replacement  property is actually promptly purchased) or (iii) such property is built or acquired by the Company or any  Restricted Subsidiary after the Issue Date, including any sale/leaseback transaction or asset securitization;  (g) that consists of leases, subleases, licenses, sublicenses or other grant of rights (including,  without limitation, with respect to any trademark, copyright, patent or other intellectual property), in each  case in the ordinary course of business and which do not materially interfere with the business of the  Company and the Restricted Subsidiaries, taken as a whole;  (h) that is subject to any event that gives rise to the receipt by the Company or any Restricted  Subsidiary of any insurance proceeds or condemnation awards in respect of any equipment, fixed assets or  





 






3    real property (including any improvements thereon) to replace or repair such equipment, fixed assets or real  property;  (i) that consists of Investments in JV Entities or non-Wholly Owned Restricted Subsidiaries  to the extent required by, or made pursuant to, customary buy/sell arrangements between the parties to such  JV Entity or shareholders of such non-Wholly Owned Restricted Subsidiary set forth in the shareholders  agreements, joint venture agreements, organizational documents or similar binding agreements relating to  such JV Entity or non-Wholly Owned Restricted Subsidiary;  (j) that consists of accounts receivable in the ordinary course of business in connection with  the collection or compromise thereof or pursuant to factoring arrangements, in each case to the extent not  constituting a receivables financing;  (k) the unwinding of any Hedge Agreement pursuant to its terms;  (l) that constitutes the surrender or waiver of contractual rights and the settlement or waiver  of contractual or litigation claims in the ordinary course of business;  (m) that consists of non-core or obsolete assets acquired in connection with an acquisition that  is made in compliance with Section 4.7;  (n) consists of any swap of assets in exchange for services or other assets in the ordinary course  of business of comparable or greater Fair Market Value of usefulness to the business of the Company and  the Restricted Subsidiaries as a whole, as determined in good faith by the Company;  (o) that is of Capital Stock in, or Debt or other securities of, an Unrestricted Subsidiary;  (p) that is consummated in connection with a Permitted Tax Restructuring;  (q) in compliance with Section 5.1;  (r) that is related to a Financing Disposition;  (s) that is a disposition arising from foreclosure, condemnation, eminent domain, or similar  action with respect to any property or other assets, or exercise of termination rights under any lease, license,  concession or other agreement, or necessary or advisable (as determined by the Company in good faith) in  order to consummate any acquisition of any Person, business or assets;  (t) that is a disposition of Capital Stock of a Restricted Subsidiary pursuant to an agreement  or other obligation with or to a Person from whom such Restricted Subsidiary was acquired, or from whom  such Restricted Subsidiary acquired its business and assets (having been newly formed in connection with  such acquisition), entered into in connection with such acquisition;  (u) that is a disposition of not more than 5.0% of the outstanding Capital Stock of a Foreign  Subsidiary that has been approved by the Board of Directors;  (v) that is a sale, transfer, conveyance or other disposition of receivables pursuant to an  electronic payment service to facilitate the processing of receivables in connection with cash management of  the Company or any of its Restricted Subsidiaries; or  (w) that is a transaction or series of related transactions for which the aggregate consideration  does not exceed the greater of (i) $40.0 million and (ii) 2.25% of Consolidated Total Assets (as of the date  on which a binding commitment for such disposition was entered into).  





 






4    “Attributable Debt” in respect of a Sale Leaseback that results in a Capital Lease means, as at the time of  determination, the amount of Debt represented thereby, as determined in accordance with the definition of Capital  Lease Obligation.  “Average Life” means, as of any date of determination, with respect to any Debt, the quotient obtained by  dividing (1) the sum of the products of the number of years from such date of determination to the dates of each  successive scheduled principal payments of such Debt by the amount of each such principal payment by (2) the sum  of all such principal payments.  “Bankruptcy Law” means Title 11, U.S. Code or any similar federal, state or foreign law for the relief of  debtors, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium,  rearrangement, receivership, insolvency, reorganization, winding-up, restructuring, examinership or similar debtor  relief laws.  “Board of Directors” means, as to any Person, the Board of Directors, or similar governing body, of such  Person or any duly authorized committee thereof.  “Borrowing Base” means “Borrowing Base” as defined in the ABL Credit Agreement as of the Issue Date.  “Business Day” means each day that is not a Saturday, Sunday or other day on which banking institutions in  New York, New York, United States or in the jurisdiction of the place of payment are authorized or required by law  to close. When the payment of any obligation or the performance of any covenant, duty or obligation is stated to be  due or performance required on a day which is not a Business Day, the date of such payment or performance shall  extend to the immediately succeeding Business Day and such extension of time shall not be reflected in computing  interest or fees, as the case may be.  “Capital Lease” means any lease that is required to be, in accordance with GAAP, recorded as a capital lease  or financing lease; provided that for all purposes hereunder the amount of obligations under any Capital Lease shall  be the amount thereof accounted for as a liability in accordance with GAAP.  “Capital Lease Obligation” means, at the time any determination thereof is to be made, the amount of the  liability in respect of a Capital Lease that would at such time be required to be capitalized and reflected as a liability  on a balance sheet (excluding the footnotes thereto) prepared in accordance with GAAP.  “Capital Stock” of any Person means any and all shares, interests, participations, warrants, options or other  rights to acquire or other equivalents of or interests in (however designated) corporate stock or other equity  participations, including partnership interests, whether general or limited, of such Person, but in each case excluding  any debt security that is convertible or exchangeable for Capital Stock.  “Captive Insurance Subsidiary” means any Subsidiary of the Company that is subject to regulation as an  insurance company (or any Subsidiary thereof).  “Cash Equivalents” means:  (1) dollars and, in the case of Foreign Subsidiaries, the local currency where such Foreign  Subsidiary is operating;  (2) marketable obligations issued or unconditionally guaranteed by, and backed by the full  faith and credit of, the government of the United States, Canada, the United Kingdom or a member state of  the European Union or any agency or instrumentality thereof;  (3) certificates of deposit, time deposits and bankers’ acceptances maturing within 24 months  of the date of acquisition, and overnight bank deposits, in each case which are issued by any lender under  the Senior Secured Credit Facilities or any Affiliate thereof or any commercial bank having capital and  surplus in excess of $500.0 million (or the foreign currency equivalent thereof as of the date of acquisition)  





 






5    and the commercial paper of the holding company of which is rated A-2 (or better) by S&P or P-2 (or better)  by Moody’s at the time of acquisition (or, if at the time, neither S&P nor Moody’s is rating such obligations,  then a comparable rating from another Nationally Recognized Statistical Rating Organization selected by the  Company);  (4) repurchase obligations for underlying investments of the types described in clauses (2) and  (3) entered into with any financial institution described in clause (3);  (5) money market instruments, commercial paper or other short-term obligations rated A-2 (or  better) by S&P or P-2 (or better) by Moody’s (or, if at the time, neither S&P nor Moody’s is rating such  obligations, then a comparable rating from another Nationally Recognized Statistical Rating Organization  selected by the Company);  (6) investments in (i) any money market fund that has substantially all of its assets invested  continuously in the types of investments referred to above, in each case with any lender under the Senior  Secured Credit Facilities or any other commercial bank having capital and surplus of at least $500.0 million  (or the foreign currency equivalent thereof as of the date of acquisition) and has the highest rating obtainable  from either Moody’s or S&P and (ii) any money market fund subject to the risk limiting conditions of Rule  2a-7 or any successor rule of the SEC under the Investment Company Act of 1940, as amended; and  (7) Debt issued by Persons with a rating of “A” or higher from S&P or “A-2” or higher from  Moody’s (or, if at the time, neither S&P nor Moody’s is rating such obligations, then a comparable rating  from another Nationally Recognized Statistical Rating Organization selected by the Company), in each case  with maturities not exceeding 24 months from the date of acquisition.   “Cash Management Bank” means any financial institution providing treasury, depository, credit or  debit card, purchasing card and/or cash management services or automated clearing house transactions to the  Company or any Restricted Subsidiary or conducting any automated clearing house transfers of funds.  “Cash Management Obligations” means obligations owed by the Company or any Restricted  Subsidiary to any Cash Management Bank in respect of any Cash Management Services.  “Cash Management Services” means (1) commercial credit cards, merchant card services, purchase  or debit cards, stored value cards, including non-card e-payables services, (2) treasury management services  (including controlled disbursement, overdraft, automatic clearinghouse fund transfer services, return items,  netting zero balance arrangements, cash sweeps, depository, lockbox, stop payment, electronic funds  transfer, information reporting, temporary advances, wire transfer and interstate depository network services)  and (3) any other demand deposit or operating account relationships or other cash management services.  “Change of Control” means the occurrence of any of the following events:  (1) any Person or any Persons acting together that would constitute a “group” for purposes of  Section 13(d) of the Exchange Act, or any successor provision thereto, other than the Company, any  Subsidiary of the Company or any employee benefit plan of the Company or any such Subsidiary becomes  the beneficial owner (within the meaning of Rule 13d-3 under the Exchange Act, or any successor provision  thereto) of more than 50% of the aggregate voting power of all classes of Voting Stock of the Company,  except in a transaction in which the Company becomes a Wholly Owned Subsidiary of another Person and  in such transaction the Voting Stock of the Company outstanding immediately prior to such transaction is  converted into or exchanged for Voting Stock of such Person representing more than 50% of the voting  power of all classes of Voting Stock of such Person immediately after giving effect to such transaction;  (2) the sale, assignment, conveyance, transfer, lease or other disposition, in one or a series of  related transactions, of all or substantially all of the assets of the Company and its Restricted Subsidiaries  taken as a whole to any “person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act)  other than a Restricted Subsidiary; or  





 






6    (3) the adoption by the stockholders of the Company of a plan or proposal for the liquidation  or dissolution of the Company.  Notwithstanding the foregoing, a transaction effected to create a holding company of the Company, (a)  pursuant to which the Company becomes a Wholly Owned Subsidiary of such holding company, and (b) as a result  of which the holders of Capital Stock of such holding company are substantially the same as the holders of Capital  Stock of the Company immediately prior to such transaction, shall not be deemed to involve a “Change of Control;”  provided further that following such a holding company transaction, references in this definition of Change of Control  to the Company shall thereafter be treated as references to such holding company.  “Commodities Agreement” means in respect of a Person, any commodity futures contract, forward contract,  option or similar agreement or arrangement (including derivative agreements or arrangements), as to which such  Person is a party or beneficiary.  “Consolidated Coverage Ratio” means, as of any date of determination, the ratio of (1) Consolidated  EBITDA of the Company for the Test Period to (2) Consolidated Fixed Charges of the Company for such Test Period.  The Consolidated Coverage Ratio shall be calculated on a Pro Forma Basis.  “Consolidated EBITDA” means, with respect to any Person for any period, the Consolidated Net Income of  such Person (and with respect to the Company and its Restricted Subsidiaries, such Persons on a consolidated basis)  for such period plus (x) the following to the extent deducted in calculating such Consolidated Net Income, without  duplication:  (1) provision for all taxes (whether or not paid, estimated or accrued) based on income, profits or capital  (including penalties and interest, if any),  (2) Consolidated Interest Expense, all items excluded from the definition of Consolidated Interest  Expense pursuant to clause (iii) thereof (other than Special Purpose Financing Expense), any Special Purpose  Financing Fees, and to the extent not reflected in Consolidated Interest Expense, costs of surety bonds in connection  with financing activities,  (3) depreciation,  (4) amortization (including, but not limited to, amortization of goodwill and intangibles and  amortization and write-off of financing costs),  (5) any non-cash charges or non-cash losses (provided that if any such non-cash charges represent an  accrual or reserve for potential cash items in any future period, (A) the Company may elect not to add back such non- cash charge in the current period and (B) to the extent the Company elects to add back such non-cash charge, the cash  payment in respect thereof in such future period shall be subtracted from Consolidated EBITDA to such extent),  (6) any expenses or charges related to any equity offering, Investment or Debt permitted pursuant to  this Indenture (whether or not consummated or Incurred),  (7) the amount of any loss attributable to non-controlling interests,  (8) all deferred financing costs written off and premiums paid in connection with any early  extinguishment of Hedging Obligations or other derivative instruments,  (9) the amount of loss on any Financing Disposition,  (10) expenses or charges incurred in respect of restructuring initiatives, cost savings initiatives and other  similar initiatives, and  





 






7    (11) any costs or expenses pursuant to any management or employee stock option or other equity-related  plan, program or arrangement, or other benefit plan, program or arrangement, or any equity subscription or  equityholder agreement, to the extent funded with cash proceeds of any capital contribution to the Company or any  Subsidiary Guarantor or an issuance of Capital Stock of the Company or any Subsidiary Guarantor (other than  Disqualified Capital Stock) and excluded from the calculation set forth in Section 4.7(a)(4)(iii)(2), plus  (y) pro forma adjustments, including pro forma “run rate” cost savings, operating expense reductions,  operating improvements and other synergies related to merger and other business combinations, acquisitions,  dispositions, restructurings, cost savings initiatives and other similar initiatives calculated on a Pro Forma Basis as  though such cost savings, operating expense reductions, operating improvements and other synergies had been realized  on the first day of such period, net of the amount of actual benefits realized prior to or during such period from such  actions; provided that (A) (i) such pro forma adjustments are reasonably identifiable, reasonably attributable to the  actions specified and reasonably anticipated to result from such actions and (ii) such actions have been taken or are to  be taken within 18 months of the event giving rise thereto and (B) the aggregate increase to Consolidated EBITDA  for any period pursuant to this clause (y) shall not exceed 25.0% of Consolidated EBITDA (calculated before giving  effect to any such addback) for such period.  “Consolidated First Lien Net Leverage Ratio” means, as of any date of determination, the ratio of (1)  Consolidated Total Net Debt that is Secured Debt of the Company and its Restricted Subsidiaries secured on a first  lien basis as of such date to (2) Consolidated EBITDA of the Company for the Test Period. The Consolidated First  Lien Net Leverage Ratio shall be calculated on a Pro Forma Basis.  “Consolidated Fixed Charges” means, with respect to any Person for any period (and with respect to the  Company and its Restricted Subsidiaries, such Persons on a consolidated basis), without duplication, the sum of:   (1) Consolidated Interest Expense for such period; plus   (2) Disqualified Capital Stock Dividends paid, accrued or scheduled to be paid or accrued  during such period, excluding dividends paid in Capital Stock that is not Disqualified Capital Stock; plus   (3) Preferred Stock Dividends paid, accrued or scheduled to be paid or accrued during such  period, excluding dividends paid in Capital Stock that is not Disqualified Capital Stock.   “Consolidated Interest Expense” means, for any period, (i) the total interest expense of the Company and its  Restricted Subsidiaries to the extent deducted in calculating Consolidated Net Income, net of any interest income of  the Company and its Restricted Subsidiaries, including any such interest expense consisting of (A) interest expense  attributable to Capital Lease Obligations (excluding, for the avoidance of doubt, any lease, rental or other expense in  connection with a lease that is not a Capital Lease Obligation), (B) amortization of debt discount, (C) interest in respect  of Debt of any other Person that has been Guaranteed by the Company or any Restricted Subsidiary, but only to the  extent that such interest is actually paid by the Company or any Restricted Subsidiary, (D) non-cash interest expense,  (E) the interest portion of any deferred payment obligation, and (F) commissions, discounts and other fees and charges  owed with respect to letters of credit and bankers’ acceptance financing, plus (ii) Preferred Stock Dividends paid in  cash in respect of Disqualified Capital Stock of the Company or any Restricted Subsidiary held by Persons other than  the Company or any Restricted Subsidiary, minus (iii) to the extent otherwise included in such interest expense referred  to in clause (i) above, Special Purpose Financing Expense, accretion or accrual of discounted liabilities not constituting  Debt, expense resulting from discounting of Debt in conjunction with recapitalization or purchase accounting, any  “additional interest” in respect of registration rights arrangements for any securities, amortization or write-off of  financing costs, and any expensing of bridge, commitment or other financing fees in each case under clauses (i)  through (iii) above as determined on a consolidated basis in accordance with GAAP; provided that total interest  expense shall be determined after giving effect to any net payments made or received by the Company and its  Restricted Subsidiaries with respect to Interest Rate Agreements.  “Consolidated Net Income” means for any period, the net income (loss) of the Company and the Restricted  Subsidiaries, determined on a consolidated basis in accordance with GAAP and before any reduction in respect of  Preferred Stock Dividends; provided that, without duplication, there shall not be included in such Consolidated Net  Income:  





 






8    (1) any net income (loss) of any Person if such Person is not the Company or a Restricted  Subsidiary, except that (A) the Company’s and any Restricted Subsidiary’s net income for such period shall  be increased by the aggregate amount actually dividended or distributed or that (as determined by the  Company in good faith) could have been dividended or distributed by such Person during such period to the  Company or a Restricted Subsidiary as a dividend or other distribution (subject, in the case of a dividend or  other distribution to a Restricted Subsidiary, to the limitations contained in clause (2) below), to the extent  not already included therein, and (B) the Company or any Restricted Subsidiary’s equity in the net loss of  such Person shall be included to the extent of the aggregate Investment of the Company or any Restricted  Subsidiary in such Person;  (2) solely for purposes of determining the amount available for Restricted Payments under  Section 4.7(a)(4)(iii), any net income (loss) of any Restricted Subsidiary that is not a Subsidiary Guarantor  if such Restricted Subsidiary is subject to restrictions on the payment of dividends or the making of similar  distributions by such Restricted Subsidiary to the Company or another Restricted Subsidiary by operation of  the terms of such Restricted Subsidiary’s charter or any agreement, instrument, judgment, decree, order,  statute or governmental rule or regulation applicable to such Restricted Subsidiary or its stockholders (other  than (x) restrictions that have been waived or otherwise released, (y) restrictions pursuant to this Indenture  or the Senior Secured Credit Facilities and (z) restrictions in effect on the Issue Date with respect to a  Restricted Subsidiary and other restrictions with respect to such Restricted Subsidiary that taken as a whole  are not materially less favorable to the Holders than such restrictions in effect on the Issue Date as determined  by the Company in good faith), except that (A) the Company’s equity in the net income of any such Restricted  Subsidiary for such period shall be included in such Consolidated Net Income up to the aggregate amount of  any dividend or distribution that was or that (as determined by the Company in good faith) could have been  made by such Restricted Subsidiary during such period to the Company or another Restricted Subsidiary  (subject, in the case of a dividend that could have been made to another Restricted Subsidiary, to the  limitation contained in this clause (2)) and (B) the net loss of such Restricted Subsidiary shall be included to  the extent of the aggregate Investment of the Company or any Restricted Subsidiary in such Restricted  Subsidiary;  (3) (x) any gain or loss realized upon the sale, abandonment or other disposition of any asset  of the Company or any Restricted Subsidiary that is not sold, abandoned or otherwise disposed of in the  ordinary course of business (as determined by the Company in good faith) and (y) any gain or loss realized  upon the disposal, abandonment or discontinuation of operations of the Company or any Restricted  Subsidiary;  (4) any extraordinary, unusual or nonrecurring gain, loss or charge (including fees, expenses  and charges associated with the Refinancing Transactions and any acquisition, merger or consolidation after  the Issue Date or any accounting change);  (5) the cumulative effect of a change in accounting principles;  (6) all deferred financing costs written off and premiums paid in connection with any early  extinguishment of Debt or Hedging Obligations or other derivative instruments;  (7) any unrealized gains or losses in respect of Hedge Agreements;  (8) any unrealized foreign currency translation gains or losses, including in respect of Debt of  any Person denominated in a currency other than the functional currency of such Person;  (9) any non-cash compensation charge arising from any grant of limited liability company  interests, stock, stock options or other equity based awards;  (10) to the extent otherwise included in Consolidated Net Income, any unrealized foreign  currency translation gains or losses, including in respect of Debt or other obligations of the Company or any  Restricted Subsidiary owing to the Company or any Restricted Subsidiary;  





 






9    (11) any non-cash charge, expense or other impact attributable to application of the purchase or  recapitalization method of accounting (including the total amount of depreciation and amortization, cost of  sales or other non-cash expense resulting from the write-up of assets to the extent resulting from such  purchase or recapitalization accounting adjustments), non-cash charges for deferred tax valuation allowances  and non-cash gains, losses, income and expenses resulting from fair value accounting required by the  applicable standard under GAAP;  (12) expenses related to the conversion of various employee benefit programs in connection  with the Refinancing Transactions, and non-cash compensation related expenses; and  (13) to the extent covered by insurance and actually reimbursed (or the Company has  determined that there exists reasonable evidence that such amount will be reimbursed by the insurer and such  amount is not denied by the applicable insurer in writing within 180 days and is reimbursed within 365 days  of the date of such evidence (with a deduction in any future calculation of Consolidated Net Income for any  amount so added back to the extent not so reimbursed within such 365-day period)), any expenses with  respect to liability or casualty events or business interruption; provided further that the exclusion of any item  pursuant to the foregoing clauses (1) through (13) shall also exclude the tax impact of any such item, if  applicable.  Notwithstanding the foregoing, for the purpose of Section 4.7(a)(4)(iii) only, there shall be excluded from  Consolidated Net Income, without duplication, any income consisting of dividends, repayments of loans or advances  or other transfers of assets from Unrestricted Subsidiaries to the Company or a Restricted Subsidiary, and any income  consisting of return of capital, repayment or other proceeds from dispositions or repayments of Investments consisting  of Restricted Payments, in each case to the extent such income would be included in Consolidated Net Income and  such related dividends, repayments, transfers, return of capital or other proceeds are applied by the Company to  increase the amount of Restricted Payments permitted under Section 4.7(a)(4)(iii).   “Consolidated Secured Net Leverage Ratio” means, as of any date of determination, the ratio of (1)  Consolidated Total Net Debt that is Secured Debt of the Company and its Restricted Subsidiaries as of such date to  (2) Consolidated EBITDA of the Company for the Test Period. The Consolidated Secured Net Leverage Ratio shall  be calculated on a Pro Forma Basis.  “Consolidated Total Assets” means, as of any date of determination, the total assets, in each case that is or  would be reflected on the consolidated balance sheet of the Company as at the end of the most recently ended fiscal  quarter of the Company for which a balance sheet is available, determined on a consolidated basis in accordance with  GAAP (and, in the case of any determination relating to any Incurrence of Debt or Liens or any Investment, shall be  calculated on a Pro Forma Basis to give effect to any Specified Transaction that shall have occurred since the last day  of such fiscal quarter as if such Specified Transaction had occurred on the last day of such fiscal quarter).  “Consolidated Total Net Debt” means, as of any date of determination, (a) the aggregate principal amount of  Debt of the Company and the Restricted Subsidiaries outstanding on such date, determined on a consolidated basis in  accordance with GAAP (but excluding the effects of any discounting of Debt resulting from the application of  purchase accounting in connection with any Permitted Acquisition), consisting of Debt for borrowed money (including  debt obligations evidenced by bonds, debentures, notes, loan agreements or other similar instruments), Capital Lease  Obligations, Purchase Money Debt and letters of credit (but only to the extent any letter of credit has been drawn but  not reimbursed within ten Business Days), but excluding the amount of any Debt of a type referred to in, or Incurred  pursuant to, clause (19) of the definition of Permitted Debt minus (b) the aggregate amount of unrestricted cash and  Cash Equivalents (in each case, free and clear of all Liens other than Liens securing Debt for borrowed money)  included in the consolidated balance sheet of the Company and the Restricted Subsidiaries as of such date; provided  that Consolidated Total Net Debt shall not include obligations under Hedge Agreements entered into in the ordinary  course of business and not for speculative purposes.  “Consolidated Total Net Leverage Ratio” means, as of any date of determination, the ratio of (1) Consolidated  Total Net Debt of the Company and its Restricted Subsidiaries as of such date to (2) Consolidated EBITDA of the  Company for the Test Period. The Consolidated Total Net Leverage Ratio shall be calculated on a Pro Forma Basis.  





 






10    “Contribution Debt” means unsecured Debt of the Company or any Restricted Subsidiary in an amount equal  to the aggregate amount of cash contributions made after the Issue Date to the Company in exchange for Capital Stock  (other than Disqualified Capital Stock) of the Company, except to the extent utilized in connection with any transaction  that constitutes a Restricted Payment or Permitted Investment.  “Corporate Trust Office” means the offices of the Trustee at which at any time its corporate trust business  shall be principally administered, which office as of the date hereof is located at The Bank of New York Mellon Trust  Company, N.A., 2 North LaSalle Street, Suite 700, Chicago, IL 60602, Attention: Corporate Trust Administration, or  such other address as the Trustee may designate from time to time by notice to the Holders and the Company, or the  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 Company).  “Currency Agreement” means in respect of a Person, any foreign exchange contract, currency swap  agreement or other similar agreement or arrangements (including derivative agreements or arrangements), as to which  such Person is a party or a beneficiary.  “Debt” means (without duplication), with respect to any Person:   (1) all obligations of such Person for borrowed money and all obligations of such Person  evidenced by bonds, debentures, notes, loan agreements or other similar instruments;   (2) every reimbursement obligation of such Person with respect to letters of credit, bankers’  acceptances or similar facilities issued for the account of such Person (excluding obligations with respect to  letters of credit securing obligations (other than obligations with respect to borrowed money) entered into in  the ordinary course of business of such Person to the extent such letters of credit are not drawn upon or, if  and to the extent drawn upon, such drawing is reimbursed no later than 30 days following receipt by such  Person of a demand for reimbursement following payment on the letter of credit);   (3) all obligations of such Person to pay the deferred purchase price of property or services  which purchase price is due more than one year after the date of placing such property in final service or  taking final delivery and title thereto (other than (i) trade accounts payable in the ordinary course of business  and (ii) any earn-out obligation until such obligation becomes a liability on the balance sheet of such Person  in accordance with GAAP and if not paid within 30 days after becoming due and payable);   (4) all Capital Lease Obligations of such Person and all Attributable Debt in respect of Sale  Leasebacks entered into by such Person;   (5) all obligations of such Person in respect of Disqualified Capital Stock, but excluding any  accrued dividends (the amount of such obligations to be equal at any time to the maximum fixed involuntary  redemption, repayment or repurchase price for such Disqualified Capital Stock, or if less (or if such  Disqualified Capital Stock has no such fixed price), to the involuntary redemption, repayment or repurchase  price therefor calculated in accordance with the terms thereof as if then redeemed, repaid or repurchased, and  if such price is based upon or measured by the fair market value of such Disqualified Capital Stock, such fair  market value shall be as determined in good faith by the Company);   (6) net Hedging Obligations of such Person (the amount of any such obligation to be equal at  any time to the termination value of such agreement or arrangement giving rise to such Hedging Obligation  that would be payable by such Person at such time); and   (7) every obligation of the type referred to in clauses (1) through (6) of another Person which  (a) such Person has Guaranteed or is responsible or liable, directly or indirectly, as obligor, guarantor or  otherwise or (b) is secured by any Lien upon or with respect to property owned by such Person, whether or  not such Person has assumed or become liable for the payment of such Debt (the amount of Debt of any  Person for purposes of this clause (7)(b) shall be deemed to be equal to the lesser of (i) the aggregate unpaid  





 






11    amount of such Debt and (ii) the fair market value of the property encumbered thereby as determined by such  Person in good faith).  “Debt Facilities” means one or more credit facilities, debt facilities, indentures or commercial paper facilities  (including, without limitation, each of the Senior Secured Credit Facilities), in each case with banks or other financial  institutions or lenders or investors, providing for revolving credit loans, term loans, private placements, debt securities,  receivables financings (including through the sale of receivables to such lenders or to special purpose entities formed  to borrow from such lenders against such receivables) or letters of credit or letter of credit guarantees, in each case, as  amended, restated, modified, supplemented, extended, renewed, refunded, replaced or refinanced in whole or in part  from time to time.  “Default” means any event that is, or with the passage of time or the giving of notice or both would be, an  Event of Default; provided that any Default that results solely from the taking of an action that would have been  permitted but for the continuation of a previous Default will be deemed to be cured if such previous Default is cured  prior to becoming an Event of Default.  “Depositary” means with respect to the Notes issuable or issued in whole or in part in global form, the Person  specified in Section 2.3 hereof as the Depositary with respect to the Global Notes, and any and all successors thereto  appointed as depositary hereunder and having become such pursuant to the applicable provision of this Indenture.  “Designated Noncash Consideration” means the Fair Market Value of non-cash consideration received by  the Company or any of its Restricted Subsidiaries in connection with an Asset Disposition that is so designated  pursuant to an Officer’s Certificate delivered to the Trustee, setting forth the basis of the valuation. The aggregate Fair  Market Value of the Designated Noncash Consideration, taken together with the Fair Market Value at the time of  receipt of all other Designated Noncash Consideration received (with the Fair Market Value being measured in each  case at the time received and without giving effect to subsequent changes in value), shall not exceed in the aggregate  outstanding at any one time the greater of (i) $65.0 million and (ii) 4.0% of the Company’s Consolidated Total Assets  calculated on a Pro Forma Basis, net of any Designated Noncash Consideration converted into cash and Cash  Equivalents received in respect of any Designated Noncash Consideration and calculated on a Pro Forma Basis.  “Disqualified Capital Stock” means any Capital Stock which, by its terms (or by the terms of any security or  other Capital Stock into which it is convertible or for which it is exchangeable), or upon the happening of any event  or condition, (a) matures or is mandatorily redeemable or provides for the right to require the issuer to repurchase such  Capital Stock (other than solely for Capital Stock that is not Disqualified Capital Stock), pursuant to a sinking fund  obligation or otherwise (except as a result of the occurrence of a “change of control” or “asset disposition” if any such  requirement becomes operative only after compliance by the Company with Section 4.13 and Section 4.10), (b) is  redeemable at the option of the holder thereof (other than solely for Capital Stock that is not Disqualified Capital  Stock), in whole or in part or (c) is or becomes convertible into or exchangeable for Debt or any other Capital Stock  that would constitute Disqualified Capital Stock, in each case, prior to the date that is 91 days after the final Stated  Maturity of the Notes.  “Disqualified Capital Stock Dividends” means all dividends with respect to Disqualified Capital Stock of the  Company or any Restricted Subsidiary held by Persons other than the Company or a Wholly Owned Restricted  Subsidiary. The amount of any dividend of this kind shall be equal to the quotient of the dividend divided by the  difference between one and the maximum statutory consolidated federal, state and local income tax rate (expressed as  a decimal number between 1 and 0) then applicable to the issuer of the Disqualified Capital Stock.  “dollar”, “U.S. dollar” or “$” means the lawful money of the United States of America.  “DTC” means The Depository Trust Company and any successor.  “Electronic Means” means the following communications methods: e-mail, facsimile transmission, secure  electronic transmission containing applicable authorization codes, passwords and/or authentication keys issued by the  Trustee, or another method or system specified by the Trustee as available for use in connection with its services  hereunder.   





 






12    “Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended.  “Excluded Contributions” means the net cash proceeds, and the Fair Market Value of property other than  cash, received by the Company after the Issue Date from:  (1) contributions to its common equity capital; and  (2) the sale of Capital Stock (other than Disqualified Capital Stock) of the Company;  in each case designated as Excluded Contributions pursuant to an Officer’s Certificate of the Company on or promptly  after the date such capital contribution is made or the date such Capital Stock is sold, as the case may be. Excluded  Contributions will be excluded from the calculation set forth in clause Section 4.7(a)(4)(iii)(2).  “Fair Market Value” means, with respect to any asset or property, the sale value that would be obtained in  an arm’s-length free market transaction between an informed and willing seller under no compulsion to sell and an  informed and willing buyer under no compulsion to buy, determined in good faith by senior management or the Board  of Directors of the Company, whose determination will be conclusive for all purposes under this Indenture.  “Financing Disposition” means any sale, transfer, conveyance or other disposition of, or creation or  Incurrence of any Lien on, property or assets by the Company or any Subsidiary thereof to or in favor of any Special  Purpose Entity, or by any Special Purpose Subsidiary, in each case in connection with the Incurrence by a Special  Purpose Entity of Debt, or obligations to make payments to the obligor on Debt, which may be secured by a Lien in  respect of such property or assets.  “Fitch” means Fitch Ratings Inc. and any successor to its rating agency business.  “Foreign Subsidiary” means any Restricted Subsidiary that is not organized under the laws of the United  States of America or any State thereof or the District of Columbia.  “GAAP” means generally accepted accounting principles in the United States, as in effect from time to time.  “Global Note Legend” means the legend identified as such in Exhibit A.  “Global Notes” means the Notes that are in the form of Exhibit A issued in global form and registered in the  name of the Depositary or its nominee.  “Guarantee” means, as to any Person, without duplication, (a) any obligation, contingent or otherwise, of  such Person guaranteeing or having the economic effect of guaranteeing any Debt or other monetary obligation  payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and  including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the  purchase or payment of) such Debt or other monetary obligation, (ii) to purchase or lease property, securities or  services for the purpose of assuring the obligee in respect of such Debt or other monetary obligation of the payment  or performance of such Debt or other monetary obligation, (iii) to maintain working capital, equity capital or any other  financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the  primary obligor to pay such Debt or other monetary obligation or (iv) entered into for the purpose of assuring in any  other manner the obligee in respect of such Debt or other monetary obligation of the payment or performance thereof  or to protect such obligee against loss in respect thereof (in whole or in part) or (b) any Lien on any assets of such  Person securing any Debt or other monetary obligation of any other Person, whether or not such Debt or other  monetary obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Debt to  obtain any such Lien); provided that the term “Guarantee” shall not include endorsements for collection or deposit, in  either case in the ordinary course of business, or customary and reasonable indemnity obligations in effect on the Issue  Date or entered into in the ordinary course of business or in connection with any acquisition or disposition of assets  permitted under this Indenture (other than such obligations with respect to Debt). The amount of any Guarantee shall  be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion  





 






13    thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably  anticipated liability in respect thereof as determined by the guaranteeing Person in good faith.  “Hedge Agreements” means collectively, the Interest Rate Agreements, Currency Agreements and  Commodities Agreements.  “Hedging Obligations” means as to any Person, the obligations of such Person pursuant to any Interest Rate  Agreement, Currency Agreement or Commodities Agreement.  “Holder” means a Person in whose name the Note is registered on the Registrar’s books.  “IAI” means an investor constituting an “accredited investor” within the meaning of Rule 501(a)(1), (2), (3)  or (7) under the Securities Act.  “Incur” means, with respect to any Debt or other obligation of any Person, to create, issue, incur (by  conversion, exchange or otherwise), assume, Guarantee or otherwise become liable in respect of such Debt or other  obligation including by acquisition of Subsidiaries or the recording, as required pursuant to GAAP or otherwise, of  any such Debt or other obligation on the balance sheet of such Person (and “Incurrence”, “Incurred”, and “Incurring”  shall have meanings correlative to the foregoing); provided, however, that a change in GAAP that results in an  obligation of such Person that exists at such time becoming Debt shall not be deemed an Incurrence of such Debt.  “Indenture” means this Indenture, as amended or supplemented from time to time.  “Initial Notes” has the meaning set forth in the preamble hereto.  “Interest Rate Agreement” means, with respect to any Person, any interest rate protection agreement, future  agreement, option agreement, swap agreement, cap agreement, collar agreement, hedge agreement or other similar  agreement or arrangement (including derivative agreements or arrangements), as to which such Person is a party or a  beneficiary.  “Investment” means, as to any Person, any direct or indirect acquisition or investment by such Person,  whether by means of (a) the purchase or other acquisition of Capital Stock or debt or other securities of another Person  or (b) a loan, advance or capital contribution to, Guarantee with respect to any obligation of, or purchase or other  acquisition of any other debt or equity participation or interest in, another Person, including any partnership or joint  venture interest in such other Person. For purposes of covenant compliance, the amount of any Investment shall be  the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment  but giving effect to any returns or distributions of capital, dividends, repayment of principal, payments of interest or  any proceeds from the sale or disposition of such Investment, actually received in cash by such other Person with  respect thereto (but only to the extent that the aggregate amount of all such returns, distributions and repayments with  respect to such Investment does not exceed the principal amount of such Investment and less any such amount which  increases the Available Amount).  “Investment Grade Rating” means a rating equal to or higher than Baa3 (or the equivalent) by Moody’s,  BBB- (or the equivalent) by S&P, BBB- (or the equivalent) by Fitch or any equivalent rating by any other Nationally  Recognized Statistical Rating Organization.  “Investment Grade Securities” means (i) securities issued or directly and fully guaranteed or insured by the  United States government or any agency or instrumentality thereof (other than Cash Equivalents); (ii) debt securities  or debt instruments with an Investment Grade Rating, but excluding any debt securities or instruments constituting  loans or advances among the Company, any Restricted Subsidiary or any of their Affiliates; (iii) Investments in any  fund that invests exclusively in investments of the type described in clauses (i) and (ii) of this definition, which fund  may also hold cash pending investment or distribution; and (iv) corresponding instruments in countries other than the  United States customarily utilized for high quality investments.  “Investment Grade Status” shall occur when the Notes receive any two of the following:  





