tsq8kfilingindentureexhi







EXECUTION VERSION                             TOWNSQUARE MEDIA, INC.       AND      WILMINGTON TRUST, NATIONAL ASSOCIATION,   as Trustee      6.500% Senior Notes due 2023      INDENTURE      Dated as of April 1, 2015           





 







   -ii-             Table of Contents   Page   ARTICLE I      DEFINITIONS AND INCORPORATION BY REFERENCE   SECTION 1.1. Definitions. ................................................................................................................................... 1   SECTION 1.2. Other Definitions. ....................................................................................................................... 33   SECTION 1.4. Rules of Construction ................................................................................................................. 35   ARTICLE II      THE NOTES   SECTION 2.1. Form, Dating and Terms. ........................................................................................................... 36   SECTION 2.2. Execution and Authentication .................................................................................................... 43   SECTION 2.3. Registrar and Paying Agent ........................................................................................................ 44   SECTION 2.4. Paying Agent to Hold Money in Trust ....................................................................................... 44   SECTION 2.5. Holder Lists ................................................................................................................................ 44   SECTION 2.6. Transfer and Exchange. .............................................................................................................. 44   SECTION 2.7. Form of Certificate to be Delivered upon Termination of Restricted Period ............................. 48   SECTION 2.8. Form of Certificate to be Delivered in Connection with Transfers to IAIs ................................ 49   SECTION 2.9. Form of Certificate to be Delivered in Connection with Transfers Pursuant to   Regulation S .......................................................................................................................... 50   SECTION 2.10. Form of Certificate to be Delivered in Connection with Transfers to AIs ................................. 52   SECTION 2.11. Mutilated, Destroyed, Lost or Stolen Notes ............................................................................... 53   SECTION 2.12. Outstanding Notes ...................................................................................................................... 54   SECTION 2.13. Temporary Notes ........................................................................................................................ 54   SECTION 2.14. Cancellation ................................................................................................................................ 54   SECTION 2.15. Payment of Interest; Defaulted Interest ...................................................................................... 55   SECTION 2.16. CUSIP and ISIN Numbers. ........................................................................................................ 55   ARTICLE III      COVENANTS   SECTION 3.1. Payment of Notes ....................................................................................................................... 56   SECTION 3.2. Limitation on Indebtedness. ....................................................................................................... 56   SECTION 3.3. Limitation on Restricted Payments. ........................................................................................... 60   SECTION 3.4. Limitation on Restrictions on Distributions from Restricted Subsidiaries ................................. 65   SECTION 3.5. Limitation on Sales of Assets and Subsidiary Stock .................................................................. 66   SECTION 3.6. Limitation on Liens .................................................................................................................... 69   SECTION 3.7. Limitation on Guarantees ........................................................................................................... 70   SECTION 3.8. Limitation on Affiliate Transactions .......................................................................................... 70   SECTION 3.9. Change of Control ...................................................................................................................... 72   SECTION 3.10. Reports ....................................................................................................................................... 74   SECTION 3.11. Future Guarantors ....................................................................................................................... 76   SECTION 3.12. Maintenance of Office or Agency .............................................................................................. 77   SECTION 3.13. Corporate Existence ................................................................................................................... 77   SECTION 3.14. Payment of Taxes ....................................................................................................................... 77   SECTION 3.15. [Reserved] .................................................................................................................................. 77   SECTION 3.16. Compliance Certificate ............................................................................................................... 77   SECTION 3.17. Further Instruments and Acts ..................................................................................................... 77   SECTION 3.18. Conduct of Business ................................................................................................................... 78   SECTION 3.19. Statement by Officers as to Default............................................................................................ 78     





 