 






14    (1) a rating of “BBB-” or higher from S&P;  (2) a rating of “Baa3” or higher from Moody’s; or  (3) a rating of “BBB-” or higher from Fitch;  or the equivalent of such rating by such rating organization or, if no rating of S&P, Moody’s or Fitch then exists, the  equivalent of such rating by any other Nationally Recognized Statistical Rating Organization.  “Issue Date” means May 26, 2021.   “JV Entity” means any joint venture of the Company or any Restricted Subsidiary that is not a Subsidiary.  “Lien” means any mortgage, pledge, security interest, encumbrance, lien or charge of any kind (including,  without limitation, conditional sale or other title retention agreement having substantially the same economic effect  as any of the foregoing).  “Limited Condition Transaction” means (x) any Permitted Acquisition or other similar Investment, including  by way of merger, by the Company or one or more of the Restricted Subsidiaries permitted pursuant to this Indenture  the consummation of which is not conditioned upon the availability of, or on obtaining, third-party financing and (y)  any redemption, repurchase, defeasance, satisfaction and discharge or repayment of Debt for which an irrevocable  notice of redemption (or similar notice) has been issued or delivered.  “Material Adverse Effect” means the effect of any event or circumstance that, taken alone or in conjunction  with other events or circumstances, (a) has or could be reasonably expected to have a material adverse effect on the  business, operations, properties or condition (financial or otherwise) of the Company and its Restricted Subsidiaries,  taken as a whole, or on the enforceability of this Indenture, the Notes or the Note Guarantees, (b) impairs the ability  of the Company and the Subsidiary Guarantors, taken as a whole, to perform their payment obligations under this  Indenture, the Notes or the Note Guarantees or (c) otherwise results in a material adverse effect on the ability of any  Holder to enforce or collect any obligations under this Indenture, the Notes or the Note Guarantees.  “Moody’s” means Moody’s Investors Service, Inc. and any successor to its rating agency business that is a  Nationally Recognized Statistical Rating Organization.  “Nationally Recognized Statistical Rating Organization” means a nationally recognized statistical rating  organization within the meaning of Rule 436 under the Securities Act or Section 3(a)(62) of the Exchange Act.   “Net Available Proceeds” from any Asset Disposition by the Company or any Restricted Subsidiary means  an amount equal to the excess, if any, of (i) the sum of cash and Cash Equivalents received in connection with such  Asset Disposition (including any cash or Cash Equivalents received by way of deferred payment pursuant to, or by  monetization of, a note receivable or otherwise, but only as and when so received) over (ii) the sum of (A) the principal  amount, premium or penalty, if any, interest and other amounts on any Debt that is secured by the asset subject to such  Asset Disposition and that is required to be repaid (and is timely repaid) in connection with such Asset Disposition,  (B) the out-of-pocket fees and expenses (including attorneys’ fees, investment banking fees, survey costs, title  insurance premiums, and related search and recording charges, transfer taxes, deed or mortgage recording taxes, other  customary expenses, and brokerage, consultant and other customary fees) actually incurred by the Company or such  Restricted Subsidiary in connection with such Asset Disposition, (C) taxes paid or reasonably estimated to be actually  payable in connection therewith (including, for the avoidance of doubt, any income, withholding and other taxes  payable as a result of the distribution of such proceeds to the Company), and (D) any reserve for adjustment in respect  of (x) the sale price of such asset or assets or purchase price adjustment established in accordance with GAAP and (y)  any liabilities associated with such asset or assets and retained by the Company or any Restricted Subsidiary after  such sale or other disposition thereof, including pension and other post-employment benefit liabilities and liabilities  related to environmental matters or with respect to any indemnification obligations associated with such transaction,  it being understood that “Net Available Proceeds” shall include (i) any cash or Cash Equivalents received upon the  disposition of any non-cash consideration by the Company or any Restricted Subsidiary in any such Asset Disposition  





 






15    and (ii) upon the reversal (without the satisfaction of any applicable liabilities in cash in a corresponding amount) of  any reserve described in clause (D) above.  “Note Custodian” means the Person appointed as custodian for the Depositary with respect to the Global  Notes, or any successor entity thereto.  “Note Guarantee” means the Guarantee by any Subsidiary Guarantor of the Company’s obligations under  this Indenture.  “Notes” means the Initial Notes and any Additional Notes. The Initial Notes and the Additional Notes, if any,  shall be treated as a single class for all purposes under this Indenture.   “Offer to Purchase” means a written offer (the “Offer”) sent by the Company by first class mail, postage  prepaid, to each Holder at his or her address appearing in the security register or, with respect to Global Notes, given  in accordance with DTC procedures on the date of the Offer offering to purchase up to the principal amount of Notes  specified in such Offer at the purchase price specified in such Offer (as determined pursuant to this Indenture). Unless  otherwise required by applicable law, the Offer shall specify an expiration date (the “Offer Expiration Date”) of the  Offer to Purchase which shall be, subject to any contrary requirements of applicable law, not less than 30 days or more  than 60 days after the date of such Offer and a settlement date (the “Purchase Date”) for purchase of Notes within  three Business Days after the Offer Expiration Date. The Offer shall contain a description of the events requiring the  Company to make the Offer to Purchase and all instructions and materials necessary to enable such Holders to tender  Notes pursuant to the Offer to Purchase. The Offer shall also state:   (1) the section of this Indenture pursuant to which the Offer to Purchase is being made;   (2) the Offer Expiration Date and the Purchase Date and, if such Offer is made in advance of  a Change of Control and conditioned upon the occurrence of a Change of Control, that the Offer is  conditioned upon the occurrence of a Change of Control;  (3) the aggregate principal amount of the outstanding Notes offered to be purchased by the  Company pursuant to the Offer to Purchase (including, if less than 100%, the manner by which such amount  has been determined pursuant to the section of this Indenture requiring the Offer to Purchase) (the “Purchase  Amount”);   (4) the purchase price to be paid by the Company for each $1,000 aggregate principal amount  of Notes accepted for payment (as specified pursuant to this Indenture) (the “Purchase Price”);   (5) that the Holder may tender all or any portion of the Notes registered in the name of such  Holder and that any portion of a Note tendered must be tendered in an integral multiple of $1,000 principal  amount;   (6) the place or places where Notes are to be surrendered for tender pursuant to the Offer to  Purchase;   (7) that interest on any Note not tendered or tendered but not purchased by the Company  pursuant to the Offer to Purchase will continue to accrue;   (8) that on the Purchase Date the Purchase Price will become due and payable upon each Note  being accepted for payment pursuant to the Offer to Purchase and that interest thereon shall cease to accrue  on and after the Purchase Date;   (9) that each Holder electing to tender a Note pursuant to the Offer to Purchase will be required  to surrender such Note at the place or places specified in the Offer prior to the close of business on the Offer  Expiration Date (such Note being, if the Company or the Trustee so requires, duly endorsed by, or  





 






16    accompanied by a written instrument of transfer in form satisfactory to the Company and the Trustee duly  executed by, the Holder thereof or his or her attorney duly authorized in writing);   (10)  that Holders will be entitled to withdraw all or any portion of Notes tendered if the  Company (or its Paying Agent) receives, not later than the close of business on the Offer Expiration Date, a  telegram, telex, facsimile or other electronic transmission or letter setting forth the name of the Holder, the  principal amount of the Note the Holder tendered, the certificate number of the Note the Holder tendered and  a statement that such Holder is withdrawing all or a portion of his or her tender;   (11) that (a) if Notes in an aggregate principal amount less than or equal to the Purchase Amount  are duly tendered and not withdrawn pursuant to the Offer to Purchase, the Company shall purchase all such  Notes and (b) if Notes in an aggregate principal amount in excess of the Purchase Amount are tendered and  not withdrawn pursuant to the Offer to Purchase, the Company shall purchase Notes having an aggregate  principal amount equal to the Purchase Amount on a pro rata basis (with such adjustments as may be deemed  appropriate so that only Notes in denominations of $2,000 or integral multiples of $1,000 in excess thereof  shall be purchased); and   (12) that in the case of any Holder whose Note is purchased only in part, the Company shall  execute, and the Trustee shall authenticate and deliver to the Holder of such Note without service charge, a  new Note or Notes, of any authorized denomination as requested by such Holder, in an aggregate principal  amount equal to and in exchange for the unpurchased portion of the Note so tendered.   If any of the Notes subject to an Offer to Purchase is in global form, then the Offer shall be modified by the Company  to the extent necessary to comply with the procedures of the Depositary applicable to repurchases. Any Offer to  Purchase shall be governed by and effected in accordance with the Offer for such Offer to Purchase.  “Offering Memorandum” means the Company’s offering memorandum, dated May 18, 2021, relating to the  offer and sale of the Initial Notes.  “Officer” means, with respect to any Person, (1) the Chairman of the Board of Directors, the Chief Executive  Officer, the President, the Chief Financial Officer, the General Counsel, any Vice President, the Treasurer, any  Assistant Treasurer, any Managing Director, the Secretary or any Assistant Secretary (a) of such Person or (b) if such  Person is owned or managed by a single entity, of such entity, or (2) any other individual designated as an “Officer”  for the purposes of this Indenture by the Board of Directors, Chief Executive Officer or Chief Financial Officer of  such Person.   “Officer’s Certificate” means, with respect to any Person, a certificate signed by an Officer of such Person  that meets the requirements of Section 11.3 of this Indenture.  “Opinion of Counsel” means a written opinion from legal counsel who is reasonably satisfactory to the  Trustee. The counsel may be an employee of or counsel to the Company or its Subsidiaries.  “Pari Passu Debt” means Debt of the Company or a Subsidiary Guarantor that is pari passu in right of  payment with the Notes, in the case of the Company, or the Note Guarantees, in the case of any Subsidiary Guarantor.  For the purposes of this definition, no Debt will be considered to be senior or junior by virtue of being secured on a  first or junior priority basis.  “Participant” means, with respect to the Depositary, a Person who has an account with the Depositary.  “Paying Agent” means any Person authorized by the Company to pay the principal of, premium, if any, or  interest on any Notes on behalf of the Company.  “Permitted Acquisition” means the purchase or other acquisition of property and assets or businesses of any  Person or of assets constituting a business unit, a line of business or division of such Person, or Capital Stock of a  Person that, upon the consummation thereof, will be a Restricted Subsidiary (including as a result of a merger or  





 






17    consolidation) (or such assets will be contributed to the Company or a Restricted Subsidiary); provided that such  purchase or acquisition is permitted under this Indenture.  “Permitted Acquisition Debt” means (i) Debt of the Company or any of its Restricted Subsidiaries Incurred  to finance an acquisition of any assets, business or Person or (ii) Debt of Persons that are acquired by, or merged with  or into, the Company or any of its Restricted Subsidiaries in accordance with the terms of this Indenture (whether or  not Incurred in contemplation of such acquisition or merger); provided that on the date of such acquisition or the date  such Person became a Restricted Subsidiary or the date such Person was merged, consolidated and amalgamated with  or into the Company or a Restricted Subsidiary, as applicable, after giving Pro Forma Effect thereto,   (a) the Company would be permitted to Incur at least $1.00 of additional Debt (other  than Permitted Debt) pursuant to Section 4.9(a), or   (b) the Consolidated Coverage Ratio of the Company would be not less than the  Consolidated Coverage Ratio of the Company immediately prior to giving effect to such transaction.   “Permitted Investments” means:  (1) any Investment in the Company or a Restricted Subsidiary or a Person that will become a  Restricted Subsidiary or that will be merged into or consolidated with or transfers or conveys all or  substantially all of its assets to, or is liquidated into, the Company or a Restricted Subsidiary as a result of  such Investment, and any Investment held by a Person at the time it is acquired by or merged into or  consolidated with the Company or a Restricted Subsidiary; provided that such Investment of such Person  was not made in contemplation of or in connection with such acquisition, merger or consolidation;  (2) any Investment in cash, Cash Equivalents and Investment Grade Securities;  (3) loans or advances to officers, directors, managers, partners and employees of the Company  or the Restricted Subsidiaries (i) for reasonable and customary business-related travel, entertainment,   relocation, customary fringe benefits and analogous ordinary business purposes and (ii) for purposes not  described in the foregoing clause (i); provided that all loans or advances pursuant to this clause (ii) shall  not  exceed $10.0 million in an aggregate principal amount outstanding at any time (without giving effect to  cancellations and forgiveness);  (4) asset purchases (including purchases of inventory, supplies and materials), prepaid  expenses and the licensing or contribution of intellectual property pursuant to joint marketing arrangements  with other Persons, in each case in the ordinary course of business;  (5) Investments consisting of extensions of credit in the nature of accounts receivable or notes  receivable arising from the grant of trade credit in the ordinary course of business, and Investments received  in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits or  advances to suppliers in the ordinary course of business;  (6) any non-cash consideration received in connection with an Asset Disposition (or a  disposition excluded from the definition of Asset Disposition) that was made in compliance with Section  4.10;  (7) guarantees of Debt made in compliance with Section 4.9 and Investments consisting of  Liens permitted under Section 4.12;  (8) any Investment existing on the Issue Date and any modification, replacement, renewal,  reinvestment or extension of any such Investment; provided that the amount of any such Investment is not  increased from the amount of such Investment on the Issue Date except pursuant to the terms of such  Investment as in existence on the Issue Date or as otherwise permitted under this Indenture;  





 






18    (9) Investments in Hedge Agreements permitted to be Incurred under clause (7) of the  definition of Permitted Debt;  (10) Investments in the ordinary course of business consisting of endorsements for collection or  deposit and customary trade arrangements with customers consistent with past practices;  (11) Investments (including debt obligations and Capital Stock) received in connection with the  bankruptcy or reorganization of suppliers and customers or in settlement of delinquent obligations of, or  other disputes with, customers and suppliers arising in the ordinary course of business or upon the foreclosure  with respect to any secured Investment or other transfer of title with respect to any secured Investment;  (12) advances of payroll payments to employees in the ordinary course of business;  (13) Guarantees of the Company or any Restricted Subsidiary in respect of leases (other than  Capital Leases) or of other obligations that do not constitute Debt, in each case entered into in the ordinary  course of business;  (14) Investments to the extent that payment for such Investments is made solely with Capital  Stock (other than Disqualified Capital Stock);  (15) Investments in Related Businesses in an aggregate amount, taken together with all other  Investments made pursuant to this clause (15) that are at the time outstanding, not to exceed the greater of  (i) $90.0 million and (ii) 5.5% of the Company’s Consolidated Total Assets calculated on a Pro Forma Basis;  (16) other Investments in an aggregate amount, taken together with all other Investments made  pursuant to this clause (16) that are at the time outstanding, not to exceed the greater of (i) $125.0 million  and (ii) 7.0% of the Company’s Consolidated Total Assets calculated on a Pro Forma Basis;  (17) Investments by an Unrestricted Subsidiary entered into prior to the day such Unrestricted  Subsidiary is redesignated as a Restricted Subsidiary pursuant to Section 4.16; provided that such  Investments were not incurred in contemplation of or in connection with such redesignation;  (18) other Investments; provided that, at the time of such Investment, (i) no Default or Event of  Default has occurred and is continuing and (ii) the Consolidated Total Net Leverage Ratio of the Company  would not exceed 4.00 to 1.00;  (19) obligations in respect of customary indemnification obligations in favor of purchasers in  connection with dispositions of assets permitted under this Indenture or obligations in respect of purchase  price (including earn-outs) or other similar adjustments in connection with any acquisition or any other  Investment permitted under this Indenture;   (20) transactions entered into in order to consummate a Permitted Tax Restructuring;   (21) Currency Agreements, Interest Rate Agreements, Commodities Agreements and related  Hedging Obligations;  (22) (i) Investments in or by any Special Purpose Subsidiary, or in connection with a Financing  Disposition by, to, in or in favor of any Special Purpose Entity, including Investments of funds held in  accounts permitted or required by the arrangements governing such Financing Disposition or any related  Debt or (ii) any promissory note issued by the Company;  (23) pledges or deposits (x) with respect to leases or utilities provided to third parties in the  ordinary course of business or (y) otherwise described in the definition of Permitted Liens or made in  connection with Permitted Liens;  





 






19    (24) bonds secured by assets leased to and operated by the Company or any Restricted  Subsidiary that were issued in connection with the financing of such assets so long as the Company or any  Restricted Subsidiary may obtain title to such assets at any time by paying a nominal fee, canceling such  bonds and terminating the transaction; and  (25) any Investment by any Captive Insurance Subsidiary in connection with the provision of  insurance to the Company or any of its Restricted Subsidiaries, which Investment is made in the ordinary  course of business of such Captive Insurance Subsidiary, or by reason of applicable law, rule, regulation or  order, or that is required or approved by any regulatory authority having jurisdiction over such Captive  Insurance Subsidiary or its business, as applicable.   “Permitted Liens” means, with respect to any Person:  (1) Liens securing Debt under Debt Facilities outstanding or Incurred under clause (1) of the  definition of Permitted Debt;  (2) Liens existing on the Issue Date (other than Liens permitted under clause (1));   (3) Liens for taxes, assessments or governmental charges (i) which are not overdue for a period  of more than 30 days, (ii) which are being contested in good faith and by appropriate proceedings diligently  conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person to  the extent required in accordance with GAAP or (iii) the nonpayment of which would not reasonably be  expected, individually or in the aggregate, to constitute a Material Adverse Effect;   (4) statutory Liens or common law Liens of landlords, carriers, warehousemen, mechanics,  materialmen, repairmen, construction contractors or other like Liens arising in the ordinary course of  business (i) which secure amounts not overdue for a period of more than 30 days or, if more than 30 days  overdue, are unfiled (or, if, filed have been discharged or stayed) and no other action has been taken to  enforce such Lien or (ii) which are being contested in good faith and by appropriate proceedings diligently  conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person to  the extent required in accordance with GAAP;  (5) (i) pledges, deposits or Liens arising as a matter of law in the ordinary course of business  in connection with workers’ compensation, payroll taxes, unemployment insurance and other social security  legislation, and (ii) pledges and deposits in the ordinary course of business securing liability for  reimbursement or indemnification obligations of (including obligations in respect of letters of credit or bank  guarantees for the benefit of) insurance carriers providing property, casualty or liability insurance to the  Company or any Restricted Subsidiary;  (6) Liens incurred or pledges or deposits made in the ordinary course of business to secure the  performance of bids, trade contracts, governmental contracts and leases (other than Debt for borrowed  money), statutory obligations, surety, stay, customs and appeal bonds, performance bonds and other  obligations of a like nature (including those to secure health, safety and environmental obligations) or arising  as a result of progress payments under government contracts;  (7) (i) easements, rights-of-way, restrictions, covenants, conditions, encroachments,  protrusions and other similar encumbrances and minor title defects affecting real property which, in the  aggregate, do not in any case materially interfere with the ordinary conduct of the business of the Company  or any Restricted Subsidiary and (ii) Liens disclosed as exceptions to coverage in any final title policies and  endorsements issued with respect to real property subject to mortgages securing obligations under the Senior  Secured Credit Facilities and other Liens permitted under such mortgages;  (8) Liens securing judgments for the payment of money not constituting an Event of Default;   





 






20    (9) Purchase Money Liens securing Purchase Money Debt Incurred under clause (6) of the  definition of Permitted Debt and any Permitted Refinancing Debt with respect thereto;  (10) leases, licenses, subleases or sublicenses and Liens on the property covered thereby, in  each case, granted to others in the ordinary course of business which do not (i) interfere in any material  respect with the business of the Company and the Restricted Subsidiaries, taken as a whole, or (ii) secure  any Debt;  (11) 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 in the ordinary course of business;  (12) Liens (i) of a collection bank (including those arising under Section 4-210 of the Uniform  Commercial Code) on the items in the course of collection and (ii) in favor of a banking or other financial  institution arising as a matter of law encumbering deposits or other funds maintained with a financial  institution (including the right of set off) and which are within the general parameters customary in the  banking industry;  (13) Liens (i) on cash advances in favor of the seller of any property to be acquired in an  Investment permitted pursuant to Section 4.7 to be applied against the purchase price for such Investment  and (ii) on any assets or property subject to an agreement to dispose of such assets or property in an Asset  Disposition (or any other disposition) permitted under Section 4.10, in each case, solely to the extent such  Investment or Asset Disposition (or other disposition), as the case may be, would have been permitted on the  date of the creation of such Lien;  (14) Liens in favor of the Company or a Restricted Subsidiary securing Debt permitted under  clause (3) of the definition of Permitted Debt;  (15) Liens existing on property at the time of its acquisition or existing on the property of any  Person at the time such Person becomes a Restricted Subsidiary, in each case after the Issue Date; provided  that (i) such Lien was not created in contemplation of such acquisition or such Person becoming a Restricted  Subsidiary, (ii) such Lien does not extend to or cover any other assets or property (other than the proceeds  or products thereof and other than after-acquired property subjected to a Lien securing Debt and other  obligations incurred prior to such time and which Debt and other obligations are permitted under this  Indenture that require, pursuant to their terms at such time, a pledge of after-acquired property, it being  understood that such requirement shall not be permitted to apply to any property to which such requirement  would not have applied but for such acquisition), and (iii) the Debt secured thereby is permitted under Section  4.9;  (16) any interest or title of a lessor or sublessor under leases or subleases entered into by the  Company or any Restricted Subsidiary in the ordinary course of business;  (17) Liens, if any, arising out of conditional sale, title retention, consignment or similar  arrangements for sale of goods entered into by the Company or any Restricted Subsidiary in the ordinary  course of business;  (18) Liens that are contractual rights of set-off (i) relating to the establishment of depository  relations with banks or other financial institutions not given in connection with the incurrence of Debt, (ii)  relating to pooled deposit or sweep accounts of the Company or any Restricted Subsidiary to permit  satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the Company or  any Restricted Subsidiary, (iii) relating to purchase orders and other agreements entered into with customers  of the Company or any Restricted Subsidiary in the ordinary course of business or (iv) relating to credit  balances of the Company or any of its Restricted Subsidiaries with credit card issuers or credit card  processors or amounts owing by such credit card issuers or credit card processors to the Company or any of  its Restricted Subsidiaries in the ordinary course of business, but not Liens on or rights of setoff against any  other property or assets of the Company or any Restricted Subsidiary pursuant to the credit card agreements  





 






21    to secure the obligations of the Company or any Restricted Subsidiary to such credit card issuers or credit  card processors as a result of fees and chargebacks;   (19) Liens, if any, arising from precautionary Uniform Commercial Code financing statement  filings;  (20) Liens on insurance policies and the proceeds thereof securing the financing of the  premiums with respect thereto;  (21) any zoning or similar law or right reserved to or vested in any governmental authority to  control or regulate the use of any real property or title defects or irregularities that are of a minor nature that,  in each case, does not materially interfere with the ordinary conduct of the business of the Company or any  Restricted Subsidiary;  (22)  Liens on specific items of inventory or other goods and the proceeds thereof securing such  Person’s obligations in respect of documentary letters of credit issued for the account of such Person to  facilitate the purchase, shipment or storage of such inventory or goods;   (23)  the modification, replacement, renewal or extension of any Lien permitted by clauses (2),  (9), (15), (29) and (31) of this definition and this clause (23); provided that (i) the Lien does not extend to  any additional property other than (A) after-acquired property that is affixed or incorporated into the property  covered by such Lien or financed by Secured Debt that is otherwise permitted to be Incurred under this  Indenture, and (B) proceeds and products thereof, and (ii) the renewal, extension or refinancing of the  obligations secured or benefited by such Liens is permitted by Section 4.9;   (24) ground leases in respect of real property on which facilities owned or leased by the  Company or any Restricted Subsidiary are located;  (25)  Liens on any property or assets of any Restricted Subsidiary that is not a Subsidiary  Guarantor securing Debt or other obligations of such Restricted Subsidiary;  (26)  Liens solely on any cash earnest money deposits made by the Company or any Restricted  Subsidiary in connection with any letter of intent or purchase agreement permitted under this Indenture;  (27)  Liens securing Debt permitted pursuant to clause (11) of the definition of Permitted Debt;  (28)  other Liens securing Debt or other obligations in an aggregate principal amount at any time  outstanding not to exceed the greater of (i) $175.0 million and (ii) 9.5% of the Company’s Consolidated  Total Assets calculated on a Pro Forma Basis;  (29)  Liens on assets, property or shares of stock of a Person existing at the time such Person  becomes a Restricted Subsidiary or is merged with or into or consolidated or amalgamated with the Company  or any Restricted Subsidiary of the Company; provided, however, that such Liens are not created or Incurred  in connection with, or in contemplation of, such other Person becoming such a Restricted Subsidiary or  merging with or into or consolidating or amalgamating with the Company or any Restricted Subsidiary of  the Company; provided further however, that such Liens shall not extend to any other property owned by the  Company or any Restricted Subsidiary;  (30)  with respect to any Foreign Subsidiary, other Liens and privileges arising mandatorily by  law;  (31)  Liens securing Debt (other than Subordinated Debt); provided that at the time of Incurrence  and after giving effect to the Incurrence of such Debt and the application of the proceeds therefrom on such  date, the Consolidated Secured Net Leverage Ratio of the Company would not exceed 4.50 to 1.00 (assuming  for purposes of the calculation of the Consolidated Secured Net Leverage Ratio under this clause (31), that  





 






22    any commitments with respect to Secured Debt under any revolving Debt Facility (including the ABL Credit  Facility) permitted to be Incurred under this clause (31) are fully drawn on such date);  (32)  Liens on the Capital Stock of JV Entities securing financing arrangements for the benefit  of the applicable JV Entity that are not otherwise prohibited under this Indenture;  (33)  Liens on the assets or Capital Stock of any Special Purpose Subsidiary securing Debt  (including Liens securing any obligations in respect thereof) or other obligations of, or in favor of, any  Special Purpose Entity, or in connection with a Special Purpose Financing or otherwise, Incurred pursuant  to clause (19) of the definition of Permitted Debt;   (34)  Liens securing the Notes (including any Additional Notes) and the Note Guarantees  (including in respect of any Additional Notes);  (35) Liens on cash and Cash Equivalents that have been deposited with any Trustee, paying  agent or other agent to be held in escrow for the purpose of repaying, redeeming, discharging, or defeasing  any Debt or pending the release of such cash and Cash Equivalents with respect to any Debt issued in escrow;  and  (36) Liens on receivables sold pursuant to clause (v) of the definition of Asset Disposition.  “Permitted Refinancing Debt” means any Debt of the Company or any of its Restricted Subsidiaries issued  in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund other  Debt of the Company or any of its Restricted Subsidiaries; provided that:   (1)  the principal amount (or accreted value, if applicable) of such Permitted Refinancing Debt  does not exceed the principal amount of the Debt so extended, refinanced, renewed, replaced, defeased or  refunded (plus Related Costs);   (2)  the Permitted Refinancing Debt has a final maturity date no earlier than the earlier of the  final maturity date of the Debt being extended, refinanced, renewed, replaced, defeased or refunded or 91  days after the final maturity date of the Notes;   (3)  the Permitted Refinancing Debt has an Average Life at the time such Permitted  Refinancing Debt is Incurred that is equal to or greater than the shorter of (A) the Average Life of the Debt  being extended, refinanced, renewed, replaced, defeased or refunded and (B) 91 days after the Average Life  of the Notes;   (4)  if the Debt being extended, refinanced, renewed, replaced, defeased or refunded is  subordinated in right of payment to the Notes or a Note Guarantee, such Permitted Refinancing Debt is  subordinated in right of payment to the Notes or such Note Guarantee on terms at least as favorable, taken  as a whole, to the Holders of Notes as those contained in the documentation governing the Debt being  extended, refinanced, renewed, replaced, defeased or refunded; and   (5)  such Debt shall not include Debt of a Restricted Subsidiary that is not a Subsidiary  Guarantor that refinances Debt of the Company or a Subsidiary Guarantor.   “Permitted Tax Restructuring” means any reorganizations and other activities related to tax planning and tax  reorganization (as determined by the Company in good faith) entered into on or after the Issue Date so long as such  Permitted Tax Restructuring does not involve any contribution, sale, assignment, transfer or other disposition of assets  to any Unrestricted Subsidiary, does not materially impair the Note Guarantees and is otherwise not materially adverse  to the Holders of the Notes.  





 






23    “Person” means any individual, corporation, partnership, joint venture, association, joint-stock company,  trust, unincorporated organization, limited liability company, government or any agency or political subdivision  thereof or any other entity.   “Preferred Stock” of any Person means Capital Stock of such Person of any class or classes (however  designated) that ranks prior, as to the payment of dividends or as to the distribution of assets upon any voluntary or  involuntary liquidation, dissolution or winding-up of such Person, to shares of Capital Stock of any other class of such  Person.  “Preferred Stock Dividends” means all dividends with respect to Preferred Stock of the Company or any  Restricted Subsidiary held by Persons other than the Company or a Wholly Owned Restricted Subsidiary. The amount  of any dividend of this kind shall be equal to the quotient of the dividend divided by the difference between one and  the maximum statutory consolidated federal, state and local income rate (expressed as a decimal number between 1  and 0) then applicable to the issuer of the Preferred Stock.  “Pro Forma Basis” or “to give or after giving Pro Forma Effect” means, with respect to the calculation of  any test, ratio or financial measure under this Indenture that is to be calculated on a Pro Form Basis, to give pro forma  effect to the following to the extent applicable:  (1) if, since the beginning of the applicable Test Period and on or prior to date such calculation is made  (the “Calculation Date”), the Company or any Restricted Subsidiary has Incurred any Debt that remains outstanding  on the Calculation Date or if the transaction giving rise to the need to make such calculation is an Incurrence of Debt  by the Company or any Restricted Subsidiary, Consolidated EBITDA and Consolidated Fixed Charges for such Test  Period shall be calculated as if such Debt had been Incurred (and the proceeds therefrom applied) on the first day of  such Test Period;  (2) if, since the beginning of the applicable Test Period, the Company or any Restricted Subsidiary has  repaid, repurchased, redeemed, defeased or otherwise acquired, retired or discharged any Debt that is no longer  outstanding on the Calculation Date (each, a “Discharge”) or if the transaction giving rise to the need to make such  calculation involves a Discharge of Debt (in each case other than Debt Incurred under any revolving credit facility  unless such Debt has been repaid with an equivalent permanent reduction in commitments thereunder), Consolidated  EBITDA and Consolidated Fixed Charges for such period shall be calculated after giving effect on a pro forma basis  to such Discharge of Debt, including with the proceeds of such new Debt, as if such Discharge had occurred on the  first day of such Test Period;  (3) if, since the beginning of the applicable Test Period, the Company or any Restricted Subsidiary shall  have disposed of any company, any business or any group of assets constituting an operating unit of a business,  including any such disposition occurring in connection with a transaction causing a calculation to be made under this  Indenture, or designated any Restricted Subsidiary as an Unrestricted Subsidiary (any such disposition or designation,  a “Sale”), the Consolidated EBITDA for such period shall be reduced by an amount equal to the Consolidated EBITDA  (if positive) attributable to the assets that are the subject of such Sale for such Test Period or increased by an amount  equal to the Consolidated EBITDA (if negative) attributable thereto for such Test Period;  (4) if, since the beginning of the applicable Test Period, the Company or any Restricted Subsidiary (by  merger, consolidation or otherwise) shall have made an Investment in any Person that thereby becomes a Restricted  Subsidiary, or otherwise acquired any company, any business or any group of assets constituting an operating unit of  a business, including any such Investment or acquisition occurring in connection with a transaction causing a  calculation to be made under this Indenture, or designated any Unrestricted Subsidiary as a Restricted Subsidiary (any  such Investment, acquisition or designation, a “Purchase”), Consolidated EBITDA for such period shall be calculated  after giving pro forma effect thereto as if such Purchase occurred on the first day of such Test Period;  (5) if, since the beginning of the applicable Test Period, any Person became a Restricted Subsidiary or  was merged or consolidated with or into the Company or any Restricted Subsidiary, and since the beginning of such  Test Period such Person shall have Incurred any Debt that remains outstanding on the Calculation Date, Discharged  any Debt or made any Sale or Purchase that would have required an adjustment pursuant to clause (1), (2), (3) or (4)  above if made by the Company or any Restricted Subsidiary since the beginning of such period, Consolidated EBITDA  





 






24    and Consolidated Fixed Charges for such period shall be calculated after giving pro forma effect thereto as if any such  transaction occurred on the first day of such Test Period; and  (6) if, since the beginning of the applicable Test Period, the Company or any Restricted Subsidiary  consummates any Specified Transaction (other than a Specified Transaction addressed in clauses (1) thru (5) above),  to the extent applicable, Consolidated EBITDA and Consolidated Fixed Charges for such Test Period shall be  calculated after giving effect there to as if such Specified Transaction had occurred on the first date of such Test  Period.  For purposes of this definition of Pro Forma Basis, whenever pro forma effect is to be given to any Sale,  Purchase or other transaction, or the amount of income or earnings relating thereto and the amount of Consolidated  Interest Expense associated with any Debt Incurred or Discharged, the pro forma calculations in respect thereof  (including in respect of anticipated cost savings or synergies relating to any such Sale, Purchase or other transaction)  shall be as determined in good faith by the Chief Financial Officer of the Company; provided that with respect to cost  savings or synergies relating to any Sale, Purchase or other transaction, the related actions are expected by the  Company to be taken no later than 18 months after the date of determination and such cost savings or synergies shall  be subject to (and included in) the cap set forth in clause (y) of Consolidated EBITDA. If any Debt bears a floating  rate of interest and is being given pro forma effect, the interest expense on such Debt shall be calculated as if the rate  in effect on the date of determination had been the applicable rate for the entire period (taking into account any Interest  Rate Agreement applicable to such Debt). If any Debt bears, at the option of the Company or any Restricted Subsidiary,  a rate of interest based on a prime or similar rate, a Eurodollar interbank offered rate or other fixed or floating rate,  and such Debt is being given pro forma effect, the interest expense on such Debt shall be calculated by applying such  optional rate as the Company or such Restricted Subsidiary may designate. If any Debt that is being given pro forma  effect was Incurred under a revolving credit facility, the interest expense on such Debt shall be computed based on  (A) the average daily balance of such Debt during such Test Period or such shorter period for which such facility was  outstanding or (B) if such facility was created after the end of such Test Period, the average daily balance of such Debt  during the period from the date of creation of such facility to the Calculation Date). Interest on a Capital Lease  Obligation shall be deemed to accrue at an interest rate determined in good faith by a responsible financial or  accounting officer of the Company (which determination shall be conclusive) to be the rate of interest implicit in such  Capital Lease Obligation in accordance with GAAP.  “Purchase Money Debt” means (a) Debt for payment of any of the purchase price of property, plant,  equipment or other fixed or capital assets (either directly or through the acquisition of Capital Stock of a Person that  owns such assets and becomes a Restricted Subsidiary), (b) Debt Incurred at the time of or within 270 days after  acquisition, construction, repair, replacement or improvement of any property, plant, equipment or other fixed or  capital assets, for the purpose of financing any of the price thereof, and (c) Debt Incurred for the construction or  acquisition or improvement of, or to finance or to refinance the construction, acquisition or improvement of, any real  property owned by the Company or any Restricted Subsidiary.  “Purchase Money Lien” means a Lien that secures (a) Capital Lease Obligations or (b) Purchase Money  Debt, in each case, encumbering only the property, plant, equipment or other fixed or capital assets acquired with such  Debt (and additions and accessions to such assets and the proceeds and the products thereof and customary security  deposits) and constituting a purchase money security interest under the UCC or other applicable law.  “Rating Agency” means (1) S&P, Moody’s and Fitch or (2) if S&P, Moody’s or Fitch or each of them shall  not make a corporate rating with respect to the Company or a rating on the Notes publicly available, a Nationally  Recognized Statistical Rating Organization or Organizations, as the case may be, selected by the Company, which  shall be substituted for any or all of S&P, Moody’s or Fitch, as the case may be, with respect to such corporate rating  or the rating of the Notes, as the case may be.  “Receivable” means a right to receive payment pursuant to an arrangement with another Person pursuant to  which such other Person is obligated to pay, as determined in accordance with GAAP, accounts (as defined in the  Uniform Commercial Code as in effect in any jurisdiction from time to time), other accounts and/or other receivables  (including any thereof constituting or evidenced by chattel paper, instruments or general intangibles), and/or related  assets.  





 






25    “Refinancing Transactions” has the meaning set forth in the Offering Memorandum.  “Regulation S Legend” means the legend identified as such in Exhibit A.  “Related Business” means those businesses in which the Company or any of its Restricted Subsidiaries is  engaged on the Issue Date, or that are similar, related, complementary, incidental or ancillary thereto or extensions,  developments or expansions thereof.  “Related Costs” means the aggregate amount of any accrued and unpaid interest, premiums (including tender  premiums) on the Debt being refinanced plus any fees, underwriting discounts, defeasance costs and other costs, fees,  discounts and expenses incurred or payable in connection with such refinancing.  “Replacement Assets” means:   (1) properties and assets (other than cash, Cash Equivalents, any Capital Stock or other security  or any other current assets) that will be used in the business of the Company and its Restricted Subsidiaries  as conducted on the Issue Date or any Related Business; and   (2) Capital Stock of any Person that is engaged in a Related Business and that will be merged  or consolidated with or into the Company or a Restricted Subsidiary or that will become a Restricted  Subsidiary.  “Responsible Officer” means, 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 secretary, 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.  “Restricted Notes Legend” means the legend identified as such in Exhibit A.  “Restricted Subsidiary” means any Subsidiary of the Company, whether existing on or after the Issue Date,  unless such Subsidiary is an Unrestricted Subsidiary. Unless otherwise specified or the context requires otherwise, all  references to Restricted Subsidiary mean a Restricted Subsidiary of the Company.  “S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc., and any  successor to its rating agency business that is a Nationally Recognized Statistical Rating Organization.   “Sale Leaseback” means any transaction or series of related transactions pursuant to which the Company or  any of the Restricted Subsidiaries (a) sells, transfers or otherwise disposes of any property, real or personal, whether  now owned or hereafter acquired, and (b) as part of such transaction, thereafter rents or leases such property or other  property that it intends to use for substantially the same purpose or purposes as the property being sold, transferred or  disposed.   “SEC” means the U.S. Securities and Exchange Commission.  “Secured Debt” means Debt of the Company or a Restricted Subsidiary that is secured by a Lien.   “Securities Act” means the U.S. Securities Act of 1933, as amended.  “Senior Secured Credit Facilities” means the collective reference to the ABL Credit Facility and the Term  Loan Facility.  “Significant Subsidiary” means any Restricted Subsidiary that would be a “Significant Subsidiary” of the  Company within the meaning of Rule 1-02 under Regulation S-X promulgated by the SEC.  





 






26    “Special Purpose Entity” means (a) any Special Purpose Subsidiary or (b) any other Person that is engaged  in the business of (i) acquiring, selling, collecting, financing or refinancing Receivables, and/or (ii) financing or  refinancing in respect of Capital Stock of any Special Purpose Subsidiary.  “Special Purpose Financing” means any financing or refinancing of assets consisting of or including  Receivables of the Company or any Restricted Subsidiary that have been transferred to a Special Purpose Entity or  made subject to a Lien in a Financing Disposition (including any financing or refinancing in respect of Capital Stock  of a Special Purpose Subsidiary held by another Special Purpose Subsidiary).  “Special Purpose Financing Expense” means for any period, (a) the aggregate interest expense for such  period on any Debt of any Special Purpose Subsidiary that is a Restricted Subsidiary, which Debt is not recourse to  the Company or any Restricted Subsidiary that is not a Special Purpose Subsidiary (other than with respect to Special  Purpose Financing Undertakings), and (b) Special Purpose Financing Fees.  “Special Purpose Financing Fees” means distributions or payments made directly or by means of discounts  with respect to any participation interest issued or sold in connection with, and other fees paid to a Person that is not  a Restricted Subsidiary in connection with, any Special Purpose Financing.  “Special Purpose Financing Undertakings” means representations, warranties, covenants, indemnities,  guarantees of performance and (subject to clause (y) of the proviso below) other agreements and undertakings entered  into or provided by the Company or any Restricted Subsidiary that the Company determines in good faith (which  determination shall be conclusive) are customary or otherwise necessary or advisable in  connection with a Special  Purpose Financing or a Financing Disposition; provided that (x) it is understood that Special Purpose Financing  Undertakings may consist of or include (i) reimbursement and other obligations in respect of notes, letters of credit,  surety bonds and similar instruments provided for credit enhancement purposes, (ii) Hedging Obligations or other  obligations relating to Interest Rate Agreements, Currency Agreements or Commodities Agreements entered into by  the Company or any Restricted Subsidiary, in respect of any Special Purpose Financing or Financing Disposition, or  (iii) any Guarantee in respect of customary recourse obligations (as determined in good faith by the Company, which  determination shall be conclusive) in connection with any Special Purpose Financing or Financing Disposition, and  (y) any such other agreements and undertakings shall not include any Guarantee of Debt of a Special Purpose  Subsidiary by the Company or any Restricted Subsidiary that is not a Special Purpose Subsidiary.  “Special Purpose Subsidiary” means any Subsidiary of the Company that (a) is engaged solely in (x) the  business of (i) acquiring, selling, collecting, financing or refinancing Receivables, all proceeds thereof and all rights  (contractual and other), collateral and other assets relating thereto, and/or (ii) owning or holding Capital Stock of any  Special Purpose Subsidiary and/or engaging in any financing or refinancing in respect thereof, and (y) any business  or activities incidental or related to such business, and (b) is designated as a “Special Purpose Subsidiary” by the  Company.  “Specified Transaction” means any Purchase, Sale, Discharge (as such terms are defined under “Pro Forma  Basis”), Incurrence of Debt, any Investment, Restricted Payment, or any other event that by the terms of this Indenture  requires any test to be calculated on a “Pro Forma Basis” or after giving “Pro Forma Effect”; provided at the  Company’s sole election that any such Specified Transaction (other than a Restricted Payment) having an aggregate  value of less than $10.0 million shall not be calculated on a “Pro Forma Basis” or after giving “Pro Forma Effect.”   “Stated Maturity” means, when used with respect to any Debt or any installment of interest on such Debt,  the dates specified in such Debt as the fixed date on which the principal of such Debt or such installment of interest,  as the case may be, is due and payable.  “Subordinated Debt” means Debt of the Company or a Subsidiary Guarantor that is expressly subordinated  or junior in right of payment to the Notes or a Note Guarantee, as applicable, pursuant to a written agreement to that  effect.   “Subsidiary” of any Person means:  





 






27    (1) a corporation more than 50% of the combined voting power of the outstanding Voting  Stock of which is owned, directly or indirectly, by such Person or by one or more other Subsidiaries of such  Person or by such Person and one or more Subsidiaries thereof; or  (2) any other Person (other than a corporation) in which such Person, or one or more other  Subsidiaries of such Person or such Person and one or more other Subsidiaries thereof, directly or indirectly,  has at least a majority ownership interest and power to direct the policies, management and affairs thereof.  “Subsidiary Guarantor” means each Restricted Subsidiary of the Company on the Issue Date that is a party  to this Indenture for purposes of providing a Note Guarantee with respect to the Notes, and each other Restricted  Subsidiary that is required to, or at the election of the Company, does become a Subsidiary Guarantor by the terms of  this Indenture after the Issue Date and their respective successors and assigns, in each case, until such Person is  released from its Note Guarantee in accordance with the terms of this Indenture.  “Term Loan Facility” means Atkore International, Inc.’s first lien secured term loan facility in an aggregate  principal amount of $400.0 million pursuant to the Term Loan Credit Agreement dated as of the Issue Date, by and  among the Company, Atkore International, Inc., the several lenders from time to time party thereto and JPMorgan  Chase Bank, N.A., as administrative agent and collateral agent, as the same may be amended, restated, amended and  restated, modified, supplemented, refinanced and/or replaced from time to time.  “Test Period” means, at any date of determination, the most recently completed four consecutive fiscal  quarters of the Company ending on or prior to such date for which internal financial statements prepared on a  consolidated basis in accordance with GAAP are available.  “Transfer Restricted Notes” means Notes that bear or are required to bear the Restricted Notes Legend.  “Treasury Rate” means, with respect to any redemption date, the yield to maturity at the time of computation  of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal  Reserve Statistical Release H.15 that has become publicly available at least two Business Days prior to such  redemption date (or, if such Statistical Release is no longer published, any publicly available source of similar market  data)) most nearly equal to the period from such redemption date to June 1, 2026; provided, however, that if the period  from such redemption date to June 1, 2026 is not equal to the constant maturity of a United States Treasury security  for which a weekly average yield is given, the Treasury Rate shall be obtained by linear interpolation (calculated to  the nearest one-twelfth of a year) from the weekly average yields of United States Treasury securities for which such  yields are given, except that if the period from such redemption date to June 1, 2026 is less than one year, the weekly  average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year shall be  used.   “Trustee” has the meaning set forth in the preamble of this Indenture and any successor thereto.  “U.S. Government Obligations” means direct non-callable obligations of, or obligations guaranteed by, the  United States for the payment of which obligations or guarantee the full faith and credit of the United States is pledged.   “Uniform Commercial Code” or “UCC” means the Uniform Commercial Code as the same may from time  to time be in effect in the State of New York or the Uniform Commercial Code (or similar code or statute) of another  jurisdiction (as applicable).  “United States” or “U.S.” means the United States of America.  “Unrestricted Subsidiary” means:  (1) any Subsidiary of the Company which at the time of determination shall be designated an  Unrestricted Subsidiary by the Company pursuant to Section 4.16; and  (2) any Subsidiary of an Unrestricted Subsidiary.  





 






28     “Voting Stock” of any Person means Capital Stock of such Person which ordinarily has voting power for the  election of directors (or persons performing similar functions) of such Person, whether at all times or only so long as  no senior class of securities has such voting power by reason of any contingency.   “Wholly Owned Restricted Subsidiary” means any Wholly Owned Subsidiary that is a Restricted Subsidiary.  “Wholly Owned Subsidiary” of any Person means a Subsidiary of such Person all of the outstanding Capital  Stock or other ownership interests of which (other than directors’ qualifying shares) shall at the time be owned by  such Person or by one or more Wholly Owned Subsidiaries of such Person or by such Person and one or more Wholly  Owned Subsidiaries of such Person.     





 






29    SECTION 1.2. Other Definitions.   Term     Defined in Section  “acceleration declaration”  6.2  “Act”  11.12(a)  “Affiliate Transaction” 4.11(a)  “Alternate Offer”  4.13  “Authentication Order” 2.2  “Available Amount” 4.7(a)(4)(iii)  “Change of Control Offer”  4.13  “Change of Control Purchase Price”  4.13  “Covenant Defeasance”  8.3  “Deposit Trustee”  8.5  “Earnings Call” 4.3(c)  “EDGAR” 4.3(a)  “Event of Default”  6.1  “Excess Proceeds”  4.10(c)  “Expiration Date” 11.12(j)  “Fixed Amounts” 1.4  “Incurrence Based Amounts” 1.4  “Institutional Accredited Investor Note” 2.1(b)  “LCA Election”  1.4  “LCA Test Date” 1.4  “Legal Defeasance”  8.2  “Note Amount” 4.10(c)(1)  “Notice” 11.10  “Offered Price” 4.10(c)  “Pari Passu Debt Amount” 4.10(c)(2)  “Pari Passu Offer” 4.10(c)(2)  “Permitted Debt” 4.9(b)  “QIBs”  2.1(b)  “Registrar”  2.3  “Regulation S”  2.1(b)  “Regulation S Global Note”  2.1(b)  “Resale Restriction Termination Date” 2.15(a)  “Restricted Payment” 4.7(a)(4)  “Restricted Period” 2.15(b)  “Rule 144A”  2.1(b)  “Rule 144A Global Note”  2.1(b)  “Successor Company”  5.1(a)(1)  “Successor Subsidiary Guarantor” 5.1(b)(1)(A)  “Suspended Covenants” 4.17(a)  “Suspension Date” 4.17(a)  “Suspension Period” 4.17(a)  SECTION 1.3. Rules of Construction. Unless the context otherwise requires:  (1) a term has the meaning assigned to it herein;  (2) an accounting term not otherwise defined herein 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;  





 






30    (5) unless otherwise specified, any reference to Section, Article or Exhibit refers to such  Section, Article or Exhibit, as the case may be, of this Indenture;  (6) provisions apply to successive events and transactions;   (7) the words “herein,” “hereof” and “hereunder” and other words of similar import refer to  this Indenture as a whole and not any particular Article, Section, clause or other subdivision; and  (8) references to sections of or rules under the Securities Act or the Exchange Act shall be  deemed to include substitute, replacement or successor sections or rules adopted by the SEC from time to  time.  SECTION 1.4. Certain Financial Tests and Calculations. Notwithstanding anything in this Indenture  but subject to the immediately following paragraph, when calculating any applicable ratio or determining other  compliance with this Indenture, including the determination of compliance with any provision of this Indenture in  connection with a Specified Transaction undertaken in connection with the consummation of a Limited Condition  Transaction, the date of determination of such ratio or other applicable covenant and determination of whether any  Default or Event of Default has occurred, is continuing or would result therefrom or other applicable covenant shall,  at the option of the Company (the Company’s election to exercise such option in connection with any Limited  Condition Transaction, an “LCA Election”), be deemed to be the date that the definitive agreements for such Limited  Condition Transaction are entered into (in each case, the “LCA Test Date”) and if, after such ratios and other provisions  are measured on a Pro Forma Basis after giving effect to such Limited Condition Transaction and the other Specified  Transactions to be entered into in connection therewith and the use of proceeds thereof as if they occurred at the  beginning of the four consecutive fiscal quarter period being used to calculate such financial ratio ending prior to the  LCA Test Date, the Company could have taken such action on the relevant LCA Test Date in compliance with such  ratios and provisions, such provisions shall be deemed to have been complied with. For the avoidance of doubt, (x) if  any of such ratios are exceeded as a result of fluctuations in such ratio (including due to fluctuations in Consolidated  EBITDA) at or prior to the consummation of the relevant Limited Condition Transaction, such ratios and other  provisions will not be deemed to have not been satisfied as a result of such fluctuations solely for purposes of  determining whether the Limited Condition Transaction is permitted under this Indenture and (y) such ratios and other  provisions shall not be tested at the time of consummation of such Limited Condition Transaction or related Specified  Transactions. If the Company has made an LCA Election for any Limited Condition Transaction, then in connection  with any subsequent calculation of any ratio or basket availability with respect to any other Specified Transaction on  or following the relevant LCA Test Date and prior to the earlier of the date on which such Limited Condition  Transaction is consummated, such Limited Condition Transaction is terminated or expires without consummation of  such Limited Condition Transaction, any such ratio or basket shall be calculated on a Pro Forma Basis assuming such  Limited Condition Transaction and other transactions in connection therewith (including any Incurrence of Debt and  the use of proceeds thereof) have been consummated.    Notwithstanding anything to the contrary in this Indenture, with respect to any amounts Incurred or  transactions entered into (or consummated) in reliance on a provision of this Indenture that does not require  compliance with a financial ratio or test (any such amounts, the “Fixed Amounts”) substantially concurrently with any  amounts Incurred or transactions entered into (or consummated) in reliance on a provision of this Indenture that  requires compliance with any such financial ratio or test (any such amounts, the “Incurrence Based Amounts”), it is  understood and agreed that the Fixed Amounts (and any cash proceeds thereof) shall be disregarded in the calculation  of the financial ratio or test applicable to the Incurrence Based Amounts in connection with such substantially  concurrent Incurrence, except that (i) Incurrences of Debt and Liens constituting Fixed Amounts shall be taken into  account for purposes of the determination of Incurrence Based Amounts under Section 4.7, (ii) Incurrences of Debt  constituting Fixed Amounts under clauses (w), (x) and (y) of Section 4.9(b)(1) shall be taken into account for purposes  of the determination of Incurrence Based Amounts under Section 4.9(b)(1)(z) and (iii) Incurrences of Debt under  Section 4.9(b)(1) shall be taken into account for purposes of the determination of Incurrence Based Amounts under  clause (31) of the definition of Permitted Liens.  





 






31    ARTICLE II  THE NOTES  SECTION 2.1. Form and Dating. The Notes shall be substantially in the form of Exhibit A attached  hereto. The Notes may have notations, legends or endorsements required by law, stock exchange rule or usage. Each  Note shall be dated the date of its authentication. The Notes will be issued in registered form, without coupons, and  in denominations of $2,000 and integral multiples of $1,000 in excess thereof. The registered Holder will be treated  as the owner of such Note for all purposes.  The terms and provisions contained in the Notes shall constitute, and are hereby expressly made, a part of  this Indenture, and the Company and the Trustee, by their execution and delivery of this Indenture, expressly agree to  such terms and provisions and to be bound thereby. However, to the extent any provision of any Note conflicts with  the express provisions of this Indenture, the provisions of this Indenture shall govern and be controlling.  (a) The Notes shall be issued initially in the form of one or more Global Notes, which shall be  deposited on behalf of the purchasers of the Notes represented thereby with the Note Custodian, and  registered in the name of the Depositary or a nominee of the Depositary, duly executed by the Company and  authenticated by the Trustee as hereinafter provided.   Each Global Note shall represent such of the outstanding Notes as shall be specified therein, and  each shall provide that it shall represent the aggregate amount of outstanding Notes from time to time  endorsed thereon and that the aggregate amount of outstanding Notes represented thereby may from time to  time be reduced or increased, as appropriate, to reflect exchanges, redemptions and transfers of interests. Any  endorsement of a Global Note to reflect the amount of any increase or decrease in the amount of outstanding  Notes represented thereby shall be made by the Trustee or the Note Custodian, at the direction of the Trustee,  in accordance with instructions given by the Holder thereof as required by Section 2.6.  (b) The Initial Notes are being issued by the Company only (i) to “qualified institutional  buyers” (as defined in Rule 144A under the Securities Act (“Rule 144A”)) (“QIBs”) and (ii) in reliance on  Regulation S under the Securities Act (“Regulation S”). After such initial issuance, Initial Notes that are  Transfer Restricted Notes may be transferred to QIBs in reliance on Rule 144A, outside the United States  pursuant to Regulation S, to IAIs or to the Company, in accordance with certain transfer restrictions. Initial  Notes that are offered in reliance on Rule 144A shall be issued in the form of one or more permanent Global  Notes substantially in the form set forth in Exhibit A and bear the Restricted Notes Legend (collectively, the  “Rule 144A Global Note”), deposited with the Note Custodian, duly executed by the Company and  authenticated by the Trustee as hereinafter provided. Initial Notes that are offered in offshore transactions in  reliance on Regulation S shall be issued in the form of one or more permanent Global Notes substantially in  the form set forth in Exhibit A and bear the Regulation S Legend (collectively, the “Regulation S Global  Note”), deposited with the Note Custodian, duly executed by the Company and authenticated by the Trustee  as hereinafter provided. Initial Notes resold to IAIs in the United States shall be issued in the form of one or  more permanent Global Notes substantially in the form set forth in Exhibit A and bear the Restricted Notes  Legend (collectively, the “Institutional Accredited Investor Note”), deposited with the Note Custodian, duly  executed by the Company and authenticated by the Trustee as hereinafter provided. The aggregate principal  amount of each Global Note may from time to time be increased or decreased by adjustments made on the  records of the Note Custodian, at the direction of the Trustee. Transfers of Notes among QIBs, to or by  purchasers pursuant to Regulation S and to or by IAIs shall be represented by appropriate increases and  decreases to the respective amounts of the appropriate Global Notes, as more fully provided in Section 2.15.  (c) Section 2.1(b) shall apply only to Global Notes deposited with or on behalf of the  Depositary.   The Company shall execute and the Trustee shall, in accordance with this Section 2.1 and Section  2.2, authenticate and deliver the Global Notes that (i) shall be registered in the name of the Depositary or the  nominee of the Depositary and (ii) shall be delivered by the Trustee to the Depositary or pursuant to the  Depositary’s instructions or held by the Note Custodian for the Depositary.  





 






32    SECTION 2.2. Execution and Authentication. An Officer shall sign the Notes for the Company by  manual, facsimile or PDF transmission signature.   If an Officer whose signature is on a Note no longer holds that office at the time a Note is authenticated, the  Note shall nevertheless be valid.  A Note shall not be valid until authenticated by the manual or electronic signature of a Responsible Officer  of the Trustee. The signature of a Responsible Officer of the Trustee shall be conclusive evidence that the Note has  been authenticated under this Indenture.  The Trustee shall, upon receipt of a written order of the Company signed by an Officer of the Company (an  “Authentication Order”) directing the Trustee to authenticate the Notes and, except with respect to the Initial Notes,  an Officer’s Certificate and Opinion of Counsel stating that all conditions precedent to the issuance of the Notes  contained herein have been complied with, authenticate Notes for original issue in the aggregate principal amount  stated in such written order.  The Trustee may appoint an authenticating agent reasonably acceptable to the Company to authenticate  Notes. Unless limited by the terms of such appointment, an authenticating agent may authenticate Notes whenever the  Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such  agent or agents. An authenticating agent has the same rights as an Agent to deal with Holders or the Company.  SECTION 2.3. Registrar; Paying Agent. The Company shall maintain (i) an office or agency where  Notes may be presented for registration of transfer or for exchange (“Registrar”) and (ii) an office or agency where  Notes may be presented for payment (“Paying Agent”). The Registrar shall keep a register of the Notes and of their  transfer and exchange. The Company may appoint one or more co-registrars and one or more additional Paying  Agents. The term “Registrar” includes any co-registrar, and the term “Paying Agent” includes any additional Paying  Agent. The Company may change any Paying Agent or Registrar without notice to any Holder. The Company and/or  any Restricted Subsidiary may act as Paying Agent or Registrar.  The Company shall notify the Trustee in writing, and the Trustee shall notify the Holders, of the name and  address of any Agent not a party to this Indenture. The Company shall enter into an appropriate agency agreement  with any Agent not a party to this Indenture. If the Company fails to appoint or maintain a Registrar or Paying Agent,  or fails to give the foregoing notice, the Trustee shall act as such, and shall be entitled to appropriate compensation in  accordance with Section 7.6.  The Company initially appoints the Trustee to act as the Registrar and Paying Agent at the Corporate Trust  Office of the Trustee.  The Company initially appoints DTC to act as the Depositary with respect to the Global Notes.  SECTION 2.4. Paying Agent to Hold Money in Trust. The Company shall require each Paying Agent  other than the Trustee to agree in writing that the Paying Agent shall hold in trust for the benefit of the Holders or the  Trustee all money held by the Paying Agent for the payment of principal, premium or interest on the Notes, and shall  notify the Trustee of any Default by the Company in making any such payment. While any such Default continues,  the Trustee may require a Paying Agent to pay to the Trustee all money held by it in trust for the benefit of the Holders  or the Trustee. The Company at any time may require a Paying Agent to pay all money held by it in trust for the  benefit of the Holders or the Trustee to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than  the Company or any of its Subsidiaries) shall have no further liability for such money. If the Company or any of its  Subsidiaries acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders all  money held by it as Paying Agent. Upon the occurrence of any of the events specified in Section 6.1, the Trustee shall  serve as Paying Agent for the Notes.  SECTION 2.5. Holder Lists. The Trustee shall preserve in as current a form as is reasonably  practicable the most recent list available to it of the names and addresses of all Holders. If the Trustee is not the  Registrar, the Company shall furnish to the Trustee at least seven (7) Business Days before each interest payment date  





 






33    and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee  may reasonably require of the names and addresses of the Holders, including the aggregate principal amount of the  Notes held by each Holder thereof.  SECTION 2.6. Book-Entry Provisions for Global Notes.  (a) Each Global Note shall (i) be registered in the name of the Depositary for such Global  Notes or the nominee of such Depositary, (ii) be delivered by the Trustee to the Depositary or pursuant to the  Depositary’s instructions or held by the Note Custodian for the Depositary and (iii) bear the Global Note  legends as required by Section 2.6(e).  Members of, or Participants in, the Depositary shall have no rights under this Indenture with respect  to any Global Note held on their behalf by the Depositary, or the Note Custodian, or under such Global Note,  and the Depositary may be treated by the Company, and the Trustee or any Agent and any of their respective  agents, as the absolute owner of such Global Note for all purposes whatsoever. Notwithstanding the  foregoing, nothing herein shall prevent the Company, the Trustee or any Agent or their respective agents  from giving effect to any written certification, proxy or other authorization furnished by the Depositary or  impair, as between the Depositary and its Participants, the operation of customary practices governing the  exercise of the rights of an owner of a beneficial interest in any Global Note.  Neither the Trustee nor any Agent shall have any responsibility or obligation to any Holder that is a  member of (or a Participant in) the Depositary or any other Person with respect to the accuracy of the records  of the Depositary (or its nominee) or of any member or Participant thereof, with respect to any ownership  interest in the Notes or with respect to the delivery of any notice (including any notice of redemption) or the  payment of any amount or delivery of any Notes (or other security or property) under or with respect to the  Notes. The Trustee and any Agent may rely (and shall be fully protected in relying) upon information  furnished by the Depositary with respect to its members, Participants and any beneficial owners in the Notes.  Neither the Trustee nor any Agent shall have any responsibility for any actions taken or not taken  by the Depositary.  (b) Transfers of a Global Note shall be limited to transfers of such Global Note in whole, but  not in part, to the Depositary, its successors or their respective nominees. Interests of beneficial owners in a  Global Note may be transferred in accordance with Section 2.15 and the rules and procedures of the  Depositary. In addition, certificated Notes shall be transferred to beneficial owners in exchange for their  beneficial interests only if (i) the Depositary notifies the Company that it is unwilling or unable to continue  as Depositary for the Global Notes and a successor depositary is not appointed by the Company within 90  days of such notice, (ii) the Depositary ceases to be a “clearing agency” registered under the Exchange Act  and a successor depositary is not appointed by the Company within 90 days of such notice, (iii) an Event of  Default of which a Responsible Officer of the Trustee has written notice has occurred and is continuing and  the Registrar has received a request from any Holder of a Global Note to issue such certificated Notes or (iv)  the Company, in its sole discretion, notifies the Trustee in writing that it elects to cause the issuance of  certificated Notes.  (c) In connection with the transfer of an entire Global Note to beneficial owners pursuant to  Section 2.6(b), such Global Note shall be deemed to be surrendered to the Trustee for cancellation, and the  Company shall execute, and the Trustee shall authenticate and deliver to each beneficial owner identified by  the Depositary in exchange for its beneficial interest in such Global Note an equal aggregate principal amount  of certificated Notes of authorized denominations.  (d) The registered Holder of a Global Note may grant proxies and otherwise authorize any  Person, including Participants and Persons that may hold interests through Participants, to take any action  which a Holder is entitled to take under this Indenture or the Notes.  





 






34    (e) Each Global Note shall bear the Global Note Legend on the face thereof.  (f) At such time as all beneficial interests in Global Notes have been exchanged for certificated  Notes, redeemed, repurchased or cancelled, all Global Notes shall be returned to or retained and cancelled  by the Trustee in accordance with Section 2.11. At any time prior to such cancellation, if any beneficial  interest in a Global Note is exchanged for certificated Notes, redeemed, repurchased or cancelled, the  principal amount of Notes represented by such Global Note shall be reduced accordingly and an endorsement  shall be made on such Global Note, by the Trustee or the Note Custodian, at the direction of the Trustee, to  reflect such reduction.  (g) General Provisions Relating to Transfers and Exchanges.  (1) To permit registrations of transfers and exchanges, the Company shall execute  and the Trustee shall authenticate Global Notes and certificated Notes upon receipt of an  Authentication Order in accordance with Section 2.2 or at the Registrar’s request.  (2) No service charge shall be made to a Holder for any registration of transfer or  exchange, but the Company may require payment of a sum sufficient to cover any stamp or transfer  tax or similar governmental charge payable in connection therewith (other than any such stamp or  transfer taxes or similar governmental charge payable upon exchange or transfer pursuant to Section  2.7, Section 2.10, Section 3.6, Section 4.10, Section 4.13 or Section 9.4).  (3) All Global Notes and certificated Notes issued upon any registration of transfer  or exchange of Global Notes or certificated Notes shall be the valid obligations of the Company,  evidencing the same debt, and entitled to the same benefits under this Indenture, as the Global Notes  (or interests therein) or certificated Notes surrendered upon such registration of transfer or exchange.   (4) The Registrar is not required (A) to issue, to register the transfer of or to exchange  Notes during a period beginning at the opening of business 15 days before the day of any selection  of Notes under Section 3.2 hereof and ending at the close of business on the day of such selection,  (B) to register the transfer of or to exchange any Note so selected for redemption in whole or in part,  except the unredeemed portion of any Note being redeemed in part, or (C) to register the transfer of  or to exchange a Note between a record date and the next succeeding interest payment date.  (5) Prior to due presentment for the registration of a transfer of any Note, the Trustee,  any Agent and the Company may deem and treat the Person in whose name any Note is registered  as the absolute owner of such Note for the purpose of receiving payment of principal of and interest  on such Notes and for all other purposes, and none of the Trustee, any Agent or the Company shall  be affected by notice to the contrary.  (6) The Trustee shall authenticate Global Notes and certificated Notes in accordance  with the provisions of Section 2.2. Except as provided in Section 2.6(b), neither the Trustee nor the  Registrar shall authenticate or deliver any certificated Note in exchange for a Global Note.  (7) Each Holder agrees to indemnify the Company and the Trustee against any  liability that may result from the transfer, exchange or assignment of such Holder’s Note in violation  of any provision of this Indenture and/or applicable United States federal or state securities law.  (8) Neither the Trustee nor any Agent shall have any obligation or duty to monitor,  determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture  or under applicable law with respect to any transfer of any interest in any Note (including any  transfers between or among Participants or beneficial owners of interests in any Global Note) other  than to require delivery of such certificates and other documentation or evidence as are expressly  required by, and to do so if and when expressly required by the terms of, this Indenture, and to  





 






35    examine the same to determine substantial compliance as to form with the express requirements  hereof.  (9) The transferor of any Note held in certificated form shall provide or cause to be  provided to the Trustee all information necessary to allow the Trustee to comply with any applicable  tax reporting obligations, including without limitation any cost basis reporting obligations under  Section 6045 of the Internal Revenue Code of 1986, as amended. The Trustee may rely on  information provided to it and shall have no responsibility to verify or ensure the accuracy of such  information.  SECTION 2.7. Replacement Notes. If any mutilated Note is surrendered to the Trustee, or the  Registrar or the Company and the Trustee receives evidence to its satisfaction of the ownership and destruction, loss  or theft of any Note, the Company shall issue and the Trustee, upon receipt of an Authentication Order, shall  authenticate a replacement Note if the Trustee’s requirements are met. If required by the Trustee or the Company, an  indemnity bond must be supplied by the Holder that is sufficient in the judgment of the Trustee and the Company to  protect the Company, the Trustee, any Agent and any authenticating agent from any loss that any of them may suffer  if a Note is replaced. The Company, the Trustee and the Agents may charge for their expenses in replacing a Note.  Every replacement Note is an additional obligation of the Company and shall be entitled to all of the benefits  of this Indenture equally and proportionately with all other Notes duly issued hereunder.  SECTION 2.8. Outstanding Notes. The Notes outstanding at any time are all the Notes authenticated  by the Trustee except for those cancelled by it, those delivered to it for cancellation, those reductions in the interest in  a Global Note effected by the Trustee in accordance with the provisions hereof, and those described in this Section  2.8 as not outstanding. Except as set forth in Section 2.9, a Note does not cease to be outstanding because the Company,  the Subsidiary Guarantors or any of their respective Affiliates holds the Note.   If a Note is replaced pursuant to Section 2.7, it ceases to be outstanding unless the Trustee receives proof  satisfactory to it that the replaced Note is held by a protected purchaser.  If the principal amount of any Note is considered paid under Section 4.1 hereof, it ceases to be outstanding  and interest on it ceases to accrue.  If the Paying Agent (other than the Company, a Subsidiary of the Company, or an Affiliate of any thereof)  holds, on the maturity date or date of redemption, money sufficient to pay all amounts under the Notes payable on that  date, then on and after that date such Notes shall be deemed to be no longer outstanding and shall cease to accrue  interest.  SECTION 2.9. Treasury Notes. In determining whether the Holders of the required aggregate  principal amount of Notes have concurred in any direction, waiver or consent, Notes owned by the Company, the  Subsidiary Guarantors or by any of their respective Affiliates shall be considered as though 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 Notes of which a Responsible Officer of the Trustee has written notice as being so owned shall be so  disregarded. Notwithstanding the foregoing, Notes that are to be acquired by the Company or an Affiliate of the  Company pursuant to an exchange offer, tender offer or other agreement shall not be deemed to be owned by such  entity until legal title to such Notes passes to such entity.  SECTION 2.10. Temporary Notes. Until certificated Notes are ready for delivery, the Company may  prepare and the Trustee, upon receipt of an Authentication Order, shall authenticate temporary Notes. Temporary  Notes shall be substantially in the form of certificated Notes but may have variations that the Company considers  appropriate for temporary Notes. Without unreasonable delay, the Company shall prepare and the Trustee shall upon  receipt of a written order of the Company signed by one Officer, authenticate certificated Notes in certificate form in  exchange for temporary Notes.  Holders of temporary Notes shall be entitled to all of the benefits of this Indenture.  