Page   -iii-                SECTION 3.20. Designation of Restricted and Unrestricted Subsidiaries ........................................................... 78   SECTION 3.21. Suspension of Certain Covenants on Achievement of Investment Grade   Status ..................................................................................................................................... 78   SECTION 3.22. Limitation on Activities of License Subsidiaries ....................................................................... 79   ARTICLE IV      SUCCESSOR COMPANY; Successor Person   SECTION 4.1. Merger and Consolidation .......................................................................................................... 79   ARTICLE V      REDEMPTION OF SECURITIES   SECTION 5.1. Notices to Trustee....................................................................................................................... 80   SECTION 5.2. Selection of Notes to Be Redeemed or Purchased ..................................................................... 81   SECTION 5.3. Notice of Redemption ................................................................................................................ 81   SECTION 5.4. [Reserved] .................................................................................................................................. 82   SECTION 5.5. Deposit of Redemption or Purchase Price .................................................................................. 82   SECTION 5.6. Notes Redeemed or Purchased in Part........................................................................................ 82   SECTION 5.7. Optional Redemption ................................................................................................................. 83   SECTION 5.8. Mandatory Redemption .............................................................................................................. 84   ARTICLE VI      DEFAULTS AND REMEDIES   SECTION 6.1. Events of Default ........................................................................................................................ 84   SECTION 6.2. Acceleration ............................................................................................................................... 86   SECTION 6.3. Other Remedies .......................................................................................................................... 86   SECTION 6.4. Waiver of Past Defaults .............................................................................................................. 86   SECTION 6.5. Control by Majority .................................................................................................................... 87   SECTION 6.6. Limitation on Suits ..................................................................................................................... 87   SECTION 6.7. Rights of Holders to Receive Payment ....................................................................................... 87   SECTION 6.8. Collection Suit by Trustee .......................................................................................................... 87   SECTION 6.9. Trustee May File Proofs of Claim .............................................................................................. 87   SECTION 6.10. Priorities ..................................................................................................................................... 88   SECTION 6.11. Undertaking for Costs ................................................................................................................ 88   ARTICLE VII      TRUSTEE   SECTION 7.1. Duties of Trustee ........................................................................................................................ 88   SECTION 7.2. Rights of Trustee ........................................................................................................................ 89   SECTION 7.3. Individual Rights of Trustee ....................................................................................................... 90   SECTION 7.4. Trustee’s Disclaimer .................................................................................................................. 91   SECTION 7.5. Notice of Defaults ...................................................................................................................... 91   SECTION 7.6. [Reserved] .................................................................................................................................. 91   SECTION 7.7. Compensation and Indemnity ..................................................................................................... 91   SECTION 7.8. Replacement of Trustee .............................................................................................................. 92   SECTION 7.9. Successor Trustee by Merger ..................................................................................................... 92   SECTION 7.10. Eligibility; Disqualification ........................................................................................................ 92   SECTION 7.11. [Reserved] .................................................................................................................................. 92     





 







Page   -iv-                SECTION 7.12. Trustee’s Application for Instruction from the Company .......................................................... 93   ARTICLE VIII      LEGAL DEFEASANCE AND COVENANT DEFEASANCE   SECTION 8.1. Option to Effect Legal Defeasance or Covenant Defeasance; Defeasance ................................ 93   SECTION 8.2. Legal Defeasance and Discharge ............................................................................................... 93   SECTION 8.3. Covenant Defeasance ................................................................................................................. 93   SECTION 8.4. Conditions to Legal or Covenant Defeasance ............................................................................ 94   SECTION 8.5. Deposited Money and U.S. Government Obligations to be Held in Trust;   Other Miscellaneous Provisions ............................................................................................ 95   SECTION 8.6. Repayment to the Company ....................................................................................................... 95   SECTION 8.7. Reinstatement ............................................................................................................................. 95   ARTICLE IX      AMENDMENTS   SECTION 9.1. Without Consent of Holders ....................................................................................................... 96   SECTION 9.2. With Consent of Holders ............................................................................................................ 97   SECTION 9.3. Compliance with this Indenture ................................................................................................. 98   SECTION 9.4. Revocation and Effect of Consents and Waivers ....................................................................... 98   SECTION 9.5. Notation on or Exchange of Notes ............................................................................................. 98   SECTION 9.6. Trustee to Sign Amendments ..................................................................................................... 98   ARTICLE X      GUARANTEE   SECTION 10.1. Guarantee ................................................................................................................................... 98   SECTION 10.2. Limitation on Liability; Termination, Release and Discharge. ................................................ 100   SECTION 10.3. Right of Contribution ............................................................................................................... 101   SECTION 10.4. No Subrogation ........................................................................................................................ 101   ARTICLE XI      SATISFACTION AND DISCHARGE   SECTION 11.1. Satisfaction and Discharge ....................................................................................................... 101   SECTION 11.2. Application of Trust Money ..................................................................................................... 102   ARTICLE XII      MISCELLANEOUS   SECTION 12.1. Notices ..................................................................................................................................... 102   SECTION 12.2. Certificate and Opinion as to Conditions Precedent ................................................................. 103   SECTION 12.3. Statements Required in Certificate or Opinion ......................................................................... 103   SECTION 12.4. When Notes Disregarded.......................................................................................................... 104   SECTION 12.5. Rules by Trustee, Paying Agent and Registrar ......................................................................... 104   SECTION 12.6. Legal Holidays ......................................................................................................................... 104   SECTION 12.7. Governing Law ......................................................................................................................... 104   SECTION 12.8. Jurisdiction ............................................................................................................................... 104   SECTION 12.9. Waivers of Jury Trial ................................................................................................................ 104     





 







Page   -v-                SECTION 12.10. USA PATRIOT Act ................................................................................................................. 104   SECTION 12.11. No Recourse Against Others .................................................................................................... 105   SECTION 12.12. Successors ................................................................................................................................ 105   SECTION 12.13. Multiple Originals .................................................................................................................... 105   SECTION 12.14. Table of Contents; Headings .................................................................................................... 105   SECTION 12.15. Force Majeure .......................................................................................................................... 105   SECTION 12.16. Severability .............................................................................................................................. 105         EXHIBIT A Form of Global Restricted Note   EXHIBIT B Form of Supplemental Indenture        





 







   3997236v4   INDENTURE dated as of April 1, 2015, among TOWNSQUARE MEDIA, INC. (the “Company”) and   WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, as trustee (the “Trustee”).   W I T N E S S E T H   WHEREAS, the Company has duly authorized the execution and delivery of this Indenture to provide for   the issuance of (i) its 6.500% Senior Notes due 2023 issued on the date hereof (the “Initial Notes”) and (ii) any addi-   tional Notes (“Additional Notes” and, together with the Initial Notes, the “Notes”) that may be issued after the Issue   Date.   WHEREAS, the Company has duly authorized the execution and delivery of this Indenture;   WHEREAS, all things necessary (i) to make the Notes, when executed and duly issued by the Company   and authenticated and delivered hereunder, the valid obligations of the Company, and (ii) to make this Indenture a   valid agreement of the Company have been done; and   NOW, THEREFORE, in consideration of the premises and the purchase of the Notes by the Holders there-   of, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders, as follows:   ARTICLE I      DEFINITIONS AND INCORPORATION BY REFERENCE   SECTION 1.1. Definitions.   “Acquired Indebtedness” means Indebtedness (1) of a Person or any of its Subsidiaries existing at the time   such Person becomes a Restricted Subsidiary, (2) assumed in connection with the acquisition of assets from such   Person, in each case whether or not Incurred by such Person in connection with such Person becoming a Restricted   Subsidiary of the Company or such acquisition or (3) of a Person at the time such Person merges or amalgamates   with or into or consolidates or otherwise combines with the Company or any Restricted Subsidiary.  Acquired In-   debtedness shall be deemed to have been Incurred, with respect to clause (1) of the preceding sentence, on the date   such Person becomes a Restricted Subsidiary and, with respect to clause (2) of the preceding sentence, on the date of   consummation of such acquisition of assets and, with respect to clause (3) of the preceding sentence, on the date of   the relevant merger, amalgamation, consolidation or other combination.   “Additional Assets” means:   (1) any property or assets (other than Capital Stock) used or to be used by the Company, a   Restricted Subsidiary or otherwise useful in a Similar Business (it being understood that capital expendi-   tures on property or assets already used in a Similar Business or to replace any property or assets that are   the subject of such Asset Disposition shall be deemed an investment in Additional Assets);   (2) the Capital Stock of a Person that is engaged in a Similar Business and becomes a Re-   stricted Subsidiary as a result of the acquisition of such Capital Stock by the Company or a Restricted Sub-   sidiary of the Company; or   (3) Capital Stock constituting a minority interest in any Person that at such time is a Restrict-   ed Subsidiary of the Company.   “Affiliate” of any specified Person means any other Person, directly or indirectly, controlling or controlled   by or under direct or indirect common control with such specified Person.  For the purposes of this definition, “con-   trol” 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.     