 






36    SECTION 2.11. Cancellation. The Company at any time may deliver to the Trustee for cancellation  any Notes previously authenticated and delivered hereunder or which the Company may have acquired in any manner  whatsoever, and all Notes so delivered shall be promptly cancelled by the Trustee. All Notes surrendered for  registration of transfer, exchange or payment, if surrendered to any Person other than the Trustee, shall be delivered  to the Trustee. The Trustee and no one else shall cancel all Notes surrendered for registration of transfer, exchange,  payment, replacement or cancellation. Subject to Sections 2.7 and 2.16, the Company may not issue new Notes to  replace Notes that it has redeemed or paid or that have been delivered to the Trustee for cancellation. All cancelled  Notes held by the Trustee shall be disposed of in accordance with its customary practice.  SECTION 2.12. Defaulted Interest. If the Company defaults in a payment of interest on the Notes, it  shall pay the defaulted interest in any lawful manner plus, to the extent lawful, interest payable on the defaulted  interest, to the Persons who are Holders on a subsequent special record date, which date shall be the earliest practicable  date but in all events at least five (5) Business Days prior to the payment date, in each case at the rate provided in the  Notes and in Section 4.1. The Company shall fix or cause to be fixed each such special record date and payment date  and shall promptly thereafter notify the Trustee of any such date. At least ten days before the special record date, the  Company (or the Trustee, in the name and at the expense of the Company) shall mail or cause to be mailed to Holders  a notice that states the special record date, the related payment date and the amount of such interest to be paid. The  Trustee will have no duty whatsoever to determine whether any defaulted interest is payable or the amount thereof.  SECTION 2.13. Computation of Interest. Interest on the Notes shall be computed on the basis of a 360- day year comprised of twelve 30-day months.  SECTION 2.14. CUSIP and ISIN Numbers. The Company in issuing the Notes may use “CUSIP” and  “ISIN” numbers, and, if it does so, the Trustee shall use the CUSIP and/or ISIN number 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 such numbers printed in the notice or on the Notes and that reliance may be placed only  on the other identification numbers printed on the Notes, and any such redemption or exchange shall not be affected  by any defect in or omission of such numbers. The Company shall promptly notify the Trustee in writing of any change  in the CUSIP number and ISIN number.  SECTION 2.15. Transfer and Exchange.  (a) The following provisions shall apply with respect to any proposed transfer of a Rule 144A  Note or an Institutional Accredited Investor Note prior to the date which is six months after (assuming at the  time of transfer the Company is in compliance with the public information requirements of Rule 144(c) under  the Securities Act and, if not, one year after) the later of the date of its original issue, the original issue date  of any Additional Notes and the last date on which the Company or any Affiliate of the Company was the  owner of such securities (or any predecessor thereto) (the “Resale Restriction Termination Date”):  (1) a transfer of a Rule 144A Note or an Institutional Accredited Investor Note or a  beneficial interest therein to a QIB shall be made upon the representation of the transferee, in the  form of assignment as set forth on the reverse of the Note, that it is purchasing the Note for its own  account or an account with respect to which it exercises sole investment discretion and that it and  any such account is a QIB, and is aware that the sale to it is being made in reliance on Rule 144A  and acknowledges that it has received such information regarding the Company as the undersigned  has requested pursuant to Rule 144A or has determined not to request such information and that it  is aware that the transferor is relying upon its foregoing representations in order to claim the  exemption from registration provided by Rule 144A;  (2) a transfer of a Rule 144A Note or an Institutional Accredited Investor Note or a  beneficial interest therein to an IAI shall be made upon receipt by the Trustee or its agent of a  certificate substantially in the form set forth under Exhibit D from the proposed transferee and, if  requested by the Company or the Trustee, the delivery of an Opinion of Counsel, certification and/or  other information satisfactory to each of them; and  





 






37    (3) a transfer of a Rule 144A Note or an Institutional Accredited Investor Note or a  beneficial interest therein to a non-U.S. person shall be made upon receipt by the Trustee or its agent  of a certificate substantially in the form set forth under Exhibit C from the proposed transferor and,  if requested by the Company or the Trustee, the delivery of an Opinion of Counsel, certification  and/or other information satisfactory to each of them.  After the Resale Restriction Termination Date, interests in a Rule 144A Note or an Institutional Accredited  Investor Note may be transferred in accordance with applicable law without requiring the certifications set forth under  Exhibit C or Exhibit D or any additional certification.  (b) The following provisions shall apply with respect to any proposed transfer of a Regulation  S Note prior to the date which is forty days after the later of the Issue Date, the closing date of the issuance  of any Additional Notes and when the Notes or any predecessor of the Notes are first offered to Persons other  than distributors (as defined in Rule 902 of Regulation S) in reliance on Regulation S (the “Restricted  Period”):  (1) a transfer of a Regulation S Note or a beneficial interest therein to a QIB shall be  made upon the representation of the transferee, in the form of assignment as set forth on the reverse  of the Note, that it is purchasing the Note for its own account or an account with respect to which it  exercises sole investment discretion and that it and any such account is a QIB, and is aware that the  sale to it is being made in reliance on Rule 144A and acknowledges that it has received such  information regarding the Company as the undersigned has requested pursuant to Rule 144A or has  determined not to request such information and that it is aware that the transferor is relying upon its  foregoing representations in order to claim the exemption from registration provided by Rule 144A;  (2) a transfer of a Regulation S Note or a beneficial interest therein to an IAI shall be  made upon receipt by the Trustee or its agent of a certificate substantially in the form set forth under  Exhibit D from the proposed transferee and, if requested by the Company or the Trustee, the delivery  of an Opinion of Counsel, certification and/or other information satisfactory to each of them; and  (3) a transfer of a Regulation S Note or a beneficial interest therein to a non-U.S.  person shall be made upon receipt by the Trustee or its agent of a certificate substantially in the form  set forth under Exhibit C hereof from the proposed transferor and, if requested by the Company or  the Trustee, delivery of an Opinion of Counsel, certification and/or other information satisfactory to  each of them.  After the expiration of the Restricted Period, interests in the Regulation S Note may be transferred in  accordance with applicable law without requiring the certifications set forth under Exhibit C or Exhibit D or any  additional certification.  (c) In the event that a Global Note is exchanged for Notes in certificated, registered form  pursuant to Section 2.6, such Notes may be exchanged only in accordance with such procedures as are  substantially consistent with the provisions of clauses (a) and (b) of this Section 2.15 (including the  certification requirements intended to ensure that such transfers comply with Rule 144A or Regulation S, as  the case may be) and such other procedures as may from time to time be adopted by the Company and notified  to the Trustee in writing.  (d) Restricted Notes Legend. Upon the transfer, exchange or replacement of Notes not bearing  the Restricted Notes Legend, the Registrar shall deliver Notes that do not bear the Restricted Notes Legend.  Upon the transfer, exchange or replacement of Notes bearing the Restricted Notes Legend, the Registrar shall  deliver only Notes that bear the Restricted Notes Legend unless there is delivered to the Registrar an Opinion  of Counsel reasonably satisfactory to the Company to the effect that neither such legend nor the related  restrictions on transfer are required in order to maintain compliance with the provisions of the Securities Act.   





 






38    (e) Regulation S Legend. Upon the transfer, exchange or replacement of Notes not bearing the  Regulation S Legend, the Registrar shall deliver Notes that do not bear the Regulation S Legend. Upon the  transfer, exchange or replacement of Notes bearing the Regulation S Legend, the Registrar shall deliver only  Notes that bear the Regulation S Legend unless there is delivered to the Registrar an Opinion of Counsel  reasonably satisfactory to the Company to the effect that neither such legend nor the related restrictions on  transfer are required in order to maintain compliance with the provisions of the Securities Act.  (f) General. By its acceptance of any Note bearing the Restricted Notes Legend or the  Regulation S Legend, as applicable, each Holder of such a Note acknowledges the restrictions on transfer of  such Note set forth in this Indenture and in the Restricted Notes Legend or the Regulation S Legend, as  applicable, and agrees that it shall transfer such Note only as provided in this Indenture. A transfer of a  beneficial interest in a Global Note that does not involve an exchange of such interest for a certificated Note  or a beneficial interest in another Global Note shall be subject to compliance with applicable law and the  applicable procedures of the Depositary but is not subject to any procedure required by this Indenture.   In connection with any proposed transfer pursuant to Regulation S or pursuant to any other available  exemption from the registration requirements of the Securities Act (other than pursuant to Rule 144A), the Company  may require the delivery of an Opinion of Counsel, other certifications or other information satisfactory to the  Company.  The Registrar shall retain copies of all letters, notices and other written communications received pursuant  to this Section 2.15.  SECTION 2.16. Issuance of Additional Notes. The Company shall be entitled to issue Additional Notes  in an unlimited aggregate principal amount under this Indenture that shall have identical terms as the Initial Notes,  other than with respect to the date of issuance, issue price, first interest payment date applicable thereto, first date from  which interest will accrue, transfer restrictions, any registration rights agreement and additional interest with respect  thereto; provided that such issuance is not prohibited by the terms of this Indenture, including Section 4.9 and provided  further that if any Additional Notes are not fungible with the existing Notes for U.S. federal income tax purposes, as  determined by the Company, such Additional Notes will have a separate CUSIP number and ISIN. The Initial Notes  and any Additional Notes shall be treated as a single class for all purposes under this Indenture.  With respect to any Additional Notes, the Company shall set forth in an Officer’s Certificate, a copy of which  shall be delivered to the Trustee, the following information:  (1) the aggregate principal amount of such Additional Notes to be authenticated and  delivered pursuant to this Indenture;   (2) the issue price, the issue date, the CUSIP and/or ISIN number of such Additional  Notes, the first interest payment date and the amount of interest payable on such first interest payment date applicable  thereto and the date from which interest shall accrue;  (3) whether such Additional Notes shall be Transfer Restricted Notes; and   (4) that such issuance is not prohibited by this Indenture.  The Trustee shall, upon receipt of the Officer’s Certificate, authenticate the Additional Notes in accordance  with the provisions of Section 2.2 of this Indenture.  ARTICLE III  REDEMPTION AND PREPAYMENT  SECTION 3.1. Notices to Trustee. If the Company elects to redeem Notes pursuant to the optional  redemption provisions of Section 3.7, it shall furnish to the Trustee, at least three Business Days (or such shorter  





 






39    period as is acceptable to the Trustee) before sending a notice of such redemption, an Officer’s Certificate setting forth  (i) the paragraph of the Notes and/or section of this Indenture pursuant to which the redemption shall occur, (ii) the  redemption date (which, in the case of a redemption subject to conditions, may be subject to extension until such  conditions are satisfied), (iii) the principal amount of Notes to be redeemed and (iv) the redemption price or the method  for determining the redemption price.   SECTION 3.2. Selection of Notes to Be Redeemed. In the event that less than all of the Notes are to  be redeemed at any time, the Trustee shall select the Notes (or portions of Notes) to be redeemed among the Holders  in compliance with the requirements of the principal national securities exchange, if any, on which the Notes are listed  or, if the Notes are not then listed on any national securities exchange, by lot (except that any Notes represented by a  Global Note will be selected in accordance with the applicable procedures and requirements of DTC); provided,  however, that no Notes of $2,000 in original principal amount or less shall be redeemed in part.  SECTION 3.3. Notice of Redemption. In connection with any redemption pursuant to Section 3.7, the  Company shall mail or cause to be mailed (in each case sent by first class mail) in accordance with Section 11.1 and,  in the case of Global Notes given in accordance with DTC procedures, a notice of redemption pursuant to this Section  3.3 to each Holder whose Notes are to be redeemed at its registered address (with a copy to the Trustee), at least ten  days but not more than 60 days before the expected redemption date (except that notices may be delivered more than  60 days before a redemption date if the notice is issued in accordance with Article VIII).   The notice shall identify the Notes to be redeemed (including the name of the Notes, the series, “CUSIP”  numbers and corresponding “ISINs”, if applicable, interest rate, maturity date and, if known, certificate numbers) and  shall state:  (1) the redemption date (which, in the case of a redemption subject to conditions, may be  subject to extension until such conditions are satisfied);  (2) the redemption price (or the method by which it is to be determined);  (3) if any Note is being redeemed in part, the portion of the principal amount of such Note to  be redeemed and that, after the redemption date, upon surrender of such Note, a new Note or Notes in principal  amount equal to the unredeemed portion shall be issued upon cancellation of the original Note (or appropriate  adjustments to the amount and beneficial interests in a Global Note will be made, as appropriate);  (4) the name and address of the Paying Agent;  (5) that Notes called for redemption must be surrendered to the Paying Agent to collect the  redemption price;  (6) that, unless the Company defaults in making such redemption payment, interest, if any, on  Notes called for redemption ceases to accrue on and after the redemption date;  (7) the paragraph of the Notes and/or Section of this Indenture pursuant to which the Notes  called for redemption are being redeemed;   (8) that no representation is made as to the correctness or accuracy of the CUSIP number and  ISIN number, if any, listed in such notice or printed on the Notes; and  (9) any conditions precedent to such redemption.  At the Company’s written request, the Trustee shall give the notice of redemption in the Company’s name  and at the Company’s expense; provided, however, that the Company shall have delivered to the Trustee, at least five  Business Days prior to the date of the giving of the notice of redemption (or such shorter period as is acceptable to the  Trustee), an Officer’s Certificate requesting that the Trustee give such notice and setting forth the information to be  stated in the notice as provided in the preceding paragraph. The notice sent in the manner herein provided shall be  





 






40    deemed to have been duly given whether or not the Holder receives such notice. In any case, failure to give such notice  or any defect in the notice to the Holder of any Note shall not affect the validity of the proceeding for the redemption  of any other Note.  SECTION 3.4. Effect of Notice of Redemption. Subject to the next paragraph, once notice of  redemption is delivered in accordance with Section 3.3, Notes called for redemption become due and payable on the  redemption date at the applicable redemption price.  Any redemption notice may, at the Company’s discretion, be subject to the satisfaction or waiver of one or  more conditions precedent, including completion of a financing or other corporate transaction. In addition, if such  redemption is subject to satisfaction or waiver of one or more conditions precedent, such notice shall state that, in the  Company’s discretion, the redemption date may be delayed until such time as any or all such conditions shall be  satisfied or waived, or such redemption may not occur and such notice may be rescinded in the event that any or all  such conditions shall not have been satisfied or waived by the redemption date, or by the redemption date so delayed.  The Company shall provide written notice of the satisfaction or waiver of such conditions, the delay of such  redemption date or the rescission of such notice of redemption to the Trustee no later than the redemption date, and  upon receipt the Trustee shall provide such notice to each Holder of the Notes in the same manner in which the notice  of redemption was given.  SECTION 3.5. Deposit of Redemption Price. On or before 11:00 a.m. (New York City time) on the  redemption date, the Company shall deposit with the Trustee or with the Paying Agent (if other than the Company or  an Affiliate of the Company) money sufficient to pay the redemption price, together with accrued and unpaid interest,  if any, to the applicable redemption date on all Notes to be redeemed on that date. The Trustee or the Paying Agent  shall promptly return to the Company any money deposited with the Trustee or the Paying Agent by the Company in  excess of the amounts necessary to pay the redemption price and accrued and unpaid interest, if any, to the applicable  redemption date on all Notes to be redeemed.  If the Company has deposited with the Trustee or Paying Agent money sufficient to pay the redemption price  of, and unpaid and accrued interest, if any, on, all Notes to be redeemed, on and after the redemption date, interest  shall cease to accrue on the Notes or the portions of Notes called for redemption (regardless of whether certificates  for such securities are actually surrendered). If a Note is redeemed on or after an interest record date but on or prior  to the related interest payment date, then any accrued and unpaid interest shall be paid to the Person in whose name  such Note was registered at the close of business on such record date. If any Note called for redemption shall not be  so paid upon surrender for redemption because of the failure of the Company to comply with the preceding paragraph,  interest shall be paid on the unpaid principal from the redemption date until such principal is paid, and to the extent  lawful on any interest not paid on such unpaid principal, in each case, at the rate provided in the Notes and in Section  4.1.  SECTION 3.6. Notes Redeemed in Part. Upon surrender and cancellation of a Note that is redeemed  in part, the Company shall issue and, upon the written request of an Officer of the Company, the Trustee shall  authenticate for the Holder at the expense of the Company a new Note equal in principal amount to the unredeemed  portion of the Note surrendered and canceled; provided that each such new Note will be in a principal amount of  $2,000 or integral multiples of $1,000 in excess thereof.  SECTION 3.7. Optional Redemption.  (a) The Notes may be redeemed, in whole or in part, at any time or from time to time prior to  June 1, 2026 at the option of the Company, at a redemption price equal to 100.0% of the principal amount of  the Notes redeemed plus the Applicable Premium as of, and accrued and unpaid interest thereon, if any, to,  but excluding, the applicable redemption date (subject to the right of Holders of record on the relevant record  date to receive interest due on the relevant interest payment date). The Company will calculate the Treasury  Rate and Applicable Premium and, prior to the redemption date, file an Officer’s Certificate with the Trustee  setting forth the Treasury Rate and Applicable Premium and showing the calculation of each in reasonable  detail.  





 






41    (b) At any time or from time to time on or after June 1, 2026, the Company, at its option, may  redeem the Notes in whole or in part, at the redemption prices (expressed as percentages of principal amount  of the Notes to be redeemed) set forth below, together with accrued and unpaid interest thereon, if any, to,  but excluding, the applicable redemption date (subject to the right of Holders of record on the relevant record  date to receive interest due on the relevant interest payment date), if redeemed during the 12-month period  beginning June 1 of the years indicated below:  Year  Redemption Price  2026..................................................................... 102.125%  2027 ..................................................................... 101.417%  2028 ..................................................................... 100.708%  2029 and thereafter ................................................... 100.000%    (c) Notwithstanding the foregoing, in connection with any tender offer for the Notes  (including, but not limited to, a Change of Control Offer or Alternate Offer), if Holders of not less than 90%  in aggregate principal amount of the outstanding Notes validly tender and do not withdraw such Notes in  such tender offer and the Company, or any third party making such a tender offer in lieu of the Company,  purchases all of the Notes validly tendered and not withdrawn by such Holders, the Company or such third  party will have the right upon not less than ten nor more than 60 days’ prior notice, given not more than 30  days following such purchase pursuant to such tender offer, to redeem all Notes that remain outstanding  following such purchase at a price equal to the price offered to each other Holder in such tender offer plus,  to the extent not included in the tender offer payment, accrued and unpaid interest, if any, to, but excluding,  the redemption date.  (d) Nothing herein shall limit the ability of the Company or its Affiliates to purchase or acquire  Notes in open market purchases, tender or exchange offers or other negotiated transactions.   ARTICLE IV  COVENANTS  SECTION 4.1. Payment of Notes.  (a) The Company shall pay or cause to be paid the principal of, premium, if any, and interest  on the Notes on the dates and in the manner provided in the Notes. Principal, premium, if any, and interest  shall be considered paid for all purposes hereunder on the date the Trustee or the Paying Agent (if other than  the Company or a Restricted Subsidiary thereof) holds, as of 11:00 a.m. (New York City time) on the relevant  payment date, U.S. dollars deposited by the Company in immediately available funds and designated for and  sufficient to pay all such principal, premium, if any, and interest then due.  (b) The Company shall pay interest (including post-petition interest in any proceeding under  any Bankruptcy Law) on overdue principal at the rate equal to the then applicable interest rate on the Notes  to the extent lawful; it shall pay interest (including post-petition interest in any proceeding under any  Bankruptcy Law) on overdue installments of interest (without regard to any applicable grace period), at the  same rate to the extent lawful.  SECTION 4.2. Maintenance of Office or Agency. The Company shall maintain an office or agency in  the United States where Notes may be surrendered for registration of transfer or for exchange and where notices and  demands to or upon the Company and the Subsidiary Guarantors in respect of the Notes and this Indenture may be  served. The Company shall give prompt written notice to the Trustee of the location, and any change in the location,  of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall  fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made  or served at the Corporate Trust Office of the Trustee.  





 






42    The Company may also from time to time designate one or more other offices or agencies where the Notes  may be presented or surrendered for any or all such purposes and may from time to time rescind such designations;  provided that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain  an office or agency in the United States for such purposes. The Company shall give prompt written notice to the  Trustee of any such designation or rescission and of any change in the location of any such other office or agency.  The Company hereby designates the Corporate Trust Office of the Trustee as one such office or agency of  the Company in accordance with Section 2.3.  SECTION 4.3. Provision of Financial Information.   (a) Whether or not the Company is subject to Section 13(a) or 15(d) of the Exchange Act, or  any successor provision thereto, the Company shall provide to the Trustee and Holders the annual reports on  Form 10-K, quarterly reports on Form 10-Q and current reports on Form 8-K which the Company would  have been required to file with the SEC pursuant to such Section 13(a) or 15(d), or any successor provision  thereto, if the Company were so required, such documents to be provided to the Trustee and Holders on or  prior to the respective dates by which the Company would have been required to file such documents with  the SEC if the Company were so required; provided that (A) any such reports and documents filed with the  SEC pursuant to its Electronic Data Gathering, Analysis and Retrieval system (“EDGAR”) (or any successor  system) or made publicly available on the Company’s website shall be deemed to have been delivered to the  Trustee and the Holders of Notes for purposes of the foregoing requirements and (B) if the Company is no  longer subject to Section 13(a) or 15(d) of the Exchange Act, or any successor provision thereto, then (x) no  current reports on Form 8-K shall be required to be furnished if the Company determines in its good faith  judgment that the applicable event requiring a current report on Form 8-K is not material to the Holders or  the business, assets, operations, financial position or prospects of the Company and its Restricted  Subsidiaries, taken as a whole; and (y) such annual, quarterly or current reports need not include any exhibits  of Item 601 of Regulation S-K (except for financial statements of the Company) and shall not be required to  comply with (i) Sections 302 and 404 of the Sarbanes-Oxley Act of 2002, and related Items 307 and 308 of  Regulation S-K; (ii) Items 201, 402, 405, 406 and 407 of Regulation S-K; (iii) Section 13(e) of the Exchange  Act (relating to the Iran Threat Reduction and Syrian Human Rights Act); (iv) Form SD (relating to conflict  minerals); (v) Items 14 and 16 of Form 10-K or (v) Regulation G under the Exchange Act or Item 10(e) of  Regulation S-K promulgated by the SEC with respect to any non-GAAP financial measures contained  therein.  (b) So long as any of the Notes remain outstanding, if at any time the Company is not subject  to Section 13(a) or 15(d) under the Exchange Act, the Company will make available to any market making  financial institution, securities analyst, prospective purchaser of Notes or beneficial owner of Notes, upon  their request, the information required by Rule 144A(d)(4) under the Securities Act, until such time as the  Holders of the Notes are able to sell all such Notes immediately without restriction pursuant to the provisions  of Rule 144 under the Securities Act, or any successor provision thereto.  (c) Within a reasonably prompt period of time after the date the annual or quarterly report for  the prior fiscal period has been filed or furnished pursuant to this Section 4.3, the Company shall also hold  live quarterly conference calls to discuss the Company’s financial condition and results of operations for the  relevant reporting period (an “Earnings Call”). No fewer than three Business Days prior to the date such  Earnings Call is to be held, the Company shall issue a press release to the appropriate U.S. wire services  announcing such Earnings Call, which press release shall contain the time and the date of such Earnings Call  and either include information on how to access such Earnings Call or direct the recipients thereof to contact  an individual at the Company (for whom contact information shall be provided in such notice) to obtain  information on how to access such Earnings Call.  (d) In the event that any direct or indirect parent company of the Company becomes a  guarantor of the Notes, the Company may satisfy its obligations under this Section 4.3 with respect to  financial information relating to the Company by furnishing financial information relating to such parent  company; provided that the same is accompanied by consolidating information that explains in reasonable  





 






43    detail the differences between the information relating to such parent, on the one hand, and the information  relating to the Company and its Subsidiaries on a standalone basis, on the other hand.  (e) If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries and such  Unrestricted Subsidiaries, either individually or collectively, would otherwise have been a Significant  Subsidiary, then the annual and quarterly financial information required by this Section 4.3 shall include a  reasonably detailed presentation, as determined in good faith by senior management of the Company, either  on the face of the financial statements or in the footnotes to the financial statements or in the “Management’s  Discussion and Analysis of Financial Condition and Results of Operations” section, of the financial condition  and results of operations of the Company and its Restricted Subsidiaries separate from the financial condition  and results of operations of the Unrestricted Subsidiaries.  (f) Delivery of reports and documents to the Trustee is for informational purposes only and  the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or  determinable from information contained therein, including the Company’s or any Subsidiary Guarantor’s,  as the case may be, compliance with any of its covenants under this Indenture (as to which the Trustee is  entitled to rely exclusively on an Officer’s Certificate of the Company). The Trustee shall have no obligation  or responsibility to determine whether the Company is required to file any report or other information with  the SEC, whether the Company’s information is available on EDGAR (or any successor system) or whether  the Company has otherwise delivered any notice or report in accordance with the requirements specified in  this Section 4.3.  SECTION 4.4. Compliance Certificate. The Company shall deliver to the Trustee, within 120 days  after the end of each fiscal year beginning with the fiscal year ending September 30, 2021, an Officer’s Certificate  stating that a review of the activities of the Company and its Subsidiary Guarantors during the preceding fiscal year  has been made under the supervision of the signing Officer with a view to determining whether each has kept,  observed, performed and fulfilled its obligations under this Indenture, and further stating, as to each such Officer  signing such certificate, that, to his or her knowledge, each entity has kept, observed, performed and fulfilled each and  every covenant contained in this Indenture and is not in default in the performance or observance of any of the terms,  provisions and conditions of this Indenture (or, if a Default or Event of Default shall have occurred, describing all  such Defaults or Events of Default of which he or she may have knowledge and what action the Company is taking  or proposes to take with respect thereto).   The Company shall, so long as any of the Notes are outstanding, deliver to the Trustee, within 30 days after  any Officer becomes aware of any Default or Event of Default, an Officer’s Certificate specifying such Default or  Event of Default and what action the Company is taking or proposes to take with respect thereto.  SECTION 4.5. Reserved.   SECTION 4.6. Stay, Extension and Usury Laws. The Company and each of the Subsidiary Guarantors  covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon, plead, or in any manner  whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at  any time hereafter in force, that may affect the covenants or the performance of this Indenture, and the Company and  each of the Subsidiary Guarantors (to the extent that it may lawfully do so) hereby expressly waives all benefit or  advantage of any such law, and covenants that it shall not, by resort to any such law, hinder, delay or impede the  execution of any power herein granted to the Trustee, but shall suffer and permit the execution of every such power  as though no such law has been enacted.  SECTION 4.7. Limitation on Restricted Payments.  (a) The Company shall not, and shall not permit any Restricted Subsidiary to:  (1) declare or pay any dividend on, or make any distribution (including any payment  in connection with any merger or consolidation derived from assets of the Company or any  





 






44    Restricted Subsidiary) in respect of its Capital Stock or to the holders thereof in their capacity as  holders of Capital Stock, other than:  (i) any dividends or distributions by the Company payable solely in shares  of its Capital Stock (other than Disqualified Capital Stock) or in options, warrants or other rights to  acquire its Capital Stock (other than Disqualified Capital Stock), and  (ii) in the case of a Restricted Subsidiary, dividends or distributions payable  to the Company or a Restricted Subsidiary or, in the case of dividends or distributions made by a  Restricted Subsidiary that is not wholly owned, dividends or distributions made on a pro rata basis  (or on a basis more favorable to the Company);  (2) purchase, redeem or otherwise acquire or retire for value any Capital Stock of the  Company or any parent thereof, other than in exchange for Capital Stock (other than Disqualified  Capital Stock) of the Company;  (3) make any Investment in any Person, other than a Permitted Investment; and  (4) redeem, repurchase, defease, prepay or otherwise acquire or retire for value, prior  to any scheduled maturity, repayment or sinking fund payment, any Subordinated Debt (other than  Debt owed by the Company or any Restricted Subsidiary of the Company to another Restricted  Subsidiary of the Company or the Company, or any such payment on Debt due within one year of  any scheduled maturity, repayment or sinking fund payment date)   (each of clauses (1) through (4) of this Section 4.7 being a “Restricted Payment”) unless:  (i) no Event of Default, or an event that with the passing of time or the giving of  notice, or both, would constitute an Event of Default, has occurred and is continuing or would result  from such Restricted Payment;  (ii) after giving pro forma effect to such Restricted Payment as if such Restricted  Payment had been made at the beginning of the applicable four-fiscal-quarter period, the Company  could Incur at least $1.00 of additional Debt pursuant to Section 4.9(a); and  (iii) upon giving effect to such Restricted Payment, the aggregate of all Restricted  Payments declared or made subsequent to the Issue Date (other than pursuant to clauses (2), (3), (5),  (7), (8), (9) and (10) of Section 4.7(b)) does not exceed the sum of (the amount of such sum, the  “Available Amount”):  (1) 50% of cumulative Consolidated Net Income (or, in the case  Consolidated Net Income shall be negative, less 100% of such deficit) of the Company  since the beginning of the fiscal quarter in which the Issue Date occurs through the last day  of the last full fiscal quarter ending immediately preceding the date of such Restricted  Payment for which internal financial statements prepared on a consolidated basis in  accordance with GAAP are available (taken as a single accounting period); plus   (2) (i) 100% of the aggregate net cash proceeds, and the Fair  Market Value of property other than cash, in each case received by the Company or a  Restricted Subsidiary after the Issue Date from contributions of capital or the issuance and  sale (other than to a Subsidiary of the Company) of Capital Stock (other than Disqualified  Capital Stock) of the Company or any options, warrants or other rights to acquire Capital  Stock (other than Disqualified Capital Stock) of the Company, or any net payment received  by the Company in connection with the termination or settlement of options relating to its  Capital Stock, provided that (A) any such net proceeds received by the Company from an  





 






45    employee stock ownership plan financed by loans from the Company or a Subsidiary of  the Company shall be included only to the extent such loans have been repaid with cash on  or prior to the date of determination and (B) any such net proceeds utilized in connection  with the Incurrence of Contribution Debt shall be excluded, (ii) 100% of the aggregate net  cash proceeds, and the Fair Market Value of property other than cash, in each case received  by the Company or a Restricted Subsidiary after the Issue Date from the issuance and sale  of convertible or exchangeable Debt of the Company or a Restricted Subsidiary that has  been converted into or exchanged for Capital Stock (other than Disqualified Capital Stock  and other than by or from a Subsidiary of the Company) of the Company, provided that  any such net proceeds received by the Company from an employee stock ownership plan  financed by loans from the Company or a Subsidiary of the Company shall be included  only to the extent such loans have been repaid with cash on or prior to the date of  determination, and (iii) without duplication, any reduction of Debt of the Company or a  Restricted Subsidiary on the consolidated balance sheet of the Company to the extent such  Debt is converted into or exchanged for Capital Stock of the Company (other than  Disqualified Capital Stock) after the Issue Date; plus  (3) to the extent not included in Consolidated Net Income, 100% of  the aggregate net cash proceeds, and the Fair Market Value of property other than cash, in  each case received by the Company or a Restricted Subsidiary after the Issue Date by  means of any sale, disposition, transfer, liquidation or repayment (including by way of  dividends, payment of interest or repayment of principal) of Investments by the Company  and its Restricted Subsidiaries in any Person (other than Permitted Investments) in an  amount up to the amount of the original Investment made in such Person, less the cost of  the disposition of such Investment and net of taxes; plus  (4) in the case of a designation of an Unrestricted Subsidiary as a  Restricted Subsidiary or if an Unrestricted Subsidiary has been merged, consolidated or  amalgamated with or into, or transfers or conveys its assets to, or is liquidated into, the  Company or a Restricted Subsidiary of the Company, in each case after the Issue Date, the  Fair Market Value of the Company’s Investment in such Subsidiary (or of the assets  transferred or conveyed, as applicable) at the time of such redesignation, merger,  consolidation, amalgamation, transfer or conveyance, other than to the extent the  Investment constituted a Permitted Investment; plus  (5) $50.0 million.   (b) Notwithstanding the foregoing, Section 4.7(a) will not prohibit:  (1) payment of any dividend on Capital Stock of any class within 60 days after the  declaration thereof, or redemption of any Subordinated Debt within 30 days after giving notice of  redemption thereof, if, on the date when the dividend was declared or such notice of redemption  given, the Company or such Restricted Subsidiary could have paid such dividend or redeemed such  Subordinated Debt in accordance with this Section 4.7;  (2) repayment or refinancing of (i) any Subordinated Debt with Permitted  Refinancing Debt, (ii) any Capital Stock or Subordinated Debt in exchange for, by conversion into  or out of the net proceeds of the substantially concurrent sale (other than from or to a Subsidiary of  the Company or from or to an employee stock ownership plan financed by loans from the Company  or a Subsidiary of the Company) of Capital Stock (other than Disqualified Capital Stock) of the  Company or (iii) any Disqualified Capital Stock of the Company or any Restricted Subsidiary issued  in exchange for, by conversion into or out of the net proceeds of the substantially concurrent sale  (other than from or to a Subsidiary of the Company or from or to an employee stock ownership plan  financed by loans from the Company or a Subsidiary of the Company) of Disqualified Capital Stock  of the Company or such Restricted Subsidiary;   





 






46    (3) repurchases of Capital Stock of the Company or any Restricted Subsidiary in the  ordinary course of business deemed to occur upon the exercise of stock options, warrants and any  other securities that are exercisable or convertible into the Capital Stock of the Company if such  Capital Stock represents a portion of the exercise price or such conversion price of such options,  warrants or other securities;   (4) the Company or any Restricted Subsidiary may pay for the repurchase, retirement  or other acquisition or retirement for value of Capital Stock of it or any direct or indirect parent  thereof held by any future, present or former employee, director, manager, officer or consultant (or  any Affiliates, spouses, former spouses, other immediate family members, successors, executors,  administrators, heirs, legatees or distributees of any of the foregoing) of the Company or any of its  Subsidiaries pursuant to any employee, management, director or manager equity plan, stock option  plan or any other benefit plan or any agreement (including any stock subscription or shareholder  agreement) with any employee, director, manager, officer or consultant of Company or any  Subsidiary; provided that such payments in any fiscal year do not exceed $20.0 million, provided  further that any unused portion of such amount for any calendar year may be carried forward to  succeeding calendar years so long as the aggregate amount of all Restricted Payments made pursuant  to this clause (4) in any calendar year (after giving effect to such carry-forward) shall not exceed  $40.0 million;  (5) the Company or any Restricted Subsidiary may (a) pay cash in lieu of issuing  fractional shares of Capital Stock in connection with any dividend, split or combination thereof or  upon the exercise of options, warrants, rights or other securities that are exercisable or convertible  into Capital Stock of the Company or in connection with any merger, consolidation, amalgamation  or other business combination permitted under this Indenture and (b) honor any conversion request  by a holder of convertible Debt and make cash payments in lieu of fractional shares in connection  with any such conversion and may make payments on convertible Debt (other than Subordinated  Debt) in accordance with its terms;  (6) upon the occurrence of a Change of Control or an Asset Disposition and within  60 days after the completion of the Offer to Purchase under Section 4.10 or Section 4.13 (including  the purchase of all Notes tendered and required to be purchased), any purchase, repurchase,  redemption, defeasance, acquisition or other retirement for value of Subordinated Debt required  under the terms thereof as a result of such Change of Control or Asset Disposition at a purchase or  redemption price not to exceed 101% (in the case of a Change of Control) or 100% (in the case of  an Asset Disposition) of the outstanding principal amount thereof, plus accrued and unpaid interest  thereon, if any; provided that, in the case of an Asset Disposition, such purchase, repurchase,  redemption, defeasance, acquisition or other retirement for value of Subordinated Debt does not  exceed the Net Available Proceeds from such Asset Disposition;   (7) (i) repurchases of Capital Stock from, or loans or payments made to, any future,  present or former director, officer, employee, manager or consultant of the Company or any  Subsidiary of the Company (or their respective Affiliates, estates or immediate family members), in  each case, to fund payments made in respect of withholding taxes or similar taxes payable or  expected to be payable by any future, present or former director, officer, employee, manager or  consultant of the Company or any Subsidiary of the Company (or their respective Affiliates, estates  or immediate family members) in connection with the exercise of stock options or the grant, vesting  or delivery of Capital Stock, and the corresponding payments of such taxes and (ii) loans or advances  to officers, directors, employees, managers or consultants of the Company or any Subsidiary of the  Company in connection with such Person’s purchase of Capital Stock of the Company; provided  that no cash is actually advanced pursuant to this clause (ii) other than to pay taxes due in connection  with such purchase;  (8) the declaration and payment of dividends or distributions to holders of any class  or series of Disqualified Capital Stock of the Company or any of its Restricted Subsidiaries and any  





 






47    class or series of Preferred Stock of any Restricted Subsidiaries issued or Incurred after the Issue  Date in accordance with Section 4.9, in each case to the extent that such dividends or distributions  are included in the definition of Consolidated Fixed Charges;   (9) payments or distributions to satisfy dissenters’ rights, pursuant to or in connection  with a consolidation, merger, amalgamation or transfer of assets that complies with the provisions  of this Indenture;  (10) Restricted Payments made with Excluded Contributions;  (11) Restricted Payments so long as, after giving effect thereto, the Consolidated Total  Net Leverage Ratio of the Company would not exceed 3.50 to 1.00; and  (12) other Restricted Payments in an aggregate amount not to exceed the greater of (i)  $150.0 million and (ii) 9.0% of the Company’s Consolidated Total Assets calculated on a Pro Forma  Basis;  provided, however, that at the time of, and after giving effect to, any Restricted Payment permitted under  clauses (8), (11) and (12), no Default shall have occurred and be continuing or would otherwise occur as a  consequence thereof.  Excluded Contributions and the amount of net proceeds from any exchange for, conversion into or  sale of Capital Stock of the Company pursuant to Section 4.7(b)(2) shall be excluded from the calculation of  the amount available for Restricted Payments pursuant to Section 4.7(a)(4)(iii)(2).   (c) For purposes of this Section 4.7, if a particular Restricted Payment involves a non-cash  payment, including a distribution of assets, then such Restricted Payment shall be deemed to be an amount  equal to the cash portion of such Restricted Payment, if any, plus an amount equal to the Fair Market Value  of the non-cash portion of such Restricted Payment.   (d) For purposes of this Section 4.7, if any Investment or Restricted Payment (or a portion  thereof) would be permitted pursuant to one or more provisions described above and/or one or more of the  clauses of the definition of Permitted Investments, the Company may divide and classify (but not later divide  or reclassify) such Investment or Restricted Payment (or a portion thereof) in any manner that complies with  this Section 4.7. Notwithstanding the foregoing, if the Company or any Restricted Subsidiary has made an  Investment in another Person that is not a Restricted Subsidiary, and such Person later becomes a Restricted  Subsidiary of the Company, then the Investment in such Person made prior to the time such Person became  a Restricted Subsidiary shall be deemed to have been made pursuant to clause (1) of the definition of  Permitted Investment.  (e) Notwithstanding any basket or exception in this Section 4.7 or the definition of Permitted  Investments that would otherwise permit any contribution, sale, assignment, transfer or other disposition or  investment of any intellectual property to or in any Unrestricted Subsidiary, this Section 4.7 shall prohibit  such contributions, sales, assignments, transfers, dispositions or investments of intellectual property, except  for in the case of intellectual property that in the reasonable business judgment of the Company is immaterial  to, or no longer used in or necessary for, the conduct of the business of the Company or any Restricted  Subsidiary.  SECTION 4.8. Limitation on Dividend and Other Restrictions Affecting Restricted Subsidiaries.   (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or  indirectly, create or otherwise cause or suffer to exist or become effective any encumbrance or restriction on  the ability of any Restricted Subsidiary:  