 







   -2-                “AI” means an “accredited investor” as described in Rule 501(a)(4) under the Securities Act.   “Applicable Premium” means the greater of (A) 1.0% of the principal amount of such Note and (B) on any   redemption date, the excess (to the extent positive) of:   (a) the present value at such redemption date of (i) the redemption price of such Note at   April 1, 2018 (such redemption price (expressed in percentage of principal amount) being set forth in the   table under Section 5.7(d) (excluding accrued but unpaid interest, if any)), plus (ii) all required interest   payments due on such Note to and including such date set forth in clause (i) (excluding accrued but unpaid   interest, if any), computed upon the redemption date using a discount rate equal to the Applicable Treasury   Rate at such redemption date plus 50 basis points; over   (b) the outstanding principal amount of such Note;   in each case, as calculated by the Company or on behalf of the Company by such Person as the Company shall des-   ignate.  The Trustee shall have no duty to calculate or verify the calculations of the Applicable Premium.   “Applicable Treasury Rate” means the yield to maturity at the time of computation of United States Treas-   ury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical   Release H.15 (519) which has become publicly available at least two Business Days (but not more than five Busi-   ness Days) prior to the redemption date (or, if such statistical release is not so published or available, any publicly   available source of similar market data selected by the Company in good faith)) most nearly equal to the period from   the redemption date to April 1, 2018; provided, however, that if the period from the redemption date to April 1, 2018   is not equal to the constant maturity of a United States Treasury security for which a weekly average yield is given,   the Applicable 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 the redemption date to such applicable date is less than one year, the weekly average yield on   actively traded United States Treasury securities adjusted to a constant maturity of one year shall be used.   “Asset Disposition” means:   (a) the sale, conveyance, transfer or other disposition, whether in a single transaction or a se-   ries of related transactions, of property or assets (including by way of a Sale and Leaseback Transaction) of   the Company or any of its Restricted Subsidiaries (in each case other than Capital Stock of the Company)   (each referred to in this definition as a “disposition”); or   (b) the issuance or sale of Capital Stock of any Restricted Subsidiary (other than Preferred   Stock or Disqualified Stock of Restricted Subsidiaries issued in compliance with Section 3.2 hereof or di-   rectors’ qualifying shares and shares issued to foreign nationals as required under applicable law), whether   in a single transaction or a series of related transactions;   in each case, other than:   (1) a disposition by a Restricted Subsidiary to the Company or by the Company or a Re-   stricted Subsidiary to a Restricted Subsidiary;   (2) a disposition of cash, Cash Equivalents or Investment Grade Securities;   (3) a disposition of inventory or other assets in the ordinary course of business or consistent   with past practice (including allowing any registrations or any applications for registrations of any intellec-   tual property rights to lapse or go abandoned in the ordinary course of business or consistent with past prac-   tice);     





 