 






48    (1) to pay dividends (in cash or otherwise) or make any other distributions in respect  of its Capital Stock owned by the Company or any other Restricted Subsidiary or pay any Debt or  other obligation owed to the Company or any other Restricted Subsidiary (it being understood that  the priority of any Preferred Stock in receiving dividends, distributions or liquidating distributions  prior to dividends, distributions or liquidating distributions being paid on Capital Stock shall not be  deemed a restriction on the ability to make distributions on Capital Stock);  (2) to make loans or advances to the Company or any other Restricted Subsidiary; or  (3) otherwise to transfer any of its property or assets to the Company or any other  Restricted Subsidiary.  (b) Notwithstanding the restrictions in Section 4.8(a), the Company may, and may permit any  Restricted Subsidiary to, suffer to exist any such encumbrance or restriction:  (1) pursuant to any agreement in effect on the Issue Date (including the Senior  Secured Credit Facilities);   (2) pursuant to this Indenture, the Notes and the Note Guarantees;  (3) pursuant to any agreement or Capital Stock of a Person that has been entered into,  or issued, prior to the date on which such Person became a Restricted Subsidiary and not entered  into, or issued, in connection with, or anticipation of, becoming a Restricted Subsidiary, which  encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person,  other than the Person so acquired;  (4) in the case of a restriction described in Section 4.8(a)(3), contained in any security  agreement securing Debt of a Restricted Subsidiary otherwise permitted under this Indenture, but  only to the extent such restrictions restrict the transfer of the assets or property subject to such  security agreement;   (5) in the case of a restriction described in Section 4.8(a)(3), consisting of customary  restrictions in leases, subleases, licenses or asset sale agreements and other similar contracts  otherwise permitted under this Indenture so long as such restrictions relate only to the assets subject  thereto;   (6) any restrictions on cash or other deposits imposed by agreements entered into in  the ordinary course of business;   (7) customary provisions in shareholders agreements, joint venture agreements,  organizational documents or similar binding agreements relating to any JV Entity or non-Wholly  Owned Restricted Subsidiary and other similar agreements applicable to JV Entities and non- Wholly Owned Restricted Subsidiaries permitted under Section 4.7 and applicable solely to such  JV Entity or non-Wholly Owned Restricted Subsidiary and the Capital Stock issued thereby;  (8) in bona fide contracts for the sale of any property or assets, including customary  restrictions with respect to a Subsidiary imposed pursuant to an agreement which has been entered  into for the sale or disposition of all or substantially all of the Capital Stock or assets of such  Subsidiary; provided that such restriction terminates if such transaction is closed or abandoned;  (9) customary net worth provisions contained in real property leases or contracts with  customers or suppliers entered into by Restricted Subsidiaries of the Company; provided that the  Company has determined in good faith that such net worth provisions could not reasonably be  





 






49    expected to impair the ability of the Company and its Restricted Subsidiaries to meet their ongoing  obligations;  (10) restrictions or conditions upon the transfers of assets encumbered by a Lien  permitted under Section 4.12, to the extent such restriction applies only to the property subject to  such Lien;  (11) any encumbrance or restriction contained in the terms of any Debt or Capital  Stock otherwise permitted to be Incurred under this Indenture if the Company determines that any  such encumbrance or restriction either (i) will not materially affect the Company’s ability to make  principal or interest payments on the Notes and such restrictions are not materially less favorable to  Holders of Notes than is customary in comparable financings or (ii) are not materially more  restrictive, taken as a whole, with respect to any Restricted Subsidiary than those in effect on the  Issue Date with respect to that Restricted Subsidiary pursuant to agreements in effect on the Issue  Date or those contained in this Indenture or the Senior Secured Credit Facilities, in each case as  determined in good faith by the Board of Directors or an Officer of the Company;  (12) any encumbrance or restriction arising or agreed to in the ordinary course of  business, not relating to any Debt or Capital Stock, and that, individually or in the aggregate, (x) do  not detract from the value of the property or assets of the Company or any Restricted Subsidiary in  any manner material to the Company or any Restricted Subsidiary or (y) do not materially impair  the Company’s ability to make future principal, premium or interest payments on the Notes, in each  case under this clause (12), as determined by the Company in good faith;  (13) any encumbrances or restrictions of the type referred to in clauses (1), (2) and (3)  of Section 4.8(a) imposed by any amendments, modifications, restatements, renewals, increases,  supplements, refundings, replacements or refinancings of the contracts, instruments or obligations  referred to in clauses (1) through (12) of this Section 4.8; provided that such encumbrances and  restrictions contained in any such amendment, modification, restatement, renewal, increase,  supplement, refunding, replacement or refinancing are, in the good faith judgment of the Company,  not materially more restrictive, taken as a whole, than the encumbrances and restrictions prior to  such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement  or refinancing; or  (14) if such encumbrance or restriction is the result of applicable laws or regulations.   SECTION 4.9. Limitation on Debt.  (a) The Company shall not, and shall not permit any Restricted Subsidiary to, Incur any Debt  except that the Company and any Subsidiary Guarantor may Incur Debt if, after giving Pro Forma Effect to  the Incurrence of such Debt and the receipt and application of the proceeds thereof, the Consolidated  Coverage Ratio of the Company would not be less than 2.00 to 1.00.  (b) Notwithstanding Section 4.9(a), the following Debt may be Incurred (collectively, the  “Permitted Debt”):  (1) Debt of the Company or any Restricted Subsidiary under one or more Debt  Facilities in an aggregate principal amount Incurred under this clause (1), including all Debt Incurred  under Debt Facilities to refund or refinance any Debt Incurred pursuant to this clause (1), at any one  time outstanding not to exceed (w) $400.0 million plus (x) the greater of (A) $500.0 million and (B)  100% of the Company’s Consolidated EBITDA for the Test Period, calculated on a Pro Forma  Basis; plus (y) the greater of (A) $325.0 million and (B) the Borrowing Base; plus (z) an additional  amount of Debt provided that, at the time of Incurrence and after giving effect to the Incurrence of  such Debt and the application of the proceeds therefrom on such date, the Consolidated First Lien  





 






50    Net Leverage Ratio of the Company would not exceed 3.75 to 1.00 (assuming for purposes of the  calculation of the Consolidated First Lien Net Leverage Ratio under this clause (1), that any  commitments with respect to Debt under any revolving Debt Facility (including the ABL Credit  Facility) permitted to be Incurred under this clause (1) are fully drawn on such date); provided that  solely for purposes of calculating the Consolidated First Lien Net Leverage Ratio under this clause  (1), any outstanding Debt Incurred under this clause (1) that is unsecured shall nevertheless be  deemed to be secured by a Lien on a first lien basis;  (2) Debt of the Company or any Restricted Subsidiary outstanding on the Issue Date  and not otherwise referred to in clauses (1) and (4) of this Section 4.9(b);  (3) Debt owed by the Company to any Restricted Subsidiary or Debt owed by a  Restricted Subsidiary to the Company or a Restricted Subsidiary; provided, however, that upon  either the transfer or other disposition by such Restricted Subsidiary or the Company of any Debt  so permitted to a Person other than the Company or another Restricted Subsidiary or the issuance  (other than directors’ qualifying shares), sale, lease, transfer or other disposition of shares of Capital  Stock (including by consolidation or merger) of such Restricted Subsidiary to a Person other than  the Company or another Restricted Subsidiary such that it ceases to be a Restricted Subsidiary, the  provisions of this clause (3) shall no longer be applicable to such Debt and such Debt shall be  deemed to have been Incurred at the time of such transfer or other disposition;  (4) Debt consisting of the Notes (other than any Additional Notes) and the Note  Guarantees (other than in respect of any Additional Notes);  (5) Guarantees by the Company or any Restricted Subsidiary of any Debt of the  Company or a Restricted Subsidiary permitted to be Incurred under this Indenture;  (6) Purchase Money Debt in an aggregate principal amount, including all Debt  Incurred to refund or refinance any Debt Incurred pursuant to this clause (6), not to exceed, at any  one time outstanding, the greater of (i) $60.0 million and (ii) 3.0% of the Company’s Consolidated  Total Assets calculated on a Pro Forma Basis;  (7) Debt in respect of Hedging Obligations Incurred not for speculative purposes;  (8) Debt representing deferred compensation to employees of the Company and the  Restricted Subsidiaries Incurred in the ordinary course of business;   (9) Debt Incurred by the Company or any of the Restricted Subsidiaries in a Permitted  Acquisition or any other Investment permitted under this Indenture or in any Asset Disposition, in  each case to the extent constituting indemnification obligations or obligations in respect of purchase  price (including earn-outs) or other similar adjustments;  (10) Debt consisting of obligations of the Company or any of the Restricted  Subsidiaries under deferred compensation or other similar arrangements incurred by such Person in  connection with Permitted Acquisitions or any other Investment permitted under this Indenture;  (11) Cash Management Obligations and other Debt in respect of netting services,  automatic clearinghouse arrangements, overdraft protections and similar arrangements in each case  incurred in the ordinary course of business;   (12) Debt consisting of (a) the financing of insurance premiums or (b) take or pay  obligations contained in supply arrangements, in each case, in the ordinary course of business;  





 






51    (13) Debt Incurred by the Company or any of the Restricted Subsidiaries in respect of  letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments  issued or created in the ordinary course of business, including in respect of workers compensation  claims, health, disability or other employee benefits or property, casualty or liability insurance or  self-insurance or other Debt with respect to reimbursement-type obligations regarding workers  compensation claims;  (14) obligations in respect of performance, bid, appeal and surety bonds and  performance and completion guarantees and similar obligations provided by the Company or any of  the Restricted Subsidiaries or obligations in respect of letters of credit, bank guarantees or similar  instruments related thereto, in each case in the ordinary course of business or consistent with past  practice;   (15) Debt of Restricted Subsidiaries that are not Subsidiary Guarantors, and  Guarantees thereof by Restricted Subsidiaries that are not Subsidiary Guarantors, in an aggregate  principal amount Incurred pursuant to this clause (15), including all Debt Incurred to refund or  refinance any Debt Incurred pursuant to this clause (15), at any one time outstanding not to exceed  the greater of (i) $175.0 million and (ii) 9.5% of the Company’s Consolidated Total Assets  calculated on a Pro Forma Basis;  (16) Permitted Acquisition Debt;  (17) Contribution Debt;  (18) Permitted Refinancing Debt which is exchanged for or the proceeds of which are  used to refinance or refund, or any extension or renewal of Debt Incurred pursuant to Section 4.9(a)  or pursuant to clauses (2), (4), (16) and (17) of this definition of Permitted Debt and this clause (18);  (19) Debt (a) of a Special Purpose Subsidiary secured by a Lien on all or part of the  assets disposed of in, or otherwise Incurred in connection with, a Financing Disposition or (b)  otherwise Incurred in connection with a Special Purpose Financing; provided that (i) such Debt is  not recourse to the Company or any Restricted Subsidiary that is not a Special Purpose Subsidiary  (other than with respect to Special Purpose Financing Undertakings); (ii) in the event such Debt  shall become recourse to the Company or any Restricted Subsidiary that is not a Special Purpose  Subsidiary (other than with respect to Special Purpose Financing Undertakings), such Debt will be  deemed to be, and must be classified by the Company as, Incurred at such time (or at the time  initially Incurred) under one or more of the other provisions of this Section 4.9 for so long as such  Debt shall be so recourse; and (iii) in the event that at any time thereafter such Debt shall comply  with the provisions of the preceding subclause (i), the Company may classify such Debt in whole or  in part as Incurred under this clause (19);  (20) in addition to the items referred to in clauses (1) through (19) of this Section 4.9,  Debt of the Company or any Restricted Subsidiary which, together with any other outstanding Debt  Incurred pursuant to this clause (20), including all Debt Incurred to refund or refinance any Debt  Incurred pursuant to this clause (20), has an aggregate principal amount at any one time outstanding  not to exceed the greater of (i) $175.0 million and (ii) 9.5% of the Company’s Consolidated Total  Assets calculated on a Pro Forma Basis; and  (21) all premiums (if any), interest (including post-petition interest), fees, expenses,  charges and additional or contingent interest on obligations described in clauses (1) through (20) of  this Section 4.9.  (c) For purposes of determining compliance with, and the outstanding principal amount of any  particular Debt Incurred pursuant to, and in compliance with, this Section 4.9:  





 






52    (1) in the event that Debt meets the criteria of more than one of the types of Debt  described in Section 4.9(a) and Section 4.9(b), the Company, in its sole discretion, may classify such  item of Debt on the date of Incurrence (or later classify or reclassify such Debt, in its sole discretion)  in any manner permitted by this covenant and shall only be required to include the amount and type  of such Debt in one of such clauses; provided that any Debt outstanding under the Senior Secured  Credit Facilities on the Issue Date shall at all times be treated as Incurred under clause (1) of the  definition of Permitted Debt and may not be reclassified;  (2) if obligations in respect of letters of credit are Incurred pursuant to a Debt Facility  and relate to other Debt, then such letters of credit shall be treated as Incurred pursuant to clause (1)  of the definition of Permitted Debt and such other Debt shall not be included;  (3) except as provided in Section 4.9(c)(2), Guarantees of, or obligations in respect  of letters of credit relating to, Debt which is otherwise included in the determination of a particular  amount of Debt shall not be included in the determination of such amount of Debt, provided that the  Incurrence of such Debt was in compliance with this covenant;  (4) the principal amount of any Disqualified Capital Stock of the Company or a  Restricted Subsidiary will be equal to the greater of the maximum redemption or repurchase price  (not including, in either case, any redemption or repurchase premium) or the liquidation preference  thereof;  (5) Debt permitted by this covenant need not be permitted solely by reference to one  provision permitting such Debt but may be permitted in part by one such provision and in part by  one or more other provisions of this Section 4.9 permitting such Debt;  (6) the amount of Debt issued at a price that is less than the principal amount thereof  will be equal to the amount of the liability in respect thereof determined in accordance with GAAP;  and  (7) (i) if any Debt is Incurred to refinance Debt initially Incurred (or, Debt Incurred  to refinance Debt initially Incurred) in reliance on any provision of this Section 4.9 measured by  reference to a percentage of Consolidated EBITDA for the Test Period or Consolidated Total Assets,  and such refinancing would cause the percentage of Consolidated EBITDA for the Test Period or  Consolidated Total Assets restriction to be exceeded if calculated based on the Consolidated  EBITDA for the Test Period or Consolidated Total Assets on the date of such refinancing, such  percentage of Consolidated EBITDA for the Test Period or Consolidated Total Assets restriction  shall not be deemed to be exceeded (and such newly Incurred Debt shall be deemed permitted) to  the extent the principal amount of such newly Incurred Debt does not exceed the principal amount  of such Debt refinanced, plus the Related Costs Incurred or payable in connection with such  refinancing and (ii) if any Debt is Incurred to refinance Debt initially Incurred (or, Debt Incurred to  refinance Debt initially Incurred) in reliance on any provision of this Section 4.9 measured by  reference to a specified dollar amount restriction, and such refinancing would cause the specified  dollar amount restriction to be exceeded, such specified dollar amount restriction shall not be  deemed to be exceeded (and such newly Incurred Debt shall be deemed permitted) to the extent the  principal amount of such newly Incurred Debt does not exceed the principal amount of such Debt  refinanced, plus the Related Costs Incurred or payable in connection with such refinancing.  (d) The accrual of interest, the accretion of accreted value and the payment of interest in the  form of additional Debt and the payment of dividends in the form of additional shares of Disqualified Capital  Stock will not be deemed to be an Incurrence of Debt for purposes of this Section 4.9.  (e) For purposes of determining compliance with any U.S. dollar-denominated restriction on  the Incurrence of Debt, the U.S. dollar-equivalent principal amount of Debt denominated in a foreign  





 






53    currency shall be calculated based on the relevant currency exchange rate in effect on the date such Debt was  Incurred, in the case of term Debt, or first committed, in the case of revolving credit Debt; provided that if  such Debt is Incurred to refinance other Debt denominated in a foreign currency, and such refinancing would  cause the applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency  exchange rate in effect on the date of such refinancing, such U.S. dollar-denominated restriction shall be  deemed not to have been exceeded so long as the principal amount of such refinancing Debt does not exceed  the principal amount of such Debt being refinanced, plus Related Costs incurred or payable in connection  with such refinancing. Notwithstanding any other provision of this Section 4.9, the maximum amount of Debt  that the Company may Incur pursuant to this Section 4.9 shall not be deemed to be exceeded solely as a result  of fluctuations in the exchange rate of currencies.  SECTION 4.10. Limitation on Asset Dispositions.  (a) The Company shall not, and shall not permit any Restricted Subsidiary to, make any Asset  Disposition unless:  (1) the Company or the Restricted Subsidiary, as the case may be, receives  consideration for such Asset Disposition at least equal to the Fair Market Value (measured as of the  date of the definitive agreement with respect to such Asset Disposition) for the assets or Capital  Stock sold or disposed of; and  (2) at least 75% of the consideration for such Asset Disposition consists of:  (i) cash or Cash Equivalents;  (ii) the assumption of Debt of the Company or such Restricted Subsidiary (other than  Subordinated Debt) and release, by all applicable creditors in writing, from all liability on the Debt  assumed;  (iii) the assumption by the purchaser of Debt (other than Subordinated Debt) of any  Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition;  provided the Company and each Restricted Subsidiary are released from any Guarantee of payment  of such Debt in connection with such Asset Disposition;  (iv) Replacement Assets;  (v) Designated Noncash Consideration; or  (vi) any combination of the foregoing;  provided that the amount of any securities or assets received by the Company or such Restricted  Subsidiary that is converted into cash within 180 days of the closing of such Asset Disposition shall  be deemed to be cash for purposes of this Section 4.10(a) (to the extent of the cash received).   (b) Within 365 days after the receipt of any Net Available Proceeds from an Asset Disposition,  the Company (or the applicable Restricted Subsidiary, as the case may be) may apply such Net Available  Proceeds at its option, in any combination of the following:  (1) to repay, repurchase or otherwise retire (i) any Secured Debt of the Company or  any Subsidiary Guarantor or (ii) any Debt of any Restricted Subsidiary of the Company that is not  a Subsidiary Guarantor, in each case, other than Debt owed to the Company or an Affiliate of the  Company;   





 






54    (2) to repay, repurchase or otherwise retire any Debt of the Company or any  Subsidiary Guarantor that is not Subordinated Debt, other than Debt owed to the Company or an  Affiliate of the Company; provided that the Company shall (i) equally and ratably reduce obligations  under the Notes, as provided in Section 3.7 or through open market purchases, private transactions  or otherwise, in each case, at or above 100% of the principal amount thereof or (ii) make an offer  (in accordance with the procedures set forth below for an Offer to Purchase) to all Holders to  purchase their Notes on a ratable basis with such Debt at 100% of the principal amount thereof, in  each case, plus the amount of accrued but unpaid interest on the Notes that are purchased or  redeemed;  (3) to acquire Replacement Assets or make capital expenditures; provided that, the  Company or such Restricted Subsidiary will be deemed to have complied with its obligations under  this Section 4.10(b) if it enters into a binding commitment to acquire Replacement Assets prior to  365 days after the receipt of the applicable Net Available Proceeds and such acquisition of  Replacement Assets is consummated prior to 545 days after the date of receipt of the applicable Net  Available Proceeds; provided, further, that upon any abandonment or termination of such  commitment, the Net Available Proceeds not so applied shall constitute Excess Proceeds and be  applied as set forth in Section 4.10(c); or   (4) any combination of the foregoing.   (c) Any Net Available Proceeds that are not applied or invested as provided in Section 4.10(b)  will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $20.0 million,  or earlier, at the Company’s election, the Company will apply the Excess Proceeds to the repayment of the  Notes and any other Pari Passu Debt outstanding with similar provisions requiring the Company to make an  Offer to Purchase such Debt with the proceeds from any Asset Disposition as follows:  (1) the Company will make an Offer to Purchase from all Holders of the Notes in  accordance with the procedures set forth in this Indenture in the maximum principal amount  (expressed in amounts of $2,000 or integral multiples of $1,000 in excess thereof) of Notes that may  be purchased out of an amount (the “Note Amount”) equal to the product of such Excess Proceeds  multiplied by a fraction, the numerator of which is the outstanding principal amount of the Notes,  and the denominator of which is the sum of the outstanding principal amount of the Notes and such  Pari Passu Debt (subject to proration in the event such amount is less than the aggregate Offered  Price (as defined below) for all Notes tendered); and  (2) to the extent required by such Pari Passu Debt, the Company will make an offer  to purchase or otherwise repurchase or redeem Pari Passu Debt (a “Pari Passu Offer”) in an amount  (the “Pari Passu Debt Amount”) equal to the excess of the Excess Proceeds over the Note Amount.  However, in no event will the Company be required to make a Pari Passu Offer in a Pari Passu Debt  Amount exceeding the principal amount of such Pari Passu Debt plus the amount of any premium  required to be paid to repurchase such Pari Passu Debt.   The offer price for the Notes will be payable in cash in an amount equal to 100% of the principal  amount of the Notes plus accrued and unpaid interest, if any, to, but not including, the date such Offer to  Purchase is consummated (the “Offered Price”), in accordance with the procedures set forth in this Indenture.  To the extent that the aggregate Offered Price of the Notes tendered pursuant to the Offer to Purchase is less  than the Note Amount relating to the tendered Notes or the aggregate amount of Pari Passu Debt that is  purchased in a Pari Passu Offer is less than the Pari Passu Debt Amount, the Company may use any remaining  Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes and Pari Passu  Debt surrendered by holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the  Notes and Pari Passu Debt to be purchased on a pro rata basis; provided that, in the case of Global Notes,  beneficial interests in such Notes shall be repurchased on a pro rata basis based on amounts tendered only if  such proration is consistent with the procedures of the Depositary; otherwise, such beneficial interests shall  be selected for repurchase in accordance with such procedures. Upon the completion of the purchase of all  





 






55    the Notes tendered pursuant to an Offer to Purchase and the completion of a Pari Passu Offer, the amount of  Excess Proceeds, if any, shall be reset at zero.  (d) If the Purchase Date is on or after an interest record date and on or before the related interest  payment date, any accrued and unpaid interest, if any, will be paid on the relevant interest payment date to  the Person in whose name a Note is registered at the close of business on such record date and will not be  paid as part of the Offered Price. If the Company becomes obligated to make an Offer to Purchase pursuant  to this Section 4.10, the Notes (in amounts of $2,000 and integral multiples of $1,000 in excess thereof), and  the Pari Passu Debt shall be purchased by the Company, at the option of the Holders thereof, in whole or in  part, on a date that is not earlier than 30 days and not later than 60 days from the date the notice of the Offer  to Purchase is given to Holders, or such later date as may be necessary for the Company to comply with the  requirements under the Exchange Act.  (e) The Company shall comply with all applicable securities laws and regulations in the United  States, including, without limitation, the requirements of Rule 14e-1 under the Exchange Act and any other  applicable laws and regulations in connection with the purchase of Notes pursuant to an Offer to Purchase.  To the extent that the provisions of any applicable securities laws or regulations conflict with this Section  4.10, the Company shall comply with the applicable securities laws and regulations and will not be deemed  to have breached its obligations under this Section 4.10 by virtue of such compliance.   SECTION 4.11. Limitation on Transactions with Affiliates.  (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or  indirectly, enter into or conduct any transaction (including the purchase, sale, lease or exchange of any  property or asset or the rendering of any service) with any Affiliate of the Company involving aggregate  payments or consideration in excess of $15.0 million (an “Affiliate Transaction”), unless:  (1) the terms of such Affiliate Transaction, taken as a whole, are not materially less  favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could  have reasonably been obtained by the Company or such Restricted Subsidiary in a comparable  transaction at the time of such transaction in arms’ length dealings with a Person that is not an  Affiliate or, if in the good faith judgment of the Board of Directors of the Company no comparable  transaction is available with which to compare such Affiliate Transaction, such transaction is  otherwise fair to the Company or such Restricted Subsidiary from a financial perspective; and  (2) in the event such Affiliate Transaction involves an aggregate consideration in  excess of $25.0 million, the terms of such transaction have been approved by a majority of the  members of the Board of Directors of the Company and by a majority of the disinterested members  of such Board of Directors (and such majority or majorities, as the case may be, determines that  such Affiliate Transaction satisfies the criteria in clause (a)(1) of this Section 4.11).  (b) The preceding requirements shall not apply to:  (1) any transaction pursuant to agreements in effect on the Issue Date, as these  agreements may be amended, modified, supplemented, extended or renewed from time to time, so  long as any such amendment, modification, supplement, extension or renewal is not more  disadvantageous to the Holders in any material respect in the good faith judgment of the Company,  when taken as a whole, than the terms of the agreements in effect on the Issue Date;  (2) any employment and severance arrangements between the Company or any of its  Subsidiaries and their respective officers and employees in the ordinary course of business and  transactions pursuant to equity incentive plans, stock option plans and employee benefit plans and  arrangements;  





 






56    (3) transactions between or among the Company and/or its Restricted Subsidiaries  and any Guarantees issued by the Company or a Restricted Subsidiary for the benefit of the  Company or a Restricted Subsidiary, as the case may be, in accordance with Section 4.9;   (4) any agreement between any Person and an Affiliate of such Person existing at the  time such Person is acquired by or merged into the Company or any of its Restricted Subsidiaries  (provided that such agreement was not entered into in contemplation of such acquisition or merger)  or any amendment thereto (so long as any such amendment when taken as a whole is not materially  disadvantageous to the Holders in the good faith judgment of the Company as compared to such  agreement as in effect on the date of such acquisition or merger);   (5) the payment of customary fees and reasonable out-of-pocket costs to, and  indemnities provided on behalf of, directors, managers, officers, employees and consultants of the  Company and the Restricted Subsidiaries or any direct or indirect parent of the Company in the  ordinary course of business to the extent attributable to the ownership or operation of the Company  and the Restricted Subsidiaries;   (6) any Restricted Payment or Permitted Investment that is permitted to be made  pursuant to Section 4.7; and  (7) transactions with customers, clients, suppliers or purchasers or sellers of goods or  services, in each case, in the ordinary course of the business of the Company and its Restricted  Subsidiaries and otherwise in compliance with the terms of this Indenture; provided that in the  reasonable determination of the Company, such transactions are on terms when taken as a whole  that are not materially less favorable to the Company or the relevant Restricted Subsidiary than those  that could reasonably have been obtained at the time of such transactions in a comparable transaction  by the Company or such Restricted Subsidiary with an unrelated Person;  (8) the grant, issuance or sale of Capital Stock (other than Disqualified Capital Stock)  to Affiliates of the Company and the granting of registration rights and other customary rights in  connection therewith;   (9) transactions entered into by an Unrestricted Subsidiary with an Affiliate prior to  the redesignation of any such Unrestricted Subsidiary as a Restricted Subsidiary pursuant to Section  4.16; provided that such transactions were not entered into in contemplation of such redesignation  (10) any transaction to the extent the consideration paid by the Company or any  Restricted Subsidiary consists of (i) Capital Stock (excluding Disqualified Capital Stock) of the  Company or (ii) proceeds from the issuance and sale of Capital Stock (excluding Disqualified  Capital Stock) of the Company within 180 days of such issuance and sale;  (11) any transaction with a Person (other than an Unrestricted Subsidiary) that would  constitute an Affiliate Transaction solely because the Company or a Restricted Subsidiary owns  Capital Stock in or otherwise controls such Person; provided that, no Affiliate of the Company or  any of its Subsidiaries other than the Company or a Restricted Subsidiary shall have a beneficial  interest or otherwise participate in such Person;  (12) transactions between the Company or any of its Restricted Subsidiaries and any  Person that would constitute an Affiliate Transaction solely because such Person is a director or  such Person has a director which is also a director of the Company; provided, however, that such  director abstains from voting as a director of the Company on any matter involving such other  Person;  





 






57    (13) any transaction as to which the Company delivers to the Trustee a written opinion  of an investment banking firm of national standing or other recognized independent expert with  experience in appraising the terms and conditions of the type of transaction or series of related  transactions for which an opinion is required stating that the terms of such transaction are not  materially less favorable to the Company or such Restricted Subsidiary than those that could be  obtained in a comparable arm’s-length transaction with an entity that is not an Affiliate; and  (14) transactions in connection with Permitted Tax Restructurings.  SECTION 4.12. Limitation on Liens.   (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly  or indirectly, create, incur or assume any Lien (other than a Permitted Lien) on any property or asset  (including any intercompany notes) of the Company or a Restricted Subsidiary now owned or hereafter  acquired, or assign or convey a right to receive any income or profits from such Liens, to secure (a) any Debt  of the Company unless prior to, or contemporaneously therewith, the Notes are equally and ratably secured  for so long as such other Debt is so secured, or (b) any Debt of any Subsidiary Guarantor, unless prior to, or  contemporaneously therewith, the Note Guarantee of such Subsidiary Guarantor is equally and ratably  secured for so long as such other Debt is so secured; provided, however, that if such Debt is expressly  subordinated to the Notes or a Note Guarantee, the Lien securing such Debt will be subordinated and junior  to the Lien securing the Notes or such Note Guarantee, as the case may be, with the same relative priority as  such Debt has with respect to the Notes or such Note Guarantee.   (b) Notwithstanding the foregoing, any Lien securing the Notes or any Note Guarantee granted  pursuant to this Section 4.12 will be automatically and unconditionally released and discharged upon the  release by the holders of the Debt described in Section 4.12(a) of their Lien on the property or assets of the  Company or any Restricted Subsidiary (including any deemed release upon payment in full of all obligations  under such Debt), at such time as the holders of all such Debt release their Lien on the property or assets of  the Company or such Restricted Subsidiary.  SECTION 4.13. Offer to Purchase upon Change of Control. No later than 30 days after the occurrence  of a Change of Control, the Company will be required to make an Offer to Purchase (a “Change of Control Offer”) all  outstanding Notes at a purchase price equal to 101% of their principal amount plus accrued and unpaid interest, if any,  to, but not including, the date of purchase (the “Change of Control Purchase Price”) (subject to the right of Holders  of record on the relevant record date to receive interest due on an interest payment date that is on or prior to the date  of purchase).  On or before the Purchase Date, the Company will, to the extent lawful, deposit with the Paying Agent an  amount equal to the Change of Control Purchase Price in respect of the Notes or portions of Notes properly tendered.  On the Purchase Date, the Company will, to the extent lawful:  (1) accept for payment all Notes or portions of Notes (of $2,000 or integral multiples of $1,000  in excess thereof) properly tendered pursuant to the Change of Control Offer; and  (2) deliver or cause to be delivered to the Trustee the Notes so accepted together with an  Officer’s Certificate stating the aggregate principal amount of Notes or portions of Notes being purchased  by the Company.   The Paying Agent will promptly deliver to each Holder who has so tendered Notes the Change of Control  Purchase Price for such Notes, and the Trustee will promptly authenticate and mail (or cause to be transferred by  book-entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes so tendered,  if any; provided that each such new Note will be in a principal amount of $2,000 or integral multiples of $1,000 in  excess thereof.  





 






58    If the Purchase Date is on or after an interest record date and on or before the related interest payment date,  any accrued and unpaid interest, if any, will be paid on the relevant interest payment date to the Person in whose name  a Note is registered at the close of business on such record date and will not be paid as part of the Change of Control  Purchase Price.  The Company will not be required to make a Change of Control Offer upon a Change of Control if (i) a third  party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements  set forth in this Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes  validly tendered and not validly withdrawn under such Change of Control Offer, (ii) a notice of redemption for all  outstanding Notes has been given pursuant to Article III, unless and until there is a default in payment of the applicable  redemption price or (iii) in connection with or in contemplation of any publicly announced Change of Control, the  Company has made an offer to purchase (an “Alternate Offer”) any and all Notes validly tendered at a cash price equal  to or higher than the Change of Control Purchase Price and has purchased all Notes validly tendered and not validly  withdrawn in accordance with the terms of the Alternate Offer.  The Company shall comply with all applicable securities laws and regulations in the United States, including,  without limitation, the requirements of Rule 14e-1 under the Exchange Act and any other applicable laws and  regulations in connection with the purchase of Notes pursuant to a Change of Control Offer. To the extent that the  provisions of any applicable securities laws or regulations conflict with this Section 4.13, the Company shall comply  with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this  Section 4.13 by virtue of such compliance.   The provisions under this Indenture relating to the Company’s obligation to make a Change of Control Offer  may be waived, modified or terminated with the written consent of the Holders of a majority in principal amount of  the Notes then outstanding.  Notwithstanding anything to the contrary contained herein, a Change of Control Offer or Alternate Offer may  be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in  place for the Change of Control at the time of making the Change of Control Offer or Alternate Offer.  SECTION 4.14. Corporate Existence. Subject to Article V, the Company shall do or cause to be done  all things necessary to preserve and keep in full force and effect its corporate existence and the corporate, partnership,  limited liability company or other existence of each of the Subsidiary Guarantors in accordance with the respective  organizational documents (as the same may be amended from time to time) of the Company or any such Subsidiary  Guarantor and the rights (charter and statutory), licenses and franchises of the Company and the Subsidiary  Guarantors; provided that the Company shall not be required to preserve any such right, license or franchise, or the  corporate, partnership or other existence of any of the Subsidiary Guarantors, if the Company shall determine that the  preservation thereof is no longer desirable in the conduct of the business of the Company and its Subsidiaries, taken  as a whole, and that the loss thereof is not adverse in any material respect to the Holders.  SECTION 4.15. Future Guarantees. If any Restricted Subsidiary that is not already a Subsidiary  Guarantor Guarantees any Debt of the Company or a Subsidiary Guarantor under, or borrows Debt under, any of the  Senior Secured Credit Facilities on or after the Issue Date, then such Restricted Subsidiary shall execute, within 30  days of the date on which it became a guarantor or borrower with respect to such other Debt, a supplemental indenture  in substantially the form attached hereto as Exhibit B, pursuant to which such Restricted Subsidiary shall become a  Subsidiary Guarantor with respect to the Notes, upon the terms and subject to the release provisions and other  limitations set forth in Article X.  SECTION 4.16. Designation of Restricted and Unrestricted Subsidiaries.   (a) The Company may designate any Restricted Subsidiary to be an “Unrestricted Subsidiary”,  in which event such Subsidiary and each other Person that is then or thereafter becomes a Subsidiary of such  Subsidiary will be deemed to be an Unrestricted Subsidiary, if (1) neither the Company nor any of its other  Subsidiaries (other than another Unrestricted Subsidiary) provides credit support for, or a Guarantee of, any  Debt of such Subsidiary or any Subsidiary of such Subsidiary (including any undertaking, agreement or  





 






59    instrument evidencing such Debt) or is directly or indirectly liable for any Debt of such Subsidiary or any  Subsidiary of such Subsidiary, and no default with respect to any Debt of such Subsidiary or any Subsidiary  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 Debt of the  Company and its Subsidiaries (other than another Unrestricted Subsidiary) to declare a default on such other  Debt or cause the payment thereof to be accelerated or payable prior to its final scheduled maturity, (2) such  Subsidiary does not own any Capital Stock of, or does not own or hold any Lien on any property of, any  other Restricted Subsidiary which is not a Subsidiary of the Subsidiary to be so designated or otherwise an  Unrestricted Subsidiary, (3) at the time of designation, the Company could make a Restricted Payment or  Permitted Investment in an amount equal to the greater of the Fair Market Value and book value of its interest  in such Subsidiary pursuant to Section 4.7, and (4) no Default or Event of Default shall have occurred and  be continuing at the time of, or immediately after giving effect to, such designation. Any such designation  will become effective upon the delivery to the Trustee of an Officer’s Certificate identifying the Restricted  Subsidiary that has been designated as an Unrestricted Subsidiary and certifying that the foregoing conditions  have been satisfied.  (b) The Company may at any time designate any Unrestricted Subsidiary to be a Restricted  Subsidiary of the Company if (1) (a) the Company would be able to Incur at least $1.00 of additional Debt  pursuant to Section 4.9(a), or (b) the Consolidated Coverage Ratio of the Company on a Pro Forma Basis  taking into account such designation would not be less than the Consolidated Coverage Ratio of the Company  immediately prior to such designation; (2) all Liens of such Unrestricted Subsidiary outstanding immediately  following such designation would, if Incurred at such time, have been permitted to be Incurred for all  purposes of this Indenture; and (3) no Default or Event of Default would occur and be continuing following  such designation. Any such designation will become effective upon the delivery to the Trustee of an Officer’s  Certificate identifying the Unrestricted Subsidiary that has been designated as a Restricted Subsidiary and  certifying that the foregoing conditions have been satisfied.   SECTION 4.17. Covenant Suspension.  (a) If on any date following the Issue Date, the Notes have achieved Investment Grade Status  and no Default or Event of Default has occurred and is then continuing, then, upon delivery by the Company  to the Trustee of an Officer’s Certificate to the foregoing effect (such date, a “Suspension Date”), the  Company and the Restricted Subsidiaries will no longer be subject to the following covenants:  (1) Section 4.7;  (2) Section 4.8;  (3) Section 4.9;  (4) Section 4.10;  (5) Section 4.11;   (6) Section 4.15 (but only with respect to any Person that is required to become a  Subsidiary Guarantor during the applicable Suspension Period); and  (7) Section 5.1(a)(3).  During any period that the foregoing covenants (the “Suspended Covenants”) have been suspended  (the “Suspension Period”), the Board of Directors of the Company shall not designate any of the Company’s  Subsidiaries as Unrestricted Subsidiaries pursuant to Section 4.16, unless such designation would have  complied with Section 4.7 and Section 4.16, as if such Sections were in effect during the Suspension Period.  





 






60    (b) Notwithstanding the foregoing, on the date that the Notes cease to have Investment Grade  Status from at least two of the Rating Agencies (such date, a “Reinstatement Date”), the foregoing covenants  will be reinstated as of the Reinstatement Date. Any Debt Incurred during the Suspension Period will be  classified as having been Incurred pursuant to Section 4.9(a) or one of the clauses of Section 4.9(b). To the  extent such Debt would not be so permitted to be Incurred, such Debt will be deemed to have been outstanding  on the Issue Date, so that it is classified as permitted under Section 4.9(b)(2). Calculations under the reinstated  Section 4.7 will be made as if Section 4.7 had been in effect since the Issue Date. In addition, for purposes  of Section 4.11, all agreements and arrangements entered into by the Company and any Restricted Subsidiary  with an Affiliate of the Company during the Suspension Period will be deemed to have been entered into on  or prior to the Issue Date and for purposes of Section 4.8, all contracts entered into during the Suspension  Period that contain any of the restrictions contemplated by such covenant will be deemed to have been  existing on the Issue Date. During the Suspension Period, any reference in the definitions of “Permitted  Liens” and “Unrestricted Subsidiary” to Section 4.9 or any provision thereof shall be construed as if such  covenant were in effect during the Suspension Period. Upon the occurrence of a Suspension Period, the  amount of Excess Proceeds from Net Available Proceeds shall be reset at zero.   (c) Notwithstanding that the Suspended Covenants may be reinstated, no Default or Event of  Default will be deemed to have occurred with respect to the suspended covenants as a result of any actions  taken by the Company or its Restricted Subsidiaries or other events that occurred during the Suspension  Period (or upon termination of the Suspension Period or after that time arising out of events that occurred or  actions taken during the Suspension Period) and the Company and any Restricted Subsidiary will be  permitted, without causing a Default or Event of Default or breach of any kind under this Indenture, to honor,  comply with or otherwise perform any contractual commitments or obligations entered into during a  Suspension Period following a reinstatement of the Suspended Covenants (provided that any such contractual  commitments or obligations were not Incurred in contemplation of any such reinstatement).  (d) Promptly following the occurrence of any suspension or reinstatement of the covenants as  described above, the Company shall provide an Officer’s Certificate to the Trustee regarding such  occurrence. The Trustee shall have no obligation to independently determine or verify if a suspension or  reinstatement has occurred or notify the Holders of any suspension or reinstatement. The Trustee may provide  a copy of such Officer’s Certificate to any Holder of the Notes upon request.   ARTICLE V  SUCCESSORS  SECTION 5.1. Consolidation, Merger, Conveyance, Transfer or Lease.  (a) The Company shall not consolidate with or merge with or into, or convey, transfer or lease  all or substantially all its assets in a single transaction or series of related transactions to, another Person,  unless:  (1) the resulting, surviving or transferee Person (the “Successor Company”) shall be  a corporation, partnership, trust or limited liability company organized and existing under the laws  of the United States of America, any State thereof or the District of Columbia and the Successor  Company (if not the Company) shall expressly assume, by supplemental indenture, executed and  delivered to the Trustee, in form reasonably satisfactory to the Trustee, all the obligations of the  Company under this Indenture and the Notes;  (2) immediately after giving effect to such transaction, no Default or Event of Default  shall have occurred and be continuing;  (3) except in the case of any such consolidation or merger of the Company with or  into a Restricted Subsidiary, immediately after giving Pro Forma Effect to such transaction and  treating any Debt which becomes an obligation of the Company or a Restricted Subsidiary as a result  





 






61    of such transaction as having been Incurred by the Company or such Restricted Subsidiary at the  time of the transaction, either (i) the Company (including any Successor Company) could Incur at  least $1.00 of additional Debt (other than Permitted Debt) pursuant to Section 4.9(a), or (ii) the  Consolidated Coverage Ratio of the Company or such Successor Company is not less immediately  after such transaction than it was immediately before such transaction;  (4) if the Company is not the Successor Company, at the time of such transaction,  each Subsidiary Guarantor will have by supplemental indenture confirmed that its Note Guarantee  shall apply to the Successor Company’s obligations under this Indenture and the Notes; and  (5) the Company shall have delivered to the Trustee an Officer’s Certificate and an  Opinion of Counsel stating that such consolidation, merger, conveyance, transfer or lease and such  supplemental indenture, if any, comply with this Indenture.  Notwithstanding Section 5.1(a)(3), (i) any Restricted Subsidiary may consolidate with or merge with  or into, or convey, transfer or lease all or substantially all its assets in a single transaction or series of related  transactions to the Company so long as no Capital Stock of the Restricted Subsidiary is distributed to any  Person other than the Company; provided that, in the case of a Restricted Subsidiary that merges into the  Company, the Company will not be required to comply with Section 5.1(a)(5); and (ii) the Company may  merge with an Affiliate of the Company solely for the purpose of reincorporating or forming the Company in  another State of the United States or the District of Columbia, so long as the amount of Debt of the Company  and its Restricted Subsidiaries is not increased thereby.  For purposes of this Section 5.1(a), the sale, lease, conveyance, assignment, transfer, or other  disposition of all or substantially all of the properties and assets of one or more Subsidiaries of the Company,  which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or  substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be  the sale, lease, conveyance, assignment, transfer or other disposition of all or substantially all of the properties  and assets of the Company. Except as set forth below under Section 5.1(b), this Section 5.1 shall not restrict,  and shall not be applicable to, the sale, lease, conveyance, assignment, transfer, or other disposition of all or  substantially all of the properties and assets of one or more Restricted Subsidiaries of the Company to one or  more Restricted Subsidiaries of the Company or any consolidation, merger or amalgamation with, between  or among Restricted Subsidiaries of the Company.  The Successor Company will succeed to, and be substituted for, and may exercise every right and  power of, the Company under this Indenture, and, except in the case of a lease of all or substantially all its  assets, the Company will be released from the obligation to pay the principal of, and interest on, the Notes  and all other obligations under this Indenture.  (b) Except in circumstances under which this Indenture provides for the release of Note  Guarantees as described under Section 10.5, each Subsidiary Guarantor will not, and the Company will not  permit a Subsidiary Guarantor to, consolidate with or merge with or into, or convey or transfer or lease all or  substantially all its assets to, another Person (other than the Company or another Subsidiary Guarantor),  unless at the time and after giving effect thereto:  (1)   (A) the resulting, surviving or transferee Person (the “Successor Subsidiary  Guarantor”) shall be a corporation, limited partnership, trust, limited liability company or  other entity and, other than with respect to a Subsidiary Guarantor that is a Foreign  Subsidiary, organized and existing under the laws of the United States of America, any  State thereof or the District of Columbia and the Successor Subsidiary Guarantor (if not  the Subsidiary Guarantor) shall expressly assume, by supplemental indenture, executed and  delivered to the Trustee, in form reasonably satisfactory to the Trustee, all the obligations  of the Subsidiary Guarantor under this Indenture and its Note Guarantee;  





 






62    (B) immediately after giving effect to such transaction no Default or Event  of Default shall have occurred and be continuing; and   (C) the Subsidiary Guarantor or the Successor Subsidiary Guarantor, as the  case may be, shall have delivered to the Trustee an Officer’s Certificate and an Opinion of  Counsel, stating that such consolidation, merger, conveyance, transfer or lease and such  supplemental indenture, if any, comply with this Indenture; or  (2) such transaction does not violate Section 4.10.  Notwithstanding the foregoing, any Subsidiary Guarantor may merge with or into or transfer all or  part of its properties and assets to a Subsidiary Guarantor or merge with a Restricted Subsidiary of the  Company, so long as the resulting entity remains or becomes a Subsidiary Guarantor.  For purposes of this Section 5.1(b), the sale, lease, conveyance, assignment, transfer, or other  disposition of all or substantially all of the properties and assets of one or more Subsidiaries of a Subsidiary  Guarantor, which properties and assets, if held by such Subsidiary Guarantor instead of such Subsidiaries,  would constitute all or substantially all of the properties and assets of such Subsidiary Guarantor on a  consolidated basis, shall be deemed to be the sale, lease, conveyance, assignment, transfer or other disposition  of all or substantially all of the properties and assets of such Subsidiary Guarantor.  The Successor Subsidiary Guarantor will succeed to, and be substituted for, and may exercise every  right and power of, the Subsidiary Guarantor under this Indenture, and, except in the case of a lease of all or  substantially all its assets, the Subsidiary Guarantor will be released from its obligations under its Note  Guarantee.  ARTICLE VI  DEFAULTS AND REMEDIES  SECTION 6.1. Events of Default.   (a) Each of the following is an “Event of Default”:  (1) failure to pay principal of (or premium, if any, on) any Note when due and payable, at  maturity, upon redemption or otherwise;  (2) failure to pay any interest on any Note when due and payable and such default continues  for 30 days;  (3) default in the payment of principal, premium and interest on Notes required to be purchased  pursuant to an Offer to Purchase as described under Section 4.10 and Section 4.13 when due and payable;  (4) failure to perform or comply with the provisions described under Section 5.1;  (5) failure to perform any other covenant or agreement of the Company under this Indenture  or the Notes and such default continues for 60 days (or 90 days with respect to Section 4.3) after written  notice to the Company by the Trustee or Holders of at least 25% in aggregate principal amount of outstanding  Notes;  (6) default under the terms of any instrument evidencing or securing any Debt of the Company  or any Restricted Subsidiary having an outstanding principal amount of $50.0 million, individually or in the  aggregate, which default (i) results in the acceleration of the payment of such Debt or (ii) constitutes the  failure to pay all or any portion of the principal amount of such Debt when due (after any applicable grace  periods);  





 






63    (7) the rendering of one or more final judgments, orders or decrees (not subject to appeal) of  any court or regulatory or administrative agency against the Company or any Restricted Subsidiary or any  of their respective properties in an amount in excess of $50.0 million, either individually or in the aggregate  (exclusive of any portion of any such payment covered by third-party insurance) which remains undischarged  or unstayed for a period of 60 days after the date on which the right to appeal has expired;  (8)  the Company, any Restricted Subsidiary that is a Significant Subsidiary of the Company  or any group of Restricted Subsidiaries of the Company that, taken together (as of the latest audited  consolidated financial statements for the Company and its Subsidiaries), would constitute a Significant  Subsidiary, pursuant to or within the meaning of any Bankruptcy Law:  (A) commences a voluntary case,  (B) consents to the entry of an order for relief against it in an involuntary case,   (C) consents to the appointment of a custodian of it or for all or substantially all of its  property, or  (D) makes a general assignment for the benefit of its creditors.    (9) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:  (i) is for relief against the Company or any Restricted Subsidiary that is a  Significant Subsidiary of the Company or any group of Restricted Subsidiaries of the  Company that, taken together (as of the latest audited consolidated financial statements for  the Company and its Subsidiaries), would constitute a Significant Subsidiary, in an  involuntary case;  (ii) appoints a custodian of the Company or any Restricted Subsidiary that  is a Significant Subsidiary of the Company or any group of Restricted Subsidiaries of the  Company that, taken together (as of the latest audited consolidated financial statements for  the Company and its Subsidiaries), would constitute a Significant Subsidiary or for all or  substantially all of the property of the Company or any Restricted Subsidiary that is a  Significant Subsidiary of the Company or any group of Restricted Subsidiaries of the  Company that, taken together (as of the latest audited consolidated financial statements for  the Company and its Subsidiaries), would constitute a Significant Subsidiary; or   (iii) orders the liquidation of the Company or any Restricted Subsidiary that  is a Significant Subsidiary of the Company or any group of Restricted Subsidiaries of the  Company that, taken together (as of the latest audited consolidated financial statements for  the Company and its Subsidiaries), would constitute a Significant Subsidiary   and, in each case, the order or decree remains unstayed and in effect for 60 consecutive days; or  (10) the Note Guarantee of any Subsidiary Guarantor that is a Significant Subsidiary or any group  of Subsidiary Guarantors that together would constitute a Significant Subsidiary is held by a final non- appealable order or judgment of a court of competent jurisdiction to be unenforceable or invalid or ceases for  any reason to be in full force and effect (other than in accordance with the terms of this Indenture) or any  Subsidiary Guarantor that is a Significant Subsidiary or any group of Subsidiary Guarantors that together  would constitute a Significant Subsidiary or any Person acting on behalf of any such Subsidiary Guarantor  or such group of Subsidiary Guarantors denies or disaffirms its or their obligations under its or their Note  Guarantee (other than by reason of a release of such Subsidiary Guarantor or such group of Subsidiary  Guarantors from its or their Note Guarantee in accordance with the terms of this Indenture).  





 






64    (b)  In the event of any Event of Default specified in Section 6.1(a)(6), such Event of Default and all  consequences thereof (excluding any resulting payment default, other than as a result of acceleration of the Notes)  shall be annulled, waived and rescinded, automatically and without any action by the Trustee or the Holders, if within  30 days after such Event of Default arose:  (1) either (i) the Debt or guarantee that is the basis for such Event of Default has been  discharged, (ii) the holders thereof have rescinded or waived the acceleration, notice or action (as the case  may be) giving rise to such Event of Default or (iii) the default that is the basis for such Event of Default has  been cured; and  (2) the annulment of the acceleration of the Notes would not conflict with any judgment or  decree of a court of competent jurisdiction.  SECTION 6.2. Acceleration. If an Event of Default (other than an Event of Default specified in  clauses (8) or (9) of Section 6.1(a)) shall have occurred and be continuing under this Indenture, the Trustee, by written  notice to the Company, or the Holders of at least 25.0% in aggregate principal amount of the Notes then outstanding  by written notice to the Company and the Trustee, may declare (an “acceleration declaration”) all amounts owing  under the Notes to be due and payable. Upon such acceleration declaration, the outstanding Notes shall become due  and payable immediately.  At any time after such acceleration pursuant to this Section 6.2, but before a judgment or decree based on  acceleration, the Holders of a majority in aggregate principal amount of the Notes then outstanding may rescind and  annul such acceleration if:  (1) the rescission would not conflict with any judgment or decree;  (2) all existing Events of Default have been cured or waived other than nonpayment of  accelerated principal and interest;  (3) to the extent the payment of such interest is lawful, interest on overdue installments of  interest and overdue principal, which has become due otherwise than by such declaration of acceleration, has  been paid;  (4) the Company has paid the Trustee its reasonable compensation and reimbursed the Trustee  for its reasonable expenses, disbursements and advances; and  (5) in the event of the cure or waiver of an Event of Default specified in clauses (8) or (9) of  Section 6.1(a), the Trustee shall have received an Officer’s Certificate and an Opinion of Counsel that such  Event of Default has been cured or waived.   No such rescission shall affect any subsequent Default or impair any right consequent thereto.  If an Event of Default specified in clauses (8) or (9) of Section 6.1(a) occurs, then all outstanding Notes shall  ipso facto become and be immediately due and payable without any declaration or other action or notice on the part  of the Trustee or any Holder of the Notes to the extent permitted by applicable law.  SECTION 6.3. Other Remedies. If an Event of Default occurs and is continuing, the Trustee may  pursue any available remedy to collect the payment of principal, premium, if any, and interest, if any, on the Notes or  to enforce the performance of any provision of the Notes or this Indenture.  The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any  of them in the proceeding. A delay or omission by the Trustee or any Holder in exercising any right or remedy accruing  upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event  of Default. All remedies are cumulative to the extent permitted by law.  





 






65    SECTION 6.4. Waiver of Past Defaults. Subject to Section 9.2, the Holders of a majority in aggregate  principal amount of the Notes then outstanding by written notice to the Trustee may, on behalf of the Holders of all  of the Notes, waive any existing Default or Event of Default and its consequences under this Indenture except a  continuing Default or Event of Default in the payment of interest or premium on, or the principal of, the Notes (other  than any such payment that has become due because of an acceleration that has been rescinded).  SECTION 6.5. Control by Majority. The Holders of a majority in aggregate principal amount of the  then outstanding Notes may direct the time, method and place of conducting any proceeding for exercising any remedy  available to the Trustee or exercising any trust or power conferred on it. However, (i) the Trustee may require security  or indemnity satisfactory to it be furnished prior to taking such actions, (ii) the Trustee may refuse to follow any  direction that conflicts with law or this Indenture or that the Trustee determines in good faith may be unduly prejudicial  to the rights of Holders not joining in the giving of such direction or that would involve any personal liability for the  Trustee and (iii) the Trustee may take any other action it deems proper that is not inconsistent with any such direction  received from the Holders.  SECTION 6.6. Limitation on Suits. Subject to Section 6.7, no Holder of a Note will have any right to  institute any proceeding with respect to this Indenture, or for the appointment of a receiver or a Trustee, or for any  other remedy hereunder unless (a) such Holder has previously given to the Trustee written notice of a continuing  Event of Default with respect to the Notes, (b) the Holders of at least 25% in aggregate principal amount of the  outstanding Notes have made written request, and such Holder or Holders have offered to the Trustee indemnity  satisfactory to the Trustee to institute such proceeding as Trustee, (c) the Trustee has failed to institute such  proceeding, and (d) the Trustee has not received from the Holders of a majority in aggregate principal amount of the  outstanding Notes a direction inconsistent with such request, within 60 days after such notice, request and offer.   A Holder may not use this Indenture to prejudice the rights of another Holder or to obtain a preference or  priority over another Holder (it being understood that the Trustee does not have an affirmative duty to ascertain  whether or not any such use by a Holder prejudices the rights of any other Holders or obtains priority or preference  over such other Holders).  SECTION 6.7. Rights of Holders of Notes to Receive Payment. Notwithstanding any other provision  of this Indenture, the contractual right of any Holder to receive payment of principal of, premium or interest on, such  Note or to bring suit for the enforcement of any such payment, on or after the due date expressed in the Notes, shall  not be modified or amended in a manner adverse to such Holder without the consent of the Holder.  SECTION 6.8. Collection Suit by Trustee. If an Event of Default specified in clauses (1) or (2) of  Section 6.1(a) occurs and is continuing, the Trustee is authorized to recover judgment in its own name and as Trustee  of an express trust against the Company for the whole amount of principal of, premium, if any, and interest remaining  unpaid on the Notes and interest on overdue principal and, to the extent lawful, such further amount as shall be  sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses,  disbursements and advances of the Trustee, its agents and counsel.  SECTION 6.9. Trustee May File Proofs of Claim. The Trustee is authorized to 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 reasonable compensation, expenses, disbursements and advances of the Trustee, its agents  and counsel) and the Holders allowed in any judicial proceedings relative to the Company (or any other obligor upon  the Notes including the Subsidiary Guarantors), its creditors or its property and shall be entitled and empowered to  collect, receive and distribute any money or other securities or property payable or deliverable upon the conversion or  exchange of the Notes or on any such claims, and any custodian in any such judicial proceeding is hereby authorized  by each Holder 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 Holders, to pay to the Trustee any amount due to it for the reasonable compensation,  expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee  under Section 7.6. To the extent that the payment of any such compensation, expenses, disbursements and advances  to the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.6 out of the estate in any  such proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien on, and shall be paid  out of, any and all distributions, dividends, money, securities and other properties that the Holders may be entitled to  





 






66    receive in such proceeding, whether in liquidation or under any plan of reorganization or arrangement or otherwise.  Nothing in this Section 6.9 shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on  behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the  rights of any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.  SECTION 6.10. Priorities. If the Trustee collects any money or property pursuant to this Article VI, it  shall pay out the money and property in the following order:  First: to the Trustee, its agents and attorneys for amounts due under Section 7.6, including payment  of all reasonable compensation, expenses and liabilities incurred, and all advances made, by it and the costs  and expenses of collection;   Second: to Holders for amounts due and unpaid on the Notes for principal, premium, if any, and  interest ratably, without preference or priority of any kind, according to the amounts due and payable on the  Notes for principal, premium, if any, and interest, respectively;  Third: without duplication, to the Holders for any other obligations owing to the Holders under this  Indenture and the Notes; and  Fourth: to the Company or to such party as a court of competent jurisdiction shall direct.  The Trustee may fix a record date and payment date for any payment to Holders 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 the 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, or a suit  by Holders of more than 10.0% in principal amount of the then outstanding Notes.  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 such  case, subject to any determination in such proceedings, the Company, 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 has been instituted.  SECTION 6.13. Rights and Remedies Cumulative. Except as otherwise provided with respect to the  replacement or payment of mutilated, destroyed, lost or stolen Notes in Section 2.7 hereof, no right or remedy herein  conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy,  and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right  and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment  of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other  appropriate right or remedy.  SECTION 6.14. Delay or Omission Not Waiver. No delay or omission of the Trustee or of any Holder  of any Note 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 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.  





 






67    ARTICLE VII  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 use the same degree of care and skill in its exercise  as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.  (b) Except during the continuance of an Event of Default:  (1) the duties of the Trustee shall be determined solely by the express provisions of  this Indenture and no implied covenants or obligations shall be read into this Indenture against the  Trustee; and  (2) 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 need not confirm or investigate the  accuracy of mathematical calculations or other facts stated therein); however, the Trustee shall  examine the certificates and opinions furnished to it to determine whether or not they conform to  the requirements of this Indenture.  (c) The Trustee may not be relieved from liabilities for its own grossly negligent action, its  own grossly 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) the Trustee shall not be liable for any error of judgment made in good faith by a  Responsible Officer of the Trustee, 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 Section 6.5; and  (4) no provision of this Indenture shall require the Trustee to expend or risk its own  funds or incur any liability.  (d) The Trustee shall not be liable for interest on or the investment of any money received by  it except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not  be segregated from other funds except to the extent required by law.  (e) Whether or not therein expressly so provided, every provision of this Indenture that in any  way relates to the Trustee is subject to this Section 7.1.  SECTION 7.2. Rights of Trustee.  (a) The Trustee may conclusively rely and shall be fully protected in acting or refraining from  acting on any resolution, certificate, statement, instrument, opinion, notice, report, request, direction, consent,  order, bond, debenture or other document (whether in original or facsimile form or PDF transmission)  believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee need not  investigate any fact or matter stated therein.  





 






68    (b) Before the Trustee acts or refrains from acting, it may require an Officer’s Certificate or  an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits to take in good  faith in reliance on such Officer’s Certificate or Opinion of Counsel. Prior to taking, suffering or omitting  any action, the Trustee may consult with counsel of the Trustee’s own choosing, and the Trustee shall be  fully protected from liability in respect of any action taken, suffered or omitted by it hereunder in good faith  and in reliance on the advice or opinion of such counsel.  (c) The Trustee may act through its attorneys and agents and shall not be responsible for the  misconduct or negligence of any attorney or agent appointed with due care.  (d) The Trustee shall not be liable for any action it takes or omits to take in good faith that it  believes to be authorized or within the discretion or rights or powers conferred upon it by this Indenture.  (e) Unless otherwise specifically provided in this Indenture, any demand, request, direction or  notice from the Company or a Subsidiary Guarantor shall be sufficient if signed by an Officer of the Company  or such Subsidiary Guarantor.  (f) 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 unless such Holders shall have offered to  the Trustee security or indemnity satisfactory to the Trustee against the costs, expenses and liabilities that  might be incurred by it in compliance with such request or direction.  (g) The Trustee shall not be bound to make any investigation into the facts or matters stated in  any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order,  bond, debenture, note, other evidence of indebtedness or other paper or documents, but the Trustee, in its  discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if  the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine during  normal business hours the books, records and premises of the Company, personally or by agent or attorney  at the sole cost of the Company, and shall incur no liability or additional liability of any kind by reason of  such inquiry or investigation.  (h) The rights, privileges, protections, immunities and benefits given to the Trustee, including,  without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in  each of its capacities hereunder, to the Agents and to each other agent, custodian and Person employed to act  hereunder.   (i) The Trustee may request that the Company and each of the Subsidiary Guarantors shall  deliver to the Trustee an Officer’s Certificate setting forth the names of individuals and/or titles of Officers  of the Company and each Subsidiary Guarantor, as applicable, authorized at such time to take specified  actions pursuant to this Indenture, the Notes and the Note Guarantees, which Officer’s Certificate may be  signed by any Person authorized to sign an Officer’s Certificate, including any Person specified as so  authorized in any such certificate previously delivered and not superseded.  (j) The Trustee shall not be deemed to have notice or be charged with knowledge of any  Default or Event of Default unless a Responsible Officer of the Trustee has (i) actual knowledge of a payment  Default under Sections 6.1(a)(1), 6.1(a)(2) and 6.1(a)(3) or (ii)  received from the Company or Subsidiary  Guarantor or from any Holder written notice thereof at its address set forth in Section 11.1 and such notice  references the Notes and this Indenture. In the absence of such notice, the Trustee may conclusively assume  that no such Default or Event of Default exists.  (k) In no event shall the Trustee be responsible or liable for special, indirect, punitive, 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.  





 






69    (l) The Trustee shall not be required to give any bond or surety in respect of the performance  of its powers and duties hereunder.  (m) 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 duties thereunder, or in the exercise of  any of its rights or powers.  (n) In the case of any conflict between the Notes and this Indenture, the provisions of this  Indenture shall control and govern.  (o) The Trustee shall have the right to accept and act upon instructions, including funds transfer  instructions (“Instructions”) given pursuant to this Indenture and delivered using Electronic Means; provided,  however, that the Company shall provide to the Trustee an incumbency certificate listing officers with the  authority to provide such Instructions (“Authorized Officers”) and containing specimen signatures of such  Authorized Officers, which incumbency certificate shall be amended by the Company whenever a person is  to be added or deleted from the listing.  If the Company elects to give the Trustee Instructions using Electronic  Means and the Trustee in its discretion elects to act upon such Instructions, the Trustee’s understanding of  such Instructions shall be deemed controlling.  The Company understands and agrees that the Trustee cannot  determine the identity of the actual sender of such Instructions and that the Trustee shall conclusively  presume that directions that purport to have been sent by an Authorized Officer listed on the incumbency  certificate provided to the Trustee have been sent by such Authorized Officer.  The Company shall be  responsible for ensuring that only Authorized Officers transmit such Instructions to the Trustee and that the  Company and all Authorized Officers are solely responsible to safeguard the use and confidentiality of  applicable user and authorization codes, passwords and/or authentication keys upon receipt by the Company.   The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the  Trustee’s reliance upon and compliance with such Instructions notwithstanding such directions conflict or  are inconsistent with a subsequent written instruction.  The Company agrees: (i) to assume all risks arising  out of the use of Electronic Means to submit Instructions to the Trustee, including without limitation the risk  of the Trustee acting on unauthorized Instructions, and the risk of interception and misuse by third parties;  (ii) that it is fully informed of the protections and risks associated with the various methods of transmitting  Instructions to the Trustee and that there may be more secure methods of transmitting Instructions than the  method(s) selected by the Company; (iii) that the security procedures (if any) to be followed in connection  with its transmission of Instructions provide to it a commercially reasonable degree of protection in light of  its particular needs and circumstances; and (iv) to notify the Trustee immediately upon learning of any  compromise or unauthorized use of the security procedures.  SECTION 7.3. Individual Rights of the Trustee. The Trustee in its individual or any other capacity  may become the owner or pledgee of Notes and may otherwise deal with the Company or any Affiliate of the Company  with the same rights it would have if it were not Trustee. Any Agent may do the same with like rights and duties. The  Trustee is also subject to Section 7.9.  SECTION 7.4. Trustee’s Disclaimer. The Trustee shall not be responsible for and makes no  representation as to the validity or adequacy of this Indenture, the Notes or any Note Guarantee; it shall not be  accountable for the use of the proceeds from the Notes or any money paid to the Company or upon the Company’s  direction under any provision of this Indenture; it shall not be responsible for the use or application of any money  received by any Paying Agent other than the Trustee; and it shall not be responsible for any statement or recital herein  or any statement in the Notes, any Officer’s Certificate delivered to the Trustee hereunder, or any other document in  connection with the sale of the Notes or pursuant to this Indenture other than the Trustee’s certificate of authentication  hereunder.  SECTION 7.5. Notice of Defaults. If a Default or Event of Default occurs and is continuing and the  Trustee has notice or knowledge thereof as provided in Section 7.2(j), the Trustee shall deliver to Holders a 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 of, premium, if any, or interest on any Note, the Trustee may withhold the notice if and so long  





 






70    as the board of directors, the executive committee or a trust committee of directors or Responsible Officers of the  Trustee in good faith determines that the withholding of such notice is in the interest of the Holders.  SECTION 7.6. Compensation and Indemnity. The Company shall pay to the Trustee from time to time  compensation for its acceptance of this Indenture and for all services rendered by it hereunder as agreed upon in  writing. The Trustee’s compensation shall not be limited by any law on compensation of a Trustee of an express trust.  The Company shall reimburse the Trustee, as applicable, promptly upon request for all reasonable disbursements,  advances and expenses incurred or made by it in addition to the compensation for its services. Such expenses shall  include the reasonable compensation, disbursements and expenses of the Trustee’s agents and counsel.  Each of the Company and the Subsidiary Guarantors, jointly and severally, shall indemnify, defend, protect  and hold the Trustee (which for purposes of this Section 7.6 shall include its officers, directors, employees and agents)  harmless against any and all claims, damages, losses, liabilities, costs or expenses suffered or incurred by it (including,  without limitation, the fees and expenses of its agents and counsel) arising out of or in connection with the acceptance  or administration of its duties under this Indenture, the performance of its obligations and/or exercise of its rights  hereunder, including the costs and expenses of enforcing this Indenture against the Company or any Subsidiary  Guarantor (including this Section 7.6) and defending itself against any claim (whether asserted by the Company or  any Holder or any other Person) or liability in connection with the exercise or performance of any of its powers or  duties hereunder, except to the extent any such loss, claim, damage, liability or expense shall have been found by a  court of competent jurisdiction in a non-appealable final decision to have been caused by its own gross negligence or  willful misconduct. The Trustee shall notify the Company promptly of any claim for which it may seek indemnity.  Failure by the Trustee to so notify the Company shall not relieve the Company of its obligations hereunder. The  Trustee may have one separate counsel, and the Company shall pay the reasonable fees and expenses of such counsel  for the Trustee. The Company and the Subsidiary Guarantors need not pay for any settlement made without the consent  of the Company, which consent shall not be unreasonably withheld.  The obligations of the Company and the Subsidiary Guarantors under this Section 7.6 shall survive the  satisfaction and discharge of this Indenture, the payment of the Notes or the resignation or removal of the Trustee.  To secure the Company’s payment obligations in this Section 7.6, the Trustee shall have a Lien prior to the  Notes on all money or property held or collected by the Trustee, except that held in trust to pay principal or interest,  if any, on particular Notes. Such Lien shall survive the satisfaction and discharge of this Indenture, the payment of the  Notes and the resignation or removal of the Trustee.   When the Trustee incurs expenses or renders services after an Event of Default specified in clauses (8) or (9)  of Section 6.1(a) occurs, the expenses and the compensation for the services (including the fees and expenses of its  agents and counsel) are intended to constitute expenses of administration under any Bankruptcy Law.  SECTION 7.7. Replacement of Trustee. A resignation or removal of the Trustee and appointment of  a successor Trustee shall become effective only upon the successor Trustee’s acceptance of appointment as provided  in this Section 7.7.   The Trustee may resign in writing at any time and be discharged from the trust hereby created by so notifying  the Company. The Holders of a majority in principal amount of the then outstanding Notes may remove the Trustee  upon thirty days’ written notice to the Trustee and the Company. The Company may remove the Trustee if no Event  of Default exists and:  (a) the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with  respect to the Trustee under any Bankruptcy Law;  (b) a custodian or public officer takes charge of the Trustee or its property; or   (c) the Trustee becomes incapable of acting.  If the Trustee acquires any conflicting interest, it must eliminate such conflict within 90 days or resign.   