   -3-                (4) a disposition of obsolete, surplus or worn out property, equipment or other assets or prop-   erty, equipment or other assets that are no longer used or useful in the conduct of the business of the Com-   pany and its Restricted Subsidiaries;   (5) transactions permitted under Section 4.1 hereof or a transaction that constitutes a Change   of Control;   (6) an issuance of Capital Stock by a Restricted Subsidiary to the Company or to another Re-   stricted Subsidiary or as part of or pursuant to an equity incentive or compensation plan approved by the   Board of Directors;   (7) any dispositions of Capital Stock, properties or assets in a single transaction or series of   related transactions with a fair market value (as determined in good faith by the Company) of less than   $10.0 million;   (8) any Restricted Payment that is permitted to be made, and is made, under Section 3.3 and   the making of any Permitted Payment or Permitted Investment or, solely for purposes of Section 3.5(a)(3),   asset sales, the proceeds of which are used to make such Restricted Payments or Permitted Investments;   (9) dispositions in connection with Permitted Liens;   (10) dispositions of receivables in connection with the compromise, settlement or collection   thereof in the ordinary course of business or consistent with past practice or in bankruptcy or similar pro-   ceedings and exclusive of factoring or similar arrangements;   (11) the licensing or sub-licensing of intellectual property or other general intangibles and li-   censes, sub-licenses, leases or subleases of other property, in each case, in the ordinary course of business   or consistent with past practice;   (12) foreclosure, condemnation or any similar action with respect to any property or other as-   sets;   (13) the sale or discount (with or without recourse, and on customary or commercially reason-   able terms and for credit management purposes) of accounts receivable or notes receivable arising in the   ordinary course of business or consistent with past practice, or the conversion or exchange of accounts re-   ceivable for notes receivable;   (14) any disposition of Capital Stock, Indebtedness or other securities of an Unrestricted Sub-   sidiary;   (15) any disposition of Capital Stock of a Restricted Subsidiary pursuant to an agreement or   other obligation with or to a Person (other than the Company or a Restricted Subsidiary) from whom such   Restricted Subsidiary was acquired, or from whom such Restricted Subsidiary acquired its business and as-   sets (having been newly formed in connection with such acquisition), made as part of such acquisition and   in each case comprising all or a portion of the consideration in respect of such sale or acquisition;   (16) (i) dispositions of property to the extent that such property is exchanged for credit against   the purchase price of similar replacement property that is promptly purchased, (ii) dispositions of property   to the extent that the proceeds of such disposition are promptly applied to the purchase price of such re-   placement property (which replacement property is actually promptly purchased) and (iii) to the extent al-   lowable under Section 1031 of the Code, any exchange of like property (excluding any boot thereon) for   use in a Similar Business;   (17) any financing transaction with respect to property constructed, acquired, replaced, re-   paired or improved (including any reconstruction, refurbishment, renovation and/or development of real     





 







   -4-                property) by the Company or any Restricted Subsidiary after the Issue Date, including Sale and Leaseback   Transactions and asset securitizations, permitted by this Indenture;   (18) dispositions of Investments in joint ventures or similar entities to the extent required by,   or made pursuant to customary buy/sell arrangements between, the parties to such joint venture set forth in   joint venture arrangements and similar binding arrangements;   (19) any surrender or waiver of contract rights or the settlement, release or surrender of con-   tract, tort or other claims of any kind;   (20) the unwinding of any Hedging Obligations pursuant to its terms;   (21) dispositions of non-core assets (a) acquired in connection with any acquisition permitted   under this Indenture or any Permitted Investment or (b) with a fair market value not in excess of $20.0 mil-   lion in the aggregate when taken together with all other dispositions pursuant to this clause (b); and   (22) any swap of assets in exchange for services or other assets in the ordinary course of busi-   ness of comparable or greater value or usefulness to the business as determined in good faith by the Com-   pany.   “Associate” means (i) any Person engaged in a Similar Business of which the Company or its Restricted   Subsidiaries are the legal and beneficial owners of between 20% and 50% of all outstanding Voting Stock and   (ii) any joint venture entered into by the Company or any Restricted Subsidiary of the Company.   “Bankruptcy Law” means Title 11 of the United States Code or similar federal or state law for the relief of   debtors.   “Board of Directors” means (1) with respect to the Company or any corporation, the board of directors or   managers, as applicable, of the corporation, or any duly authorized committee thereof; (2) with respect to any part-   nership, the board of directors or other governing body of the general partner of the partnership or any duly author-   ized committee thereof; and (3) with respect to any other Person, the board or any duly authorized committee of   such Person serving a similar function.  Whenever any provision requires any action or determination to be made by,   or any approval of, a Board of Directors, such action, determination or approval shall be deemed to have been taken   or made if approved by a majority of the directors on any such Board of Directors (whether or not such action or   approval is taken as part of a formal board meeting or as a formal board approval).   “Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant Secretary of a   Person to have been duly adopted by the Board of Directors of such Person and to be in full force and effect on the   date of such certification, and delivered to the Trustee.   “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 the jurisdiction of the place of payment are authorized or required by law   to close.   “Capital Stock” of any Person means any and all shares of, rights to purchase, warrants, options or deposi-   tary receipts for, or other equivalents of or partnership or other interests in (however designated), equity of such Per-   son, including any Preferred Stock, but excluding any debt securities convertible into such equity.   “Capitalized Lease Obligations” means an obligation that is required to be classified and accounted for as a   capitalized lease for financial reporting purposes on the basis of GAAP.  The amount of Indebtedness represented by   such obligation will be the capitalized amount of such obligation at the time any determination thereof is to be made   as determined on the basis of GAAP, and the Stated Maturity thereof will be the date of the last payment of rent or   any other amount due under such lease prior to the first date such lease may be terminated without penalty.   “Cash Equivalents” means:     





 







   -5-                (1) (a) United States dollars, Canadian dollars, Euro, or any national currency of any member   state of the European Union; or (b) any other foreign currency held by the Company and the Restricted   Subsidiaries in the ordinary course of business;   (2) securities issued or directly and fully Guaranteed or insured by the United States or Ca-   nadian governments, a member state of the European Union or, in each case, or any agency or instrumen-   tality of the foregoing (provided that the full faith and credit obligation of such country or such member   state is pledged in support thereof), having maturities of not more than two years from the date of acquisi-   tion;   (3) certificates of deposit, time deposits, Eurodollar time deposits, overnight bank deposits or   bankers’ acceptances having maturities of not more than one year from the date of acquisition thereof is-   sued by any lender or by any bank or trust company (a) whose commercial paper is rated at least “A-2” or   the equivalent thereof by S&P or at least “P-2” or the equivalent thereof by Moody’s (or if at the time nei-   ther is issuing comparable ratings, then a comparable rating of another Nationally Recognized Statistical   Rating Organization) or (b) (in the event that the bank or trust company does not have commercial paper   which is rated) having combined capital and surplus in excess of $100.0 million;   (4) repurchase obligations for underlying securities of the types described in clauses (2), (3)   and (7) entered into with any bank meeting the qualifications specified in clause (3) above;   (5) securities with maturities of one year or less from the date of acquisition backed by   standby letters of credit issued by any Person referenced in clause (3) above;   (6) commercial paper rated at least (A) “A-1” or higher by S&P or “P-1” or higher by   Moody’s (or, if at the time, neither is issuing comparable ratings, then a comparable rating of another Na-   tionally Recognized Statistical Rating Organization selected by the Company) maturing within two years   after the date of creation thereof or (B) “A-2” or higher by S&P or “P-2” or higher by Moody’s (or, if at the   time, neither is issuing comparable ratings, then a comparable rating of another Nationally Recognized Sta-   tistical Rating Organization selected by the Company) maturing within one year after the date of creation   thereof, or, in each case, if no rating is available in respect of the commercial paper, the Company of which   has an equivalent rating in respect of its long-term debt;   (7) marketable short-term money market and similar securities having a rating of at least “P-   2” or “A-2” from either S&P or Moody’s, respectively (or, if at the time, neither is issuing comparable rat-   ings, then a comparable rating of another Nationally Recognized Statistical Rating Organization selected by   the Company) and in each case maturing within 24 months after the date of creation or acquisition thereof;   (8) readily marketable direct obligations issued by any state, province, commonwealth or ter-   ritory of the United States of America or Canada or any political subdivision, taxing authority or public in-   strumentality thereof, in each case, having one of the two highest ratings categories by S&P or Moody’s   (or, if at the time, neither is issuing comparable ratings, then a comparable rating of another Nationally   Recognized Statistical Rating Organization selected by the Company) with maturities of not more than two   years from the date of acquisition;   (9) readily marketable direct obligations issued by any foreign government or any political   subdivision, taxing authority or public instrumentality thereof, in each case, having one of the two highest   ratings categories obtainable by S&P or Moody’s (or, if at the time, neither is issuing comparable ratings,   then a comparable rating of another Nationally Recognized Statistical Rating Organization selected by the   Company) with maturities of not more than two years from the date of acquisition;   (10) Investments with average maturities of 12 months or less from the date of acquisition in   money market funds rated within the three highest ratings categories by S&P or Moody’s (or, if at the time,   neither is issuing comparable ratings, then a comparable rating of another Nationally Recognized Statistical   Rating Organization selected by the Company);     