 






71    If the Trustee resigns or is removed or if a vacancy exists in the office of the Trustee for any reason, the  Company shall promptly appoint a successor Trustee. Within one year after the successor Trustee takes office, the  Holders of a majority in principal amount of the then outstanding Notes may appoint a successor Trustee to replace  the successor Trustee appointed by the Company.  If a successor Trustee does not take office within 30 days after the retiring Trustee resigns or is removed,  such retiring Trustee (at the expense of the Company), the Company or the Holders of at least 10.0% in principal  amount of the then outstanding Notes may petition any court of competent jurisdiction for the appointment of a  successor Trustee.  If the Trustee, after written request by any Holder who has been a Holder for at least six months, fails to  comply with Section 7.9, such Holder 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  Company. Thereupon, the resignation or removal of the retiring Trustee shall become effective, and the successor  Trustee shall have all the rights, powers and the duties of the Trustee under this Indenture. The successor Trustee shall  mail a notice of its succession to the Holders. The retiring Trustee shall promptly transfer all property held by it as  Trustee to the successor Trustee; provided that all sums owing to such Trustee hereunder have been paid and subject  to the Lien provided for in Section 7.6. Notwithstanding replacement of the Trustee pursuant to this Section 7.7, the  Company’s and the Subsidiary Guarantors’ obligations under Section 7.6 shall continue for the benefit of the retiring  Trustee.  SECTION 7.8. Successor Trustee by Merger, Etc. If the Trustee or any Agent consolidates, merges or  converts into, or transfers all or substantially all of its corporate trust business (including the trust hereby created) to,  another corporation, the successor corporation without any further act shall be the successor Trustee or Agent, as  applicable.  SECTION 7.9. Eligibility; Disqualification. There shall at all times be a Trustee hereunder that is a  corporation organized and doing business under the laws of the United States or of any state thereof that is authorized  under such laws to exercise corporate Trustee power and that is subject to supervision or examination by federal or  state authorities. Such Trustee together with its affiliates shall at all times have a combined capital surplus of at least  $50.0 million as set forth in its most recent annual report of condition.  ARTICLE VIII  DEFEASANCE; DISCHARGE OF THIS INDENTURE  SECTION 8.1. Option to Effect Legal Defeasance or Covenant Defeasance. The Company may, by  delivery of an Officer’s Certificate, at any time, elect to have either Section 8.2 or Section 8.3 applied to all outstanding  Notes upon compliance with the conditions set forth below in this Article VIII.  SECTION 8.2. Legal Defeasance. Upon the Company’s exercise under Section 8.1 of the option  applicable to this Section 8.2, the Company and the Subsidiary Guarantors shall, subject to the satisfaction of the  conditions set forth in Section 8.4, be deemed to have been discharged from their obligations with respect to all  outstanding Notes and Note Guarantees and this Indenture on the date the conditions set forth below are satisfied  (hereinafter, “Legal Defeasance”). For this purpose, Legal Defeasance means that the Company and the Subsidiary  Guarantors shall be deemed to have paid and discharged all of the obligations with respect to this Indenture, the Notes  and the Note Guarantees, which shall thereafter be deemed to be outstanding only for the purposes of Section 8.5 and  the other Sections of this Indenture referred to in (a) and (b) below, and to have satisfied all of their other obligations  under such Notes, Note Guarantees and this Indenture (and the Trustee, on written demand of and at the expense of  the Company, shall execute instruments acknowledging the same), and this Indenture shall cease to be of further effect  as to all such Notes and Note Guarantees, except for the following provisions which shall survive until otherwise  terminated or discharged hereunder: (a) the rights of Holders of outstanding Notes to receive payments in respect of  the principal of, and interest and premium on, such Notes when such payments are due from the trust funds referred  to in Section 8.4(1); (b) the Company’s obligations with respect to such Notes under Section 2.2, Section 2.3, Section  





 






72    2.4, Section 2.6, Section 2.7, Section 2.10, and Section 4.2; (c) the rights, powers, trusts, duties and immunities of the  Trustee, including without limitation thereunder, under Section 7.6, Section 8.5 and Section 8.7 and the obligations of  the Company and the Subsidiary Guarantors in connection therewith; and (d) the provisions of this Article VIII.  Subject to compliance with this Article VIII, the Company may exercise its option under this Section 8.2  notwithstanding the prior exercise of its option under Section 8.3.  SECTION 8.3. Covenant Defeasance. Upon the Company’s exercise under Section 8.1 of the option  applicable to this Section 8.3, the Company shall, subject to the satisfaction of the conditions set forth in Section 8.4  below, be released from its obligations under Sections 4.3, 4.7 through Section 4.16 and Section 5.1(a)(3) on and after  the date the conditions set forth below are satisfied (hereinafter, “Covenant Defeasance”), and the Notes shall  thereafter be deemed not outstanding for the purposes of any direction, waiver, consent or declaration or act of Holders  (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed outstanding  for all other purposes hereunder (it being understood that such Notes and the Note Guarantees shall not be deemed  outstanding for accounting purposes). For this purpose, Covenant Defeasance means that, with respect to the  outstanding Notes, the Company or any of its Subsidiaries may omit to comply with and shall have no liability in  respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of  any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other  provision herein or in any other document and such omission to comply shall not constitute a Default or an Event of  Default under Section 6.1, and the Events of Default in clauses (3) through (7) or (8) of Section 6.1(a) (with respect  to any Subsidiary) and Section 6.1(a)(9) (with respect to any Subsidiary) shall no longer apply but, except as specified  above, the remainder of this Indenture and such Notes and any Note Guarantees shall be unaffected thereby.   SECTION 8.4. Conditions to Legal or Covenant Defeasance. The following shall be the conditions to  the application of either Section 8.2 or Section 8.3 to the outstanding Notes:  (1) the Company must irrevocably deposit with the Trustee, as trust funds, in trust solely for  the benefit of the Holders, U.S. dollars, non-callable U.S. Government Obligations or a combination thereof,  in such amounts as will be sufficient without consideration of any reinvestment of interest (if U.S.  Government Obligations are deposited, in the opinion of a nationally recognized investment bank, appraisal  firm or firm of independent public accountants selected by the Company and delivered to the Trustee), to  pay the principal of, premium, if any, and interest, if any, on the outstanding Notes on the stated date for  payment thereof or on the applicable redemption date, as the case may be, and any other amounts owing  under this Indenture (in the case of an optional redemption date prior to electing to exercise either Legal  Defeasance or Covenant Defeasance, the Company has delivered to the Trustee an irrevocable notice to  redeem all of the outstanding Notes on such redemption date);  (2) in the case of Legal Defeasance, the Company shall have delivered to the Trustee an  Opinion of Counsel from counsel in the United States confirming that, subject to customary assumptions and  exclusions:  (A) the Company has received from, or there has been published by, the United States  Internal Revenue Service a ruling; or  (B) since the Issue Date, there has been a change in the applicable U.S. federal income  tax law;  in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, subject to  customary assumptions and exclusions, the beneficial owners of the outstanding Notes will not recognize  income, gain or loss for U.S. federal income tax purposes as a result of the Legal Defeasance and will be  subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would  have been the case if such Legal Defeasance had not occurred;  (3) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an  Opinion of Counsel from counsel in the United States confirming that, subject to customary assumptions and  exclusions, the beneficial owners of the outstanding Notes will not recognize income, gain or loss for U.S.  





 






73    federal income tax purposes as a result of the Covenant Defeasance and will be subject to U.S. 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;  (4) no Default or Event of Default shall have occurred and be continuing on the date of such  deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such  deposit (and any similar concurrent deposit relating to other Debt) (and the Incurrence of Liens associated  with any such borrowings));  (5) the Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of,  or constitute a default under any material agreement or instrument (other than this Indenture and the  agreements governing any other Debt being defeased, discharged or replaced) to which the Company or any  of its Restricted Subsidiaries is a party or by which the Company or any of its Restricted Subsidiaries is  bound;  (6) the Company shall have delivered to the Trustee an Officer’s Certificate stating that the  deposit was not made by the Company with the intent of preferring the Holders over any other creditors of  the Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the  Company or others; and  (7) the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of  Counsel (which Opinion of Counsel may be subject to customary assumptions and exclusions) each stating  that the applicable conditions precedent provided for in clauses (1) through (6) of this Section 8.4 have been  complied with.   SECTION 8.5. Deposited Money and U.S. Government Obligations to Be Held in Trust; Other  Miscellaneous Provisions. Subject to Section 8.6, all U.S. dollar and U.S. Government Obligations (including the  proceeds thereof) deposited with the Trustee (or other qualifying Trustee, collectively for purposes of this Section 8.5,  the “Deposit Trustee”) pursuant to Section 8.4 or Section 8.8 in respect of the outstanding Notes shall be held in trust,  shall not be invested, and shall be applied by the Deposit Trustee in accordance with the provisions of such Notes and  this Indenture to the payment, either directly or through any Paying Agent (including the Company or any Subsidiary  acting as Paying Agent) as the Deposit Trustee may determine, to the Holders of such Notes of all sums due and to  become due thereon in respect of principal, premium, if any, and interest, if any, but such money need not be  segregated from other funds except to the extent required by law.  The Company shall pay and indemnify the Deposit Trustee against any tax, fee or other charge imposed on  or assessed against the cash or non-callable U.S. Government Obligations deposited pursuant to Section 8.4 or Section  8.8 or the principal 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 Notes.  Anything in this Article VIII to the contrary notwithstanding, the Deposit Trustee shall deliver or pay to the  Company from time to time upon the written request of the Company and be relieved of all liability with respect to  any U.S. dollars or non-callable U.S. Government Obligations held by it as provided in Section 8.4 or Section 8.8  which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written  certification thereof delivered to the Deposit Trustee (which may be the opinion delivered under Section 8.4(1)), are  in excess of the amount thereof that would then be required to be deposited to effect an equivalent Legal Defeasance  or Covenant Defeasance or satisfaction and discharge, as the case may be.  SECTION 8.6. Repayment to Company. Subject to applicable escheat laws, any money deposited  with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of,  premium, if any, or interest on any Note and remaining unclaimed for two years after such principal and premium, if  any, or interest has become due and payable shall be paid to the Company on its written request or (if then held by the  Company) shall be discharged from such trust; and the Holder of such Note shall thereafter, as an unsecured general  creditor, look only to the Company for payment thereof; and all liability of the Trustee or such Paying Agent with  respect to such trust money, and all liability of the Company as Trustee thereof, shall thereupon cease; provided,  





 






74    however, that the Trustee or such Paying Agent, before being required to make any such repayment, shall at the  expense and written request of the Company cause to be published once, in the New York Times and The Wall Street  Journal (national edition), 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 notification or publication, any unclaimed balance of such money  then remaining shall be repaid to the Company.   SECTION 8.7. Reinstatement. If the Trustee or Paying Agent is unable to apply any U.S. dollars or  U.S. Government Obligations in accordance with Section 8.2, Section 8.3 or Section 8.8, as the case may be, by reason  of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such  application, then the obligations of the Company and the Subsidiary Guarantors under this Indenture and the Notes  shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.2, Section 8.3 or Section 8.8  until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 8.2,  Section 8.3 or Section 8.8, as the case may be; provided, however, that, if the Company makes any payment of principal  of, premium, if any, or interest on any Note following the reinstatement of its obligations, the Company shall be  subrogated to the rights of the Holders of such Notes to receive such payment from the money held by the Trustee or  Paying Agent.  SECTION 8.8. Discharge. This Indenture will be discharged and will cease to be of further effect  (except as to rights of registration of transfer or exchange of Notes which shall survive until all Notes have been  canceled and the rights, protections and immunities of the Trustee) as to all outstanding Notes and Note Guarantees  when either:  (1) all the Notes that have been authenticated and delivered (except lost, stolen or  destroyed Notes which have been replaced or paid and Notes for whose payment money has been deposited  in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged  from this trust), have been delivered to the Trustee for cancellation; or  (2) (a) all Notes not delivered to the Trustee for cancellation otherwise (i) have  become due and payable, (ii) will become due and payable, or may be called for redemption, within one year  or (iii) have been called for redemption pursuant to Article III and, in any case, the Company or any  Subsidiary Guarantor has irrevocably deposited or caused to be deposited with the Trustee as trust funds in  trust solely for the benefit of the Holders, cash in U.S. dollars in such amounts as will be sufficient without  consideration of any reinvestment of interest (if U.S. Government Obligations are deposited, in the opinion  of a nationally recognized investment bank, appraisal firm or firm of independent public accountants selected  by the Company and delivered to the Trustee) to pay and discharge the entire Debt (including all principal  and accrued interest, if any) on the Notes not theretofore delivered to the Trustee for cancellation;  (b) the Company or any Subsidiary Guarantor has paid or caused to be paid all other  sums payable by the Company under this Indenture; and   (c) the Company has delivered irrevocable instructions to the Trustee under this  Indenture to apply the deposited money toward the payment of the Notes at maturity or on the date  of redemption, as the case may be.  In addition, the Company must deliver an Officer’s Certificate and an Opinion of Counsel to the Trustee  stating that all conditions precedent to satisfaction and discharge have been complied with.  After the Notes are no longer outstanding, the Company’s and the Subsidiary Guarantors’ obligations in  Section 7.6, Section 8.5 and Section 8.7 shall survive any discharge pursuant to this Section 8.8.  After such delivery or irrevocable deposit and receipt of the Officer’s Certificate and Opinion of Counsel,  the Trustee, upon written request, shall acknowledge in writing the discharge of the Company’s obligations under the  Notes and this Indenture except for those surviving obligations specified above.  





 






75    ARTICLE IX  AMENDMENT, SUPPLEMENT AND WAIVER  SECTION 9.1. Without Consent of Holders of the Notes. Notwithstanding Section 9.2, without the  consent of any Holders, the Company, the Subsidiary Guarantors and the Trustee, at any time and from time to time,  may amend or supplement this Indenture, the Note Guarantees or the Notes issued hereunder for any of the following  purposes:  (1) to evidence the succession of another Person to the Company or a Subsidiary Guarantor  under this Indenture, Notes or the applicable Note Guarantee, and the assumption by any such successor of  the covenants of the Company or such Subsidiary Guarantor under this Indenture, Notes and in such Note  Guarantee in accordance with Section 5.1;  (2) to add to the covenants of the Company or any Subsidiary Guarantor for the benefit of the  Holders of the Notes or to surrender any right or power conferred upon the Company or any Subsidiary  Guarantor, as applicable, in this Indenture, in the Notes or in any Note Guarantee;  (3) to cure any ambiguity, or to correct or supplement any provision in this Indenture or in any  supplemental indenture, the Notes or any Note Guarantee which may be defective or inconsistent with any  other provision in this Indenture, the Notes or any Note Guarantee;  (4) to make any change that would provide any additional rights or benefits to the Holders of  the Notes;  (5) to make any other provisions with respect to matters or questions arising under this  Indenture, the Notes or any Note Guarantee; provided that, in each case, such provisions shall not adversely  affect the rights of the Holders of the Notes in any material respect;  (6) to comply with the requirements of the SEC in order to effect or maintain the qualification  of this Indenture under the Trust Indenture Act of 1939 (15 U.S. Code §§ 77aaa-77bbbb), as amended, if  applicable;   (7) to add a Subsidiary Guarantor under this Indenture or otherwise provide a Note Guarantee  of the Notes;  (8) to evidence and provide the acceptance of the appointment of a successor Trustee under  this Indenture;  (9) to mortgage, pledge, hypothecate or grant a security interest in favor of the Trustee for the  benefit of the Holders of the Notes as security for the payment and performance of the Company’s and any  Subsidiary Guarantor’s obligations under this Indenture, in any property, or assets;  (10) to provide for the issuance of Additional Notes under this Indenture in accordance with the  terms and subject to the limitations set forth in this Indenture;  (11) to comply with the rules of any applicable Depositary; or  (12) to conform the text of this Indenture, the Notes or the Note Guarantees to any provision of  the “Description of notes” section of the Offering Memorandum, as certified in an Officer’s Certificate  delivered to the Trustee.  After an amendment under this Indenture becomes effective, the Company shall deliver to Holders of the  Notes a notice briefly describing such amendment. However, the failure to give such notice to all Holders, or any  defect therein, will not impair or affect the validity of the amendment.  





 






76    SECTION 9.2. With Consent of Holders of Notes. With the consent of the Holders of not less than a  majority in aggregate principal amount of the Notes then outstanding (including, without limitation, consents obtained  in connection with a purchase of, or tender offer or exchange offer for, the Notes), the Company, the Subsidiary  Guarantors and the Trustee may amend or supplement this Indenture, the Notes or any Note Guarantees or waive any  existing Default or Event of Default or compliance with any provision of this Indenture, the Notes or the Note  Guarantees; provided, however, that no such amendment, supplement or waiver shall, without the consent of the  Holder of each outstanding Note affected thereby (including, without limitation, consents obtained in connection with  a purchase of, or tender offer or exchange offer for, the Notes):  (1) change the Stated Maturity of the principal of, or any installment of interest on, any Note;  (2) reduce the principal amount of (or the premium), or rate of interest on, any Note;   (3) change the place or currency of payment of principal of (or premium), or interest on, any  Note;  (4) impair the right to institute suit for the enforcement of any payment of principal of (or  premium), or interest on, any Note, or waive any payment in respect thereof except a default in payment  arising solely from an acceleration of the Notes that has been rescinded;  (5) modify any provisions of this Indenture relating to the modification and amendment of this  Indenture or the waiver of past defaults or covenants which require each Holder’s consent;  (6) amend any provisions relating to the redemption of the Notes (other than notice  provisions), it being understood that, for the avoidance of doubt, the provisions described under Section 4.10  and Section 4.13 shall not be covered by this clause;  (7) modify the Note Guarantees in any manner adverse to the Holders, except in accordance  with this Indenture; or  (8) modify any of the provisions of this Indenture or the related definitions affecting the  ranking of the Notes.  It shall not be necessary for the consent of the Holders under this Section 9.2 to approve the particular form  of any proposed amendment or waiver, but it shall be sufficient if such consent approves the substance thereof.  SECTION 9.3. Revocation and Effect of Consents. Until an amendment, supplement or waiver  becomes effective, a consent to it by a Holder of a Note is a continuing consent by the Holder and every subsequent  Holder of that Note or portion of the Note that evidences the same debt as the consenting Holder’s Note, even if  notation of the consent is not made on the Note. However, any such Holder or subsequent Holder may revoke the  consent as to its Note if the Trustee receives written notice of revocation before the date the waiver, supplement or  amendment becomes effective. When an amendment, supplement or waiver becomes effective in accordance with its  terms, it thereafter binds every Holder.  The Company may, but shall not be obligated to, fix a record date for determining which Holders consent to  such amendment, supplement or waiver.   SECTION 9.4. Notation on or Exchange of Notes. The Trustee may place an appropriate notation  about an amendment, supplement or waiver on any Note thereafter authenticated. The Company in exchange for all  Notes may issue and the Trustee shall authenticate new Notes that reflect the amendment, supplement or waiver.  Failure to make the appropriate notation or issue a new Note shall not affect the validity and effect of such  amendment, supplement or waiver.  





 






77    SECTION 9.5. Trustee to Sign Amendments, Etc. The Trustee shall sign any amended or  supplemental indenture authorized pursuant to this Article IX if the amendment or supplement does not adversely  affect the rights, duties, liabilities or immunities of the Trustee. In signing or refusing to sign any amendment or  supplemental indenture, the Trustee shall be provided with and (subject to Section 7.1) shall be fully protected in  relying upon an Officer’s Certificate and an Opinion of Counsel stating that the execution of such amendment or  supplemental indenture is authorized or permitted by this Indenture and that all conditions precedent thereto have been  met or waived.   ARTICLE X  NOTE GUARANTEES  SECTION 10.1. Note Guarantees.  (a) Each Subsidiary Guarantor hereby jointly and severally, fully and unconditionally  guarantees the Notes and obligations of the Company hereunder and thereunder, and guarantees to each  Holder of a Note authenticated and delivered by the Trustee and to the Trustee, that: (i) the principal of and  premium, if any, and interest on the Notes shall be paid in full when due, whether at Stated Maturity, by  acceleration, call for redemption or otherwise, together with interest on the overdue principal, if any, and  interest on any overdue interest, to the extent lawful, and all other obligations of the Company to the Holders  or the Trustee under this Indenture or the Notes shall be paid in full or performed, all in accordance with the  terms hereof and thereof; and (ii) in case of any extension of time of payment or renewal of any Notes or of  any such other obligations, the same shall be paid in full when due or performed in accordance with the terms  of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise. Each of the Note  Guarantees shall be a guarantee of payment and not of collection.   (b) Each Subsidiary Guarantor hereby agrees that its obligations hereunder shall be  unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the  absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions  hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any  other circumstance which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary  Guarantor.  (c) Each Subsidiary Guarantor hereby waives the benefits of diligence, presentment, demand  for payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right  to require a proceeding first against the Company or any other Person, protest, notice and all demands  whatsoever and covenants that the Note Guarantee of such Subsidiary Guarantor shall not be discharged as  to any Note or this Indenture except by complete performance of the obligations contained in such Note and  this Indenture and such Note Guarantee. Each of the Subsidiary Guarantors hereby agrees that, in the event  of a Default in payment of principal or premium, if any, or interest on any Note, whether at its Stated Maturity,  by acceleration, call for redemption, purchase or otherwise, legal proceedings may be instituted by the  Trustee on behalf of, or by, the Holder of such Note, subject to the terms and conditions set forth in this  Indenture, directly against each of the Subsidiary Guarantors to enforce each such Subsidiary Guarantor’s  Note Guarantee without first proceeding against the Company or any other Subsidiary Guarantor. Each  Subsidiary Guarantor agrees that if, after the occurrence and during the continuance of an Event of Default,  the Trustee or any of the Holders are prevented by applicable law from exercising their respective rights to  accelerate the maturity of the Notes, to collect interest on the Notes, or to enforce or exercise any other right  or remedy with respect to the Notes, such Subsidiary Guarantor shall pay to the Trustee for the account of  the Holders, upon demand therefor, the amount that would otherwise have been due and payable had such  rights and remedies been permitted to be exercised by the Trustee or any of the Holders and any other amounts  due and owing to the Trustee under this Indenture.  (d) If any Holder or the Trustee is required by any court or otherwise to return to the Company  or any Subsidiary Guarantor, or any custodian, Trustee, liquidator or other similar official acting in relation  to the Company or any Subsidiary Guarantor, any amount paid by any of them to the Trustee or such Holder,  the Note Guarantee of each of the Subsidiary Guarantors, to the extent theretofore discharged, shall be  





 






78    reinstated in full force and effect. This paragraph (d) shall remain effective notwithstanding any contrary  action which may be taken by the Trustee or any Holder in reliance upon such amount required to be returned.  This paragraph (d) shall survive the termination of this Indenture.  (e) Each Subsidiary Guarantor further agrees that, as between each Subsidiary Guarantor, on  the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations  guaranteed hereby may be accelerated as provided in Article VI for the purposes of the Note Guarantee of  such Subsidiary Guarantor, notwithstanding any stay, injunction or other prohibition preventing such  acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any acceleration of such  obligations as provided in Article VI, such obligations (whether or not due and payable) shall forthwith  become due and payable by each Subsidiary Guarantor for the purpose of the Note Guarantee of such  Subsidiary Guarantor.  (f) Each Subsidiary Guarantor that makes a payment for distribution under its Note Guarantee  is entitled upon payment in full of all guaranteed obligations under this Indenture to seek contribution from  each other Subsidiary Guarantor in a pro rata amount of such payment based on the respective net assets of  all the Subsidiary Guarantors at the time of such payment in accordance with GAAP.  SECTION 10.2. Execution and Delivery of Guarantee. To evidence its Note Guarantee set forth in  Section 10.1, each Subsidiary Guarantor agrees that this Indenture or a supplemental indenture in substantially the  form attached hereto as Exhibit B shall be executed on behalf of such Subsidiary Guarantor by an Officer of such  Subsidiary Guarantor (or, if an officer is not available, by a board member or director or other duly authorized  signatory) on behalf of such Subsidiary Guarantor. Each Subsidiary Guarantor hereby agrees that its Note Guarantee  set forth in Section 10.1 hereof shall remain in full force and effect notwithstanding the absence of the endorsement  of any notation of such Note Guarantee on the Notes. In case the Officer, board member or director of such Subsidiary  Guarantor whose signature is on this Indenture or supplemental indenture, as applicable, no longer holds office at the  time the Trustee authenticates any Note, the Note Guarantee shall be valid nevertheless.  The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall constitute due  delivery of the Note Guarantee set forth in this Indenture on behalf of the Subsidiary Guarantors.  SECTION 10.3. Severability. In case any provision of any Note Guarantee 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 10.4. Limitation of Subsidiary Guarantors’ Liability. Each Subsidiary Guarantor and by its  acceptance hereof each Holder confirms that it is the intention of all such parties that the Note Guarantee of such  Subsidiary Guarantor not constitute a fraudulent transfer or conveyance for purposes of the Bankruptcy Law, the  Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law or the  provisions of its local law relating to fraudulent transfer or conveyance. To effectuate the foregoing intention, the  Trustee, the Holders and Subsidiary Guarantors hereby irrevocably agree that the obligations of such Subsidiary  Guarantor under its Note Guarantee shall be limited to the maximum amount that will not, after giving effect to all  other contingent and fixed liabilities of such Subsidiary Guarantor (including, without limitation, any guarantees under  the Senior Secured Credit Facilities) and after giving effect to any collections from, rights to receive contribution from  or payments made by or on behalf of any other Subsidiary Guarantor in respect of the obligations of such other  Subsidiary Guarantor under its Note Guarantee, result in the obligations of such Subsidiary Guarantor under its Note  Guarantee constituting a fraudulent conveyance, fraudulent preference or fraudulent transfer or otherwise reviewable  under applicable law.  SECTION 10.5. Releases. A Note Guarantee of a Subsidiary Guarantor shall be automatically and  unconditionally released and discharged upon:  (a) any sale, transfer or other disposition of all or substantially all of the assets of such  Subsidiary Guarantor (including by way of merger or consolidation) to a Person that is not (either before or  





 






79    after giving effect to such transaction) the Company or a Restricted Subsidiary of the Company, if the sale  or other disposition does not violate Section 4.10 of this Indenture;  (b) any sale, transfer or other disposition of Capital Stock of such Subsidiary Guarantor  (including by way of merger or consolidation) to a Person that is not (either before or after giving effect to  such transaction) the Company or a Restricted Subsidiary of the Company, if after such sale, transfer or  disposition, the Subsidiary Guarantor would cease to be a Restricted Subsidiary and the sale or other  disposition does not violate Section 4.10 of this Indenture;  (c) the exercise by the Company of its Legal Defeasance option or its Covenant Defeasance  option or the satisfaction and discharge of this Indenture, in each case as provided under Article VIII;  (d) the proper designation of such Subsidiary Guarantor by the Company as an Unrestricted  Subsidiary in accordance with the terms of this Indenture;   (e) the Subsidiary Guarantor ceasing to Guarantee any Debt or be a borrower under each of  the Senior Secured Credit Facilities and no Event of Default has occurred and is continuing, except a release  or discharge by or as a result of payment under such Note Guarantee; or  (f) a Suspension Date; provided that the Note Guarantees shall be reinstated upon a  Reinstatement Date.  Upon delivery to the Trustee of an Officer’s Certificate and an Opinion of Counsel to the effect that all  conditions precedent to the release of a Subsidiary Guarantor’s Note Guarantee set forth in this Indenture have been  satisfied, the Trustee shall execute any documents reasonably requested by the Company in writing in order to  evidence the release of any Subsidiary Guarantor from its obligations under its Note Guarantee.  Any Subsidiary Guarantor not released from its obligations under its Note Guarantee shall remain liable for  the full amount of principal of and interest on the Notes and for the other obligations of any Subsidiary Guarantor  under this Indenture as provided in this Article X.   SECTION 10.6. Benefits Acknowledged. Each Subsidiary Guarantor acknowledges that it will receive  direct and indirect benefits from the financing arrangements contemplated by this Indenture and that its guarantee and  waivers pursuant to its Note Guarantee are knowingly made in contemplation of such benefits.  ARTICLE XI  MISCELLANEOUS  SECTION 11.1. Notices. Any notice, request, direction, instruction or communication by the  Company, any Subsidiary Guarantor or the Trustee to the others is duly given if in writing and delivered in person or  mailed by first class mail (registered or certified, return receipt requested), telecopier or overnight air courier  guaranteeing next day delivery, to the addresses set forth below:  If to the Company or any Subsidiary Guarantor:  Atkore Inc.  16100 South Lathrop Avenue  Harvey, Illinois 60426  Attention: Treasurer    With a copy (which shall not constitute notice) to:  Mayer Brown LLP  1221 Avenue of the Americas  New York, New York 10020  





 






80    Facsimile: (212) 262-1910  Attention: David A. Schuette  John P. Berkery  If to the Trustee:  The Bank of New York Mellon Trust Company, N.A.  2 North LaSalle Street, Suite 700  Chicago, IL 60602  Attention: Corporate Trust Administration   (Facsimile: (312) 827-8522)    The parties hereto, by written notice to the others, may designate additional or different addresses for  subsequent notices or communications.  Any notice or communication to a Holder shall be mailed by first class mail or by overnight air courier  promising next Business Day delivery to its address shown on the register kept by the Registrar. Notwithstanding the  foregoing, as long as the Notes are Global Notes, notices to be given to the Holders shall be given to the Depositary  in accordance with its applicable policies as in effect from time to time. 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 respect of this Indenture, the Trustee shall not have any duty or obligation to verify or confirm that the  Person sending instructions, directions, reports, notices or other communications or information by electronic  transmission is, in fact, a Person authorized to give such instructions, directions, reports, notices or other  communications or information on behalf of the party purporting to send such electronic transmission; and the Trustee  shall not have any liability for any losses, liability, costs or expenses incurred or sustained by any party as a result of  such reliance upon or compliance with such instructions, directions, reports, notices or other communications or  information. Each other party, agrees to assume all risks arising out of the use of electronic methods to submit  instructions, directions, reports, notices or other communications or information to the Trustee, including without  limitation the risk of the Trustee acting on unauthorized instructions, directions, notices, reports or other  communications or information, and the risks of interception and misuse by third parties.  If a notice or communication is delivered in the manner provided above within the time prescribed, it is duly  given, whether or not the addressee receives it, except in the case of notices or communications given to the Trustee,  which shall be effective only upon actual receipt.  If the Company delivers a notice or communication to Holders, it shall mail a copy to the Trustee and each  Agent at the same time.   SECTION 11.2. Certificate and Opinion as to Conditions Precedent. Upon any request or application  by the Company to the Trustee to take any action under this Indenture, the Company shall furnish to the Trustee upon  request:  (a) an Officer’s Certificate (which shall include the statements set forth in Section 11.3) stating  that, in the opinion of the signers all conditions precedent and covenants, if any, provided for in this Indenture  relating to the proposed action have been satisfied; and  (b) an Opinion of Counsel (which shall include the statements set forth in Section 11.3) stating  that, in the opinion of such counsel, all such conditions precedent and covenants have been satisfied.   





 






81    SECTION 11.3. Statements Required in Certificate or Opinion. Each certificate or opinion with respect  to compliance with a condition or covenant provided for in this Indenture (other than a certificate provided pursuant  to Section 4.4) shall include substantially:  (a) a statement that the Person making such certificate or opinion has read and understands  such covenant or condition;   (b) a brief statement as to the nature and scope of the examination or investigation upon which  the statements or opinions contained in such certificate or opinion are based;  (c) a statement that, in the opinion of such Person, he or she has made such examination or  investigation as is necessary to enable him or her to express an informed opinion as to whether or not such  covenant or condition has been satisfied; and   (d) a statement as to whether or not, in the opinion of such Person, such condition or covenant  has been satisfied.  SECTION 11.4. Rules by Trustee and Agents. The Trustee may make reasonable rules for action by or  at a meeting of Holders. Each of the Agents may make reasonable rules and set reasonable requirements for its  functions.  SECTION 11.5. No Personal Liability of Directors, Officers, Employees and Stockholders. No past,  present or future director, officer, employee, incorporator or stockholder, partner or member of the Company or any  Subsidiary Guarantor, as such, will have any liability for any indebtedness, obligations or liabilities of the Company  under the Notes or this Indenture or of any Subsidiary Guarantor under the Notes, the Note Guarantee or this Indenture  or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting  a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the  Notes and the Note Guarantees.   SECTION 11.6. Governing Law; Consent to Jurisdiction; Waiver of Jury Trial. THE LAW OF THE  STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS INDENTURE, THE NOTES  AND THE NOTE GUARANTEES. Each of the parties to this Indenture each hereby irrevocably submits to the non- exclusive jurisdiction of any New York State or federal court sitting in the Borough of Manhattan in The City of New  York in any action or proceeding arising out of or relating to the Notes, the Note Guarantees or this Indenture, and all  such parties hereby irrevocably agree that all claims in respect of such action or proceeding may be heard and  determined in such New York State or federal court and hereby irrevocably waive, to the fullest extent that they may  legally do so, the defense of an inconvenient forum to the maintenance of such action or proceeding. EACH OF THE  COMPANY, THE SUBSIDIARY GUARANTORS AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES,  TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY  JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES  OR THE TRANSACTION CONTEMPLATED HEREBY.  SECTION 11.7. No Adverse Interpretation of Other Agreements. This Indenture may not be used to  interpret any other indenture, loan or debt agreement of the Company or its Subsidiaries or of any other Person. Any  such indenture, loan or debt agreement may not be used to interpret this Indenture.  SECTION 11.8. Successors. All agreements of the Company and the Subsidiary Guarantors in this  Indenture and the Notes and the Note Guarantees, as applicable, shall bind their respective successors and assigns. All  agreements of the Trustee in this Indenture shall bind its successors and assigns.  SECTION 11.9. Severability. In case any provision in this Indenture or in the 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.  





 






82    SECTION 11.10. Execution in Counterparts. This Indenture may be executed in two or more  counterparts, which when so executed shall constitute one and the same agreement. The exchange of copies of this  Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of  this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes. Signatures of  the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes. The  words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to this Indenture or any  document to be signed in connection with this Indenture shall be deemed to include electronic signatures, deliveries  or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability  as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the  case may be, and the parties hereto consent to conduct the transactions contemplated hereunder by electronic means.  The Trustee shall have the right to accept and act upon any notice, instruction, or other communication,  including any funds transfer instruction, (each, a “Notice”) received pursuant to this Indenture by electronic  transmission (including by e-mail, facsimile transmission, web portal or other electronic methods) and shall not have  any duty to confirm that the person sending such Notice is, in fact, a person authorized to do so. Electronic signatures  believed by the Trustee to comply with the ESIGN Act of 2000 or other applicable law (including electronic images  of handwritten signatures and digital signatures provided by DocuSign, Orbit, Adobe Sign or any other digital  signature provider identified by any other party hereto and acceptable to the Trustee) shall be deemed original  signatures for all purposes. Each other party to this Indenture assumes all risks arising out of the use of electronic  signatures and electronic methods to send Notices to the Trustee, including without limitation the risk of the Trustee  acting on an unauthorized Notice and the risk of interception or misuse by third parties. Notwithstanding the foregoing,  the Trustee may in any instance and in its sole discretion require that an original document bearing a manual signature  be delivered to the Trustee in lieu of, or in addition to, any such electronic Notice.  SECTION 11.11. Table of Contents, Headings, Etc. The Table of Contents, Cross-Reference Table 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 of this Indenture and shall in no way modify or restrict any of the terms or provisions hereof.  SECTION 11.12. Acts of Holders.  (a) Any request, demand, authorization, direction, notice, consent, waiver or other action  provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or  more instruments of substantially similar tenor signed by such Holders in person or by agent duly appointed  in writing (or, with respect to Global Notes, otherwise in accordance with the rules and procedures of the  Depositary); and, except as herein otherwise expressly provided, such action shall become effective when  such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the  Company. Such instrument or instruments (and the action embodied therein and evidenced thereby) are  herein sometimes referred to as the “Act” of Holders signing such instrument or instruments. Proof of  execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose  of this Indenture and conclusive in favor of the Trustee and the Company, if made in the manner provided in  this Section 11.12.  (b) The fact and date of the execution by any Person of any such instrument or writing may be  proved (1) by the affidavit of a witness of such execution or by a certificate of a notary public or other officer  authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument  or writing acknowledged to such officer the execution thereof or (2) in any other manner reasonably deemed  sufficient by the Trustee. Where such execution is by a signer acting in a capacity other than such signer’s  individual capacity, such certificate or affidavit shall also constitute sufficient proof of such signer’s  authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person  executing the same, may also be proved in any other manner which the Trustee deems sufficient.   (c) The ownership of Notes shall be proved by the register maintained by the Registrar  hereunder.   





 






83    (d) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the  Holder of any Note shall bind every future Holder of the same Note and the Holder of every Note issued  upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done,  omitted or suffered to be done by the Trustee or the Company in reliance thereon, whether or not notation of  such action is made upon such Note.   (e) If the Company shall solicit from the Holders any request, demand, authorization,  direction, notice, consent, waiver or other Act, the Company may, at its option, by or pursuant to an Officer’s  Certificate, fix in advance a record date for the determination of Holders entitled to give such request,  demand, authorization, direction, notice, consent, waiver or other Act, but the Company shall have no  obligation to do so. If such a record date is fixed, such request, demand, authorization, direction, notice,  consent, waiver or other Act may be given before or after such record date, but only the Holders of record at  the close of business on such record date shall be deemed to be Holders for the purposes of determining  whether Holders of the requisite proportion of outstanding Notes have authorized or agreed or consented to  such request, demand, authorization, direction, notice, consent, waiver or other Act, and for that purpose the  outstanding Notes shall be computed as of such record date; provided that no such authorization, agreement  or consent by the Holders on such record date shall be deemed effective unless it shall become effective  pursuant to the provisions of this Indenture not later than six months after the record date.  (f) The Trustee may, but shall not be obligated to, set any day as a record date for the purpose  of determining the Holders entitled to join in the giving or making of (1) any notice of default under Section  6.1, (2) any declaration of acceleration referred to in Section 6.2, (3) any direction referred to in Section 6.5  or (4) any request to pursue a remedy as permitted in Section 6.6. If any record date is set pursuant to this  paragraph, the Holders on such record date, and no other Holders, shall be entitled to join in such notice,  declaration, request or direction, whether or not such Holders remain Holders after such record date; provided  that no such action shall be effective hereunder unless made, given or taken on or prior to the applicable  Expiration Date by Holders of the requisite principal amount of Notes or each affected Holder, as applicable,  on such record date. Promptly after any record date is set pursuant to this paragraph, the Trustee, at the  Company’s expense, shall cause notice of such record date, the proposed action by Holders and the applicable  Expiration Date to be given to the Company and to each Holder in the manner set forth in Section 11.1.   (g) Without limiting the foregoing, a Holder entitled to take any action hereunder with regard  to any particular Note may do so with regard to all or any part of the principal amount of such Note or by  one or more duly appointed agents, each of which may do so pursuant to such appointment with regard to all  or any part of such principal amount. Any notice given or action taken by a Holder or its agents with regard  to different parts of such principal amount pursuant to this paragraph shall have the same effect as if given  or taken by separate Holders of each such different part.  (h) Without limiting the generality of the foregoing, a Holder, including a Depositary that is  the Holder of a Global Note, may make, give or take, by a proxy or proxies duly appointed in writing, any  request, demand, authorization, direction, notice, consent, waiver or other action provided in this Indenture  to be made, given or taken by Holders, and a Depositary that is the Holder of a Global Note may provide its  proxy or proxies to the beneficial owners of interests in any such Global Note through such Depositary’s  standing instructions and customary practices.  (i) The Company may fix a record date for the purpose of determining the Persons who are  beneficial owners of interests in any Global Note held by a Depositary entitled under the procedures of such  Depositary, if any, to make, give or take, by a proxy or proxies duly appointed in writing, any request,  demand, authorization, direction, notice, consent, waiver or other action provided in this Indenture to be  made, given or taken by Holders; provided that if such a record date is fixed, only the beneficial owners of  interests in such Global Note on such record date or their duly appointed proxy or proxies shall be entitled to  make, give or take such request, demand, authorization, direction, notice, consent, waiver or other action,  whether or not such beneficial owners remain beneficial owners of interests in such Global Note after such  record date. No such request, demand, authorization, direction, notice, consent, waiver or other action shall  be effective hereunder unless made, given or taken on or prior to the applicable Expiration Date.  





 






84    (j) With respect to any record date set pursuant to this Section 11.12, the party hereto that sets  such record date may designate any day as the “Expiration Date” and from time to time may change the  Expiration Date to any earlier or later day; provided that no such change shall be effective unless notice of  the proposed new Expiration Date is given to the other party hereto in writing, and to each Holder of Notes  in the manner set forth in Section 11.1, on or prior to both the existing and the new Expiration Date. If an  Expiration Date is not designated with respect to any record date set pursuant to this Section 11.12, the party  hereto which set such record date shall be deemed to have initially designated the 90th day after such record  date as the Expiration Date with respect thereto, subject to its right to change the Expiration Date as provided  in this clause (j).  SECTION 11.13. Force Majeure. In no event shall the Trustee or any Agent be responsible or liable for  any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly,  forces beyond its control, including, without limitation, fire, riots, strikes, or work stoppages for any reason,  embargoes, governmental actions, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural  catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software  and hardware) services, it being understood that the Trustee and each Agent shall use reasonable efforts which are  consistent with accepted practices in the U.S. banking industry to resume performance as soon as practicable under  the circumstances.  SECTION 11.14. Legal Holidays. If any payment date with respect to the Notes falls on a day that is not  a Business Day, the payment to be made on such payment date will be made on the next succeeding Business Day  with the same force and effect as if made on such payment date, and no additional interest will accrue solely as a result  of such delayed payment.  SECTION 11.15. USA PATRIOT Act. The parties hereto acknowledge that in accordance with Section  326 of the USA PATRIOT Act, the Trustee, like all financial institutions and in order to help fight the funding of  terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or  legal entity that establishes a relationship or opens an account. The Company agrees that it will provide the Trustee  with information about the Company as the Trustee may reasonably request in order for the Trustee to satisfy the  requirements of the USA PATRIOT Act.  SECTION 11.16. OFAC. Each of the Subsidiary Guarantors and the Company covenants and represents  that neither they nor any of their affiliates, subsidiaries, directors or officers are the target or subject of any sanctions  enforced by the U.S. Government (including the Office of Foreign Assets Control of the U.S. Department of the  Treasury (“OFAC”)), the United Nations Security Council, the European Union, HM Treasury, or other relevant  sanctions authority (collectively “Sanctions”). Each of the Subsidiary Guarantors and the Company covenants and  represents that neither they nor any of their affiliates, subsidiaries, directors or officers will use any payments made  pursuant to this Indenture, (i) to fund or facilitate any activities of or business with any person who, at the time of such  funding or facilitation, is the subject or target of Sanctions, (ii) to fund or facilitate any activities of or business with  any country or territory that is the target or subject of Sanctions, or (iii) in any other manner that will result in a  violation of Sanctions by any person.    [Signature pages follow]  





 






[Signature Page to Indenture - Company]  Dated as of May 26, 2021  ATKORE INC.    By: ___/s/ John Deitzer____________   Name:  John Deitzer  Title:  Vice President and Treasurer    





 






[Signature Page to Indenture - Guarantors]       GUARANTORS:     ATKORE INTERNATIONAL HOLDINGS INC.    By___/s/ John Deitzer_________  Name: John Deitzer  Title: Vice President      ATKORE INTERNATIONAL, INC.   AFC CABLE SYSTEMS, INC.   ALLIED TUBE & CONDUIT CORPORATION   ATKORE PLASTIC PIPE CORPORATION   ATKORE PLASTICS SOUTHEAST, LLC  ATKORE RMCP, INC.   ATKORE SOUTHWEST, LLC  ATKORE STEEL COMPONENTS, INC.   CALPIPE INDUSTRIES, LLC   GEORGIA PIPE COMPANY   TKN, INC.    UNISTRUT INTERNATIONAL CORPORATION   US TRAY, INC.   WPFY, INC.      By____/s/ John Deitzer_________  Name: John Deitzer  Title: Vice President, Treasurer   and Assistant Secretary                       COLUMBIA-MBF INC.     By___/s/ Daniel S. Kelly________   Name: Daniel S. Kelly   Title: Vice President               





 






[Signature Page to Indenture - Trustee]  Dated as of May 26, 2021 THE BANK OF NEW YORK MELLON TRUST  COMPANY, N.A.  as Trustee  By: __/s/ Lawrence M. Kusch   Name: Lawrence M. Kusch  Title:   Vice President                             





 






A-1  EXHIBIT A  FORM OF NOTE  (Face of 4.25% Senior Note)  4.25% Senior Notes due 2031  [Global Note Legend]  UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE  DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE COMPANY OR  ITS AGENT FOR REGISTRATION OR TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE  ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS MAY BE  REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND  ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS MAY BE  REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY  TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS  WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.  TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN  PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR  SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE  LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE  INDENTURE REFERRED TO ON THE REVERSE HEREOF.  [Restricted Notes Legend]  THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE  “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER  THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,  TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH  REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH  REGISTRATION. THE HOLDER OF THIS NOTE, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN  BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED NOTES, TO  OFFER, SELL OR OTHERWISE TRANSFER SUCH NOTE, PRIOR TO THE DATE (THE “RESALE  RESTRICTION TERMINATION DATE”) THAT IS SIX MONTHS AFTER (ASSUMING AT THE TIME OF  TRANSFER THE COMPANY IS IN COMPLIANCE WITH THE PUBLIC INFORMATION REQUIREMENTS  OF RULE 144(C) UNDER THE SECURITIES ACT AND, IF NOT, ONE YEAR AFTER) THE LATER OF THE  ORIGINAL ISSUE DATE HEREOF, THE ORIGINAL ISSUE DATE OF THE ISSUANCE OF ANY  ADDITIONAL NOTES AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE  ISSUER WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF SUCH NOTE), ONLY (A) TO THE  COMPANY OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT THAT  HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE NOTES  ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”),  TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN  RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED  INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN  RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT  OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE  SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF  RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS NOT A QUALIFIED  INSTITUTIONAL BUYER AND THAT IS PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT  OF ANOTHER INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL  AMOUNT OF NOTES OF $250,000 OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE  REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE  TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D), (E)  





 






A-2  OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/ OR OTHER  INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE  REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.   BY ITS ACQUISITION OF THIS NOTE, THE HOLDER HEREOF WILL BE DEEMED TO HAVE  REPRESENTED AND WARRANTED THAT EITHER (1) NO PORTION OF THE ASSETS USED BY SUCH  HOLDER TO ACQUIRE OR HOLD THIS NOTE CONSTITUTES THE ASSETS OF AN EMPLOYEE BENEFIT  PLAN THAT IS SUBJECT TO TITLE I OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT  OF 1974, AS AMENDED (“ERISA”), OF A PLAN, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER  ARRANGEMENT THAT IS SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986,  AS AMENDED (THE “CODE”), OR PROVISIONS UNDER ANY OTHER U.S. OR NON-U.S. FEDERAL,  STATE, LOCAL OR OTHER LAWS OR REGULATIONS THAT ARE SIMILAR TO SUCH PROVISIONS OF  ERISA OR THE CODE (“SIMILAR LAWS”), OR OF AN ENTITY WHOSE UNDERLYING ASSETS ARE  CONSIDERED TO INCLUDE “PLAN ASSETS” OF ANY SUCH PLAN, ACCOUNT OR ARRANGEMENT, OR  (2) THE ACQUISITION, HOLDING AND DISPOSITION OF THIS NOTE WILL NOT CONSTITUTE OR  RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION  4975 OF THE CODE OR A VIOLATION OF ANY APPLICABLE SIMILAR LAWS.  [Regulation S Legend]  THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE  “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER  THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,  TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH  REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH  REGISTRATION. THE HOLDER OF THIS NOTE, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN  BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED NOTES, TO  OFFER, SELL OR OTHERWISE TRANSFER SUCH NOTE, PRIOR TO THE DATE (THE “RESALE  RESTRICTION TERMINATION DATE”) THAT IS 40 DAYS AFTER THE LATER OF THE ORIGINAL ISSUE  DATE HEREOF, THE ORIGINAL ISSUE DATE OF THE ISSUANCE OF ANY ADDITIONAL NOTES AND  THE DATE ON WHICH THIS NOTE (OR ANY PREDECESSOR OF SUCH NOTE) WAS FIRST OFFERED TO  PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN RULE 902 OF REGULATION S) IN RELIANCE  ON REGULATION S, ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO  A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES  ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER  THE SECURITIES ACT (“RULE 144A”), TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED  INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR  FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE  TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO  NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF  REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED INVESTOR”  WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS NOT A  QUALIFIED INSTITUTIONAL BUYER AND THAT IS PURCHASING FOR ITS OWN ACCOUNT OR FOR  THE ACCOUNT OF ANOTHER INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A  MINIMUM PRINCIPAL AMOUNT OF NOTES OF $250,000 OR (F) PURSUANT TO ANOTHER AVAILABLE  EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE  COMPANY’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER  PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,  CERTIFICATION AND/ OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND  WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION  TERMINATION DATE. BY ITS ACQUISITION HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS  NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON AND IS  ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S  UNDER THE SECURITIES ACT.  





 






A-3  BY ITS ACQUISITION OF THIS NOTE, THE HOLDER HEREOF WILL BE DEEMED TO HAVE  REPRESENTED AND WARRANTED THAT EITHER (1) NO PORTION OF THE ASSETS USED BY SUCH  HOLDER TO ACQUIRE OR HOLD THIS NOTE CONSTITUTES THE ASSETS OF AN EMPLOYEE BENEFIT  PLAN THAT IS SUBJECT TO TITLE I OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT  OF 1974, AS AMENDED (“ERISA”), OF A PLAN, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER  ARRANGEMENT THAT IS SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986,  AS AMENDED (THE “CODE”) OR PROVISIONS UNDER ANY OTHER U.S. OR NON-U.S. FEDERAL, STATE,  LOCAL OR OTHER LAWS OR REGULATIONS THAT ARE SIMILAR TO SUCH PROVISIONS OF ERISA OR  THE CODE (“SIMILAR LAWS”), OR OF AN ENTITY WHOSE UNDERLYING ASSETS ARE CONSIDERED  TO INCLUDE “PLAN ASSETS” OF ANY SUCH PLAN, ACCOUNT OR ARRANGEMENT, OR (2) THE  ACQUISITION, HOLDING AND DISPOSITION OF THIS NOTE WILL NOT CONSTITUTE OR RESULT IN A  NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE  CODE OR A VIOLATION OF ANY APPLICABLE SIMILAR LAWS.    





 






A-4  No.              CUSIP NO.1  ISIN  Atkore Inc. (including any successor thereto) promises to pay to [Cede & Co.]2 or registered assigns, the  principal sum of ________ [(as may be increased or decreased as set forth on the Schedule of Increases and Decreases  attached hereto)]3 on June 1, 2031.  Interest Payment Dates: June 1 and December 1, beginning [ ]  Record Dates: May 15 and November 15 (whether or not a Business Day)  Reference is made to further provisions of this Note set forth on the reverse hereof, which further provisions  shall for all purposes have the same effect as set forth at this place.  Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse  hereof by manual signature, this Note shall not be entitled to any benefits under the Indenture referred to on the reverse  hereof or be valid or obligatory for any purpose.            1 Rule 144A Note CUSIP: 047649 AA6  Rule 144A Note ISIN: US047649AA63  Regulation S Note CUSIP: U0479M AA8  Regulation S Note ISIN: USU0479MAA81  IAI Note CUSIP: 047649 AB4   IAI Note ISIN: US047649AB47  2 For Global Notes only.  3 For Global Notes only.  





 






A-5  ATKORE INC.  By:          Name:    Title:     This is one of the Notes referred to in the  within-mentioned Indenture:  Dated:   THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee    By:          Authorized Signatory      





 






A-6     (Back of 4.25% Senior Note)     4.25% Senior Notes due 2031  Capitalized terms used herein shall have the meanings assigned to them in the Indenture referred to below  unless otherwise indicated.  (1) Interest. Atkore Inc., a Delaware corporation, and any successor thereto (the “Company”) promises  to pay interest on the unpaid principal amount of this 4.25% Senior Note due 2031 (a “Note”) at a fixed rate of 4.25%  per annum. The Company will pay interest in U.S. dollars semiannually in arrears on June 1 and December 1,  commencing on [ ] (each an “Interest Payment Date”) or if any such day is not a Business Day, on the next succeeding  Business Day with the same force and effect as if made on such Interest Payment Date, and no additional interest shall  accrue solely as a result of such delayed payment. Interest on the Notes shall accrue from the most recent date to which  interest has been paid, or, if no interest has been paid, from and including the date of issuance. The Company shall  pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal at  the rate equal to the then applicable interest rate on the Notes to the extent lawful; it shall pay interest (including post- petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest (without regard to  any applicable grace period), at the same rate to the extent lawful. Interest shall be computed on the basis of a 360- day year comprised of twelve 30-day months.  (2) Method of Payment. The Company will pay interest on the Notes (except defaulted interest) on the  applicable Interest Payment Date to the Persons who are registered Holders at the close of business on the May 15 and  November 15 preceding the Interest Payment Date (whether or not a Business Day), even if such Notes are cancelled  after such record date and on or before such Interest Payment Date, except as provided in Section 2.12 of the Indenture  with respect to defaulted interest. If a Holder having an aggregate principal amount of more than $5,000,000 has given  written wire transfer instructions to that Holder’s U.S. dollar account within the United States to the Trustee at least  ten Business Days prior to the applicable Interest Payment Date, the Company will make all payments of principal,  premium and interest, on such Holder’s Notes by wire transfer of immediately available funds to the account specified  in those instructions. Otherwise, payments on the Notes will be made at the office or agency of the Trustee or Paying  Agent unless the Company elects to make interest payments by check mailed to the Holders at their addresses set forth  in the register of Holders. Such payment shall be in such coin or currency of the United States of America as at the  time of payment is legal tender for payment of public and private debts.  Any payments of principal of this Note prior to Stated Maturity shall be binding upon all future Holders of  this Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof,  whether or not noted hereon. The final principal amount due and payable at the maturity of this Note shall be payable  only upon presentation and surrender of this Note at an office of the Trustee or the Trustee’s agent appointed for such  purposes. Payments in respect of Global Notes will be made by wire transfer of immediately available funds to the  Depositary.  (3) Paying Agent and Registrar. Initially, The Bank of New York Mellon Trust Company, N.A. shall  act as Paying Agent and Registrar. The Company may change any Paying Agent or Registrar without notice to any  Holder, and the Company and/or any Restricted Subsidiaries may act as Paying Agent or Registrar.  (4) Indenture. The Company issued the Notes under an Indenture, dated as of May 26, 2021 (the  “Indenture”), among the Company, the Subsidiary Guarantors thereto and the Trustee. The terms of the Notes include  those stated in the Indenture. To the extent the provisions of this Note are inconsistent with the provisions of the  Indenture, the Indenture shall govern. The Notes are subject to all such terms, and Holders are referred to the Indenture  for a statement of such terms. The Initial Notes issued on the Issue Date were initially issued in an aggregate principal  amount of $400,000,000. The Indenture permits the issuance of Additional Notes subject to compliance with certain  conditions.  The payment of principal, premium and interest on the Notes and all other amounts under the Indenture is  unconditionally guaranteed, jointly and severally, on a senior unsecured basis by the Subsidiary Guarantors.  (5) Optional Redemption.  





 






A-7  (a) The Notes may be redeemed, in whole or in part, at any time or from time to time prior to  June 1, 2026 at the option of the Company, at a redemption price equal to 100.0% of the principal amount of  the Notes redeemed plus the Applicable Premium as of, and accrued and unpaid interest, if any to, but  excluding, the applicable redemption date (subject to the right of Holders of record on the relevant record  date to receive interest due on the relevant Interest Payment Date).  (b) At any time or from time to time on or after June 1, 2026, the Company, at its option, may  redeem the Notes in whole or in part at the redemption prices (expressed as percentages of principal amount  of the Notes to be redeemed) set forth below, together with accrued and unpaid interest, if any, to, but  excluding, the applicable redemption date (subject to the right of Holders of record on the relevant record  date to receive interest due on the relevant Interest Payment Date), if redeemed during the 12-month period  beginning June 1 of the years indicated below:   Year  Redemption Price  2026..................................................................... 102.125%  2027 ..................................................................... 101.417%  2028 ..................................................................... 100.708%  2029 and thereafter ................................................... 100.000%    (c) The Notes may also be redeemed in certain circumstances set forth in Section 4.13 of the  Indenture.   (6) Offer to Purchase upon Change of Control. The provisions governing Asset Dispositions and  Change of Control Offers are set forth in Sections 4.10 and 4.13, respectively, of the Indenture.  (7) Notice of Redemption. Notice of redemption shall be delivered at least ten days but not more than  60 days before the redemption date (except that notices may be delivered more than 60 days before an expected  redemption date if the notice is issued in accordance with Article VIII of the Indenture) to each Holder whose Notes  are to be redeemed in accordance with Section 11.1 of the Indenture. Notices of redemption may be subject to  conditions precedent as set forth in the Indenture. Notes in denominations larger than $2,000 may be redeemed in part  so long as no partial redemption results in a Note having a principal amount of less than $2,000.   (8) Denominations, Transfer, Exchange. The Notes are in registered form without coupons in initial  denominations of $2,000 and integral multiples of $1,000 in excess thereof. The transfer of the Notes may be registered  and the Notes may be exchanged as provided in the Indenture. The Registrar, the Trustee and the Company may  require a Holder, among other things, to furnish appropriate endorsements and transfer documents, and the Company  may require a Holder to pay any stamp or transfer tax or similar government charge required by law or permitted by  the Indenture in accordance with Section 2.6(g)(2) of the Indenture. The Registrar is not required (A) to issue, to  register the transfer of or to exchange Notes during a period beginning at the opening of 15 days before the day of any  selection of Notes for redemption and ending at the close of business on the day of such selection, (B) to register the  transfer of or to exchange any Note so selected for redemption in whole or in part, except the unredeemed portion of  any Note being redeemed in part, or (C) to register the transfer of or to exchange a Note between a record date and  the next succeeding Interest Payment Date.  (9) Persons Deemed Owners. The registered Holder of a Note may be treated as its owner for all  purposes.  (10) Amendment, Supplement and Waiver. The Indenture, the Notes and the Note Guarantees may be  amended or supplemented as provided in Article IX of the Indenture.   (11) Defaults and Remedies. The Events of Default relating to the Notes are set forth in Article VI of the  Indenture.   (12) No Recourse Against Others. No director, officer, employee, incorporator or stockholder, partner or  member of the Company or any Subsidiary Guarantor, as such, will have any liability for any indebtedness, obligations  





 






A-8  or liabilities of the Company under the Notes or the Indenture or of any Subsidiary Guarantor under its Note Guarantee  or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting  a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the  Notes and the Note Guarantees.  (13) Authentication. This Note shall not be valid until authenticated by the manual signature of the  Trustee or an authenticating agent.  (14) Abbreviations. Customary abbreviations may be used in the name of a Holder or an assignee, such  as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of  survivorship and not as tenants in common), CUST (= custodian) and U/G/M/A (= Uniform Gifts to Minors Act).   (15) CUSIP and ISIN Numbers. Pursuant to a recommendation promulgated by the Committee on  Uniform Security Identification Procedures, the Company has caused CUSIP and ISIN numbers to be printed on the  Notes, and the Trustee may use CUSIP and ISIN numbers in notices of redemption as a convenience to the Holders.  No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any  notice of redemption, and reliance may be placed only on the other identification numbers placed thereon.  The Company shall furnish to any Holder upon written request and without charge a copy of the Indenture.  Requests may be made to:  Atkore Inc.  16100 South Lathrop Avenue  Harvey, Illinois 60426  Attention: Treasurer        





 






A-9  ASSIGNMENT FORM    To assign this Note, fill in the form below: (I) or (we) assign and transfer this Note to                 (Insert assignee’s soc. sec. or tax I.D. no.)                                                                         (Print or type assignee’s name, address and zip code)  and irrevocably appoint                 to transfer this Note on the books of the Company. The agent may substitute another to act for him.  Date:      Your Signature:          (Sign exactly as your name   appears on the face of this Note)          Signature guarantee:  





 






A-10  OPTION OF HOLDER TO ELECT PURCHASE  If you want to elect to have this Note purchased by the Company pursuant to Section 4.10 or Section 4.13 of  the Indenture, check the box below:    [  ] Section 4.10 [  ] Section 4.13  If you want to elect to have only part of the Note purchased by the Company pursuant to Section 4.10 or  Section 4.13 of the Indenture, state the amount you elect to have purchased:   $______________  Date:  Your Signature:          (Sign exactly as your name   appears on the face of this Note)    Tax Identification No.:            Signature guarantee:  





 






A-11  [INCLUDE IN TRANSFER RESTRICTED NOTES]  CERTIFICATE TO BE DELIVERED UPON  EXCHANGE OF TRANSFER RESTRICTED NOTES  Atkore Inc.  16100 South Lathrop Avenue  Harvey, Illinois 60426  Attention: Treasurer    The Bank of New York Mellon Trust Company, N.A.  2 North LaSalle Street, Suite 700  Chicago, IL 60602  Attention: Corporate Trust Administration   (Facsimile: (312) 827-8522)  Re: 4.25% Senior Notes due 2031 CUSIP NO. ________  Reference is hereby made to that certain Indenture dated as of May 26, 2021 (the “Indenture”) among Atkore  Inc. (the “Company”), the guarantors named therein, and The Bank of New York Mellon Trust Company, N.A., as  Trustee (the “Trustee”). Capitalized terms used but not defined herein shall have the meanings set forth in the  Indenture.  This certificate relates to $______ principal amount of Notes held in (check applicable space) ___________  book-entry or ____________ definitive form by the undersigned.  In connection with any transfer of any of the Notes evidenced by this certificate occurring prior to the  expiration of the Resale Restriction Termination Date, the undersigned confirms that such Notes are being transferred  as follows:   CHECK ONE BOX BELOW:  (1)  to the Company or any of its subsidiaries; or  (2)  inside the United States to a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act  of 1933, as amended) that purchases for its own account or for the account of a qualified institutional buyer  to whom notice is given that such transfer is being made in reliance on Rule 144A under the Securities Act  of 1933, as amended, in each case pursuant to and in compliance with Rule 144A thereunder; or  (3)  transferred pursuant to an effective registration statement under the Securities Act of 1933, as amended (the  “Securities Act”); or  (4)  outside the United States in an offshore transaction within the meaning of Regulation S under the Securities  Act, in compliance with Rule 904 thereunder; or  (5)  transferred to an institutional “accredited investor” (within the meaning of Rule 501(a)(1), (2), (3) or (7)  under the Securities Act), that has furnished to the Trustee a signed letter containing certain representations  and agreements (the form of which letter appears as Exhibit D of the Indenture); or   (6)  transferred pursuant to another available exemption from the registration requirements under the Securities  Act.  Unless one of the boxes is checked, the Registrar will refuse to register any of the Notes evidenced by this  certificate in the name of any person other than the registered Holder thereof; provided, however, that if box (4), (5)  or (6) is checked, the Trustee or the Company may require, prior to registering any such transfer of the Securities, the  





 






A-12  delivery of an opinion of counsel, certification and/or other information satisfactory to each of them to confirm that  such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration  requirements of the Securities Act, such as the exemption provided by Rule 144 under such Act.           Signature  Signature Guarantee:             (Signature must be guaranteed by a participant in a recognized signature guarantee  medallion program)  TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED.  The undersigned represents and warrants that it is purchasing this Note for its own account or an account  with respect to which it exercises sole investment discretion and that each of it and any such account is a “qualified  institutional buyer” within the meaning of Rule 144A under the Securities Act of 1933, as amended (“Rule 144A”),  and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such  information regarding the Company as the undersigned has requested pursuant to Rule 144A or has determined not to  request such information and that it is aware that the transferor is relying upon the undersigned’s foregoing  representations in order to claim the exemption from registration provided by Rule 144A.   [Name of Transferee]            NOTICE: To be executed by an executive officer, if an entity  Dated:        





 






A-13  SCHEDULE OF INCREASES AND DECREASES OF 4.25% SENIOR NOTES DUE 20314  The following transfers, exchanges and redemption of this Global Note have been made:    Date of Transfer,  Exchange or Redemption  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 Trustee or  Note Custodian                                                4 For Global Notes only.  





 






B-1  EXHIBIT B  [FORM OF SUPPLEMENTAL INDENTURE TO BE DELIVERED  BY SUBSEQUENT SUBSIDIARY GUARANTORS]  This Supplemental Indenture and Note Guarantee, dated as of _____________, 20__ (this “Supplemental  Indenture” or “Note Guarantee”), among ____________ (the “New Guarantor”), Atkore Inc. (together with its  successors and assigns, the “Company”), each other then-existing Subsidiary Guarantor under the Indenture referred  to below (the “Subsidiary Guarantors”), and The Bank of New York Mellon Trust Company, N.A., as Trustee, paying  agent and registrar under such Indenture.  W I T N E S S E T H:  WHEREAS, the Company, the Subsidiary Guarantors and the Trustee have heretofore executed and  delivered an Indenture, dated as of May 26, 2021 (as amended, supplemented, waived or otherwise modified, the  “Indenture”), providing for the issuance of an unlimited aggregate principal amount of 4.25% Senior Notes due 2031  of the Company (the “Notes”);  WHEREAS, Section 4.15 of the Indenture provides that in certain circumstances the Company may be  required to cause certain Restricted Subsidiaries of the Company to execute and deliver a Guarantee with respect to  the Notes on the same terms and conditions as those set forth in the Indenture.  WHEREAS, pursuant to Section 9.1 of the Indenture, the Trustee, the Company and the Subsidiary  Guarantors are authorized to execute and deliver this Supplemental Indenture to amend the Indenture, without the  consent of any Holder to add an additional Subsidiary Guarantor.  NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the  receipt of which is hereby acknowledged, the New Guarantor, the Company, the existing Subsidiary Guarantors and  the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders as follows:  ARTICLE I  Definitions  SECTION 1.1 Defined Terms. As used in this Supplemental Indenture, capitalized terms defined in the  Indenture or in the preamble or recitals thereto are used herein as therein defined. The words “herein,” “hereof” and  “hereby” and other words of similar import used in this Supplemental Indenture refer to this Supplemental Indenture  as a whole and not to any particular section hereof.  ARTICLE II  Agreement to be Bound; Guarantee  SECTION 2.1 Agreement to be Bound. The New Guarantor hereby becomes a party to the Indenture as a  Subsidiary Guarantor and as such shall have all of the rights and be subject to all of the obligations and agreements of  a Subsidiary Guarantor under the Indenture. The New Guarantor agrees to be bound by all of the provisions of the  Indenture applicable to a Subsidiary Guarantor and to perform all of the obligations and agreements of a Subsidiary  Guarantor under the Indenture, subject to the release provisions and other limitations set forth in the Indenture.   ARTICLE III  Miscellaneous  SECTION 3.1 Governing Law. This Supplemental Indenture shall be governed by, and construed in  accordance with, the laws of the State of New York.  SECTION 3.2 Severability Clause. In case any provision 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  





 






B-2  affected or impaired thereby and such provision shall be ineffective only to the extent of such invalidity, illegality or  unenforceability.  SECTION 3.3 Ratification of Indenture; Supplemental Indentures Part of Indenture; No Liability of  Trustee. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms,  conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part  of the Indenture for all purposes, and every Holder of a Note heretofore or hereafter authenticated and delivered shall  be bound hereby. The Trustee makes no representation or warranty as to the validity or sufficiency of this  Supplemental Indenture or the New Guarantor’s Note Guarantee. Additionally, the Trustee shall not be responsible in  any manner whatsoever for or with respect to any of the recitals or statements contained herein, all of which recitals  or statements are made solely by the Company, the New Guarantor and the Subsidiary Guarantors, and the Trustee  makes no representation with respect to any such matters.  SECTION 3.4 Counterparts. This Supplemental Indenture may be executed in two or more counterparts,  which when so executed shall constitute one and the same agreement. The exchange of copies of this Supplemental  Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of  this Supplemental Indenture as to the parties hereto and may be used in lieu of the original Supplemental Indenture  for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original  signatures for all purposes.   SECTION 3.5 Headings. The headings of the Articles and the sections in this Supplemental Indenture are  for convenience of reference only and shall not be deemed to alter or affect the meaning or interpretation of any  provisions hereof.  [Signatures on following page]    





 






B-3  IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed  as of the date first above written.  ATKORE INC.  By:         Name:  Title:  [EXISTING GUARANTORS]  By:         Name:  Title:  [NEW GUARANTOR],  as a Guarantor  By:         Name:  Title:  THE BANK OF NEW YORK MELLON   TRUST COMPANY, N.A.,  as Trustee  By:         Name:  Title: 





 






C-1  EXHIBIT C  [FORM OF CERTIFICATE TO BE DELIVERED  IN CONNECTION WITH TRANSFERS PURSUANT TO REGULATION S]  Atkore Inc.  16100 South Lathrop Avenue  Harvey, Illinois 60426  Attention: Treasurer    The Bank of New York Mellon Trust Company, N.A.  2 North LaSalle Street, Suite 700  Chicago, IL 60602  Attention: Corporate Trust Administration   (Facsimile: (312) 827-8522)     Re: Atkore Inc. (the “Company”) 4.25% Senior Notes due 2031 (the “Notes”)  Ladies and Gentlemen:  In connection with our proposed sale of $______________ aggregate principal amount of the Notes (CUSIP  No._______________), we confirm that such sale has been effected pursuant to and in accordance with Regulation S  (“Regulation S”) under the U.S. Securities Act of 1933, as amended (the “Securities Act”), and, accordingly, we  represent that:  (1) the offer of the Notes was not made to a person in the United States;  (2) either (a) at the time the buy order was originated, the transferee was outside the United States or  we and any person acting on our behalf reasonably believed that the transferee was outside the United States or (b)  the transaction was executed in, on or through the facilities of a designated off-shore securities market and neither we  nor any person acting on our behalf knows that the transaction has been pre-arranged with a buyer in the United States;  (3) no directed selling efforts have been made in the United States in contravention of the requirements  of Rule 903(b) or Rule 904(b) of Regulation S, as applicable; and  (4) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities  Act.   In addition, if the sale is made during a restricted period and the provisions of Rule 903(b) or Rule 904(b) of  Regulation S are applicable thereto, we confirm that such sale has been made in accordance with the applicable  provisions of Rule 903(b) or Rule 904(b), as the case may be.  The Company and you are entitled to rely upon this letter and are irrevocably authorized to produce this letter  or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to  the matters covered hereby. Terms used in this certificate have the meanings set forth in Regulation S.  Very truly yours,           [Name of Transferor]    By:         Authorized Signature  





 






D-1  EXHIBIT D  [FORM OF CERTIFICATE TO BE DELIVERED  IN CONNECTION WITH TRANSFERS TO IAIs]  Atkore Inc.  16100 South Lathrop Avenue  Harvey, Illinois 60426  Attention: Treasurer    The Bank of New York Mellon Trust Company, N.A.  2 North LaSalle Street, Suite 700  Chicago, IL 60602  Attention: Corporate Trust Administration   (Facsimile: (312) 827-8522)    Re: Atkore Inc. (the “Company”) 4.25% Senior Notes due 2031 (the “Notes”)  Ladies and Gentlemen:  This certificate is delivered to request a transfer of $_____________ principal amount of the  Notes.  Upon transfer, the Notes would be registered in the name of the new beneficial owner as follows:  Name:   Address:   Taxpayer ID Number:    The undersigned represents and warrants to you that:  1. We are an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or (7)  under the Securities Act of 1933, as amended (the “Securities Act”)), purchasing for our own account or for the  account of such an institutional “accredited investor” at least $250,000 principal amount of the Notes, and we are  acquiring the Notes not with a view to, or for offer or sale in connection with, any distribution in violation of the  Securities Act. We have such knowledge and experience in financial and business matters as to be capable of  evaluating the merits and risk of our investment in the Notes, and we invest in or purchase securities similar to the  Notes in the normal course of our business. We and any accounts for which we are acting are each able to bear the  economic risk of our or its investment.  2. We understand that the Notes have not been registered under the Securities Act (or the  securities laws of any state or other jurisdiction) and, unless so registered, may not be reoffered, sold, assigned,  transferred, pledged, encumbered or otherwise disposed of except as permitted in the following sentence. We agree  on our own behalf and on behalf of any investor account for which we are purchasing Notes to offer, sell or  otherwise transfer such Notes prior to the date that is six months after (assuming at the time of transfer the Company  is in compliance with the public information requirements of Rule 144(c) under the Securities Act and, if not, one  year after) the later of the date of original issue, the original issue date of any additional Notes and the last date on  which the Company or any affiliate of the Company was the owner of such Notes (or any predecessor thereto) (the  “Resale Restriction Termination Date”) only (a) to the Company or any of its subsidiaries, (b) pursuant to a  registration statement that has been declared effective under the Securities Act, (c) for so long as the Securities are  eligible for resale pursuant to Rule 144A under the Securities Act, in a transaction complying with the requirements  of Rule 144A under the Securities Act, to a person we reasonably believe is a “qualified institutional buyer” under  Rule 144A under the Securities Act (a “QIB”) that is purchasing for its own account or for the account of a QIB and  





 






D-2  to whom notice is given that the transfer is being made in reliance on Rule 144A, (d) pursuant to offers and sales  that occur outside the United States to non-U.S. persons, in compliance with Regulation S under the Securities Act,  (e) to an institutional “accredited investor” within the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities  Act that is not a QIB and is purchasing for its own account or for the account of another institutional “accredited  investor,” in each case in a minimum principal amount of Notes of $250,000, for investment purposes and not with a  view to or for offer or sale in connection with any distribution in violation of the Securities Act or (f) pursuant to  any other available exemption from the registration requirements of the Securities Act, subject in each of the  foregoing cases to any requirement of law that the disposition of our property or the property of such investor  account or accounts be at all times within our or their control and in compliance with any applicable state securities  laws. The foregoing restrictions on resale will not apply subsequent to the Resale Restriction Termination Date. If  any resale or other transfer of the Notes is proposed to be made pursuant to clause (e) above prior to the Resale  Restriction Termination Date, the transferor shall deliver a letter from the transferee substantially in the form of this  letter to the Company and The Bank of New York Mellon Trust Company, N.A., as Trustee (the “Trustee”), which  shall provide, among other things, that the transferee is an institutional “accredited investor” (within the meaning of  Rule 501(a)(1), (2), (3) or (7) under the Securities Act) and that it is acquiring such Notes for investment purposes  and not for distribution in violation of the Securities Act. Each purchaser acknowledges that the Company and the  Trustee reserve the right prior to any offer, sale or other transfer prior to the Resale Restriction Termination Date of  the Notes pursuant to clause (d), (e) or (f) above to require the delivery of an opinion of counsel, certifications  and/or other information satisfactory to the Company and the Trustee.   3. We [are] [are not] an affiliate of the Company.  





 






D-3    The Trustee and the Company are entitled to rely upon this letter and are irrevocably authorized to  produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official  inquiry with respect to the matters covered hereby.  Very truly yours,           [Name of Transferee]    By:         Authorized Signature