 







   -6-                (11) with respect to any Foreign Subsidiary:  (i) obligations of the national government of the   country in which such Foreign Subsidiary maintains its chief executive office and principal place of busi-   ness provided such country is a member of the Organization for Economic Cooperation and Development,   in each case maturing within one year after the date of investment therein, (ii) certificates of deposit of,   bankers’ acceptance of, or time deposits with, any commercial bank which is organized and existing under   the laws of the country in which such Foreign Subsidiary maintains its chief executive office and principal   place of business provided such country is a member of the Organization for Economic Cooperation and   Development, and whose short-term commercial paper rating from S&P is at least “A-1” or the equivalent   thereof or from Moody’s is at least “P-1” or the equivalent thereof (any such bank being an “Approved   Foreign Bank”), and in each case with maturities of not more than 270 days from the date of acquisition   and (iii) the equivalent of demand deposit accounts which are maintained with an Approved Foreign Bank;   (12) Indebtedness or Preferred Stock issued by Persons with a rating of “BBB-” or higher   from S&P or “Baa3” or higher from Moody’s (or, if at the time, neither is issuing comparable ratings, then   a comparable rating of another Nationally Recognized Statistical Rating Organization selected by the Com-   pany) with maturities of 24 months or less from the date of acquisition;   (13) bills of exchange issued in the United States, Canada, a member state of the European   Union, or Japan eligible for rediscount at the relevant central bank and accepted by a bank (or any demate-   rialized equivalent);   (14) interests in any investment company, money market or enhanced high yield fund or other   investment fund which invests 90% or more of its assets in instruments of the types specified in clauses (1)   through (13) above; and   (15) for purposes of clause (2) of the definition of “Asset Disposition,” any marketable securi-   ties portfolio owned by the Company and its subsidiaries on the Issue Date.   In the case of Investments by any Foreign Subsidiary that is a Restricted Subsidiary or Investments made in a coun-   try outside the United States of America, Cash Equivalents shall also include (a) investments of the type and maturi-   ty described in clauses (1) through (9) and clauses (11) through (14) above of foreign obligors, which Investments or   obligors (or the parents of such obligors) have ratings described in such clauses or equivalent ratings from compara-   ble foreign rating agencies and (b) other short-term investments utilized by Foreign Subsidiaries that are Restricted   Subsidiaries in accordance with normal investment practices for cash management in investments analogous to the   foregoing investments in clauses (1) through (14) and in this paragraph.  Notwithstanding the foregoing, Cash   Equivalents shall include amounts denominated in currencies other than those set forth in clause (1) above, provided   that such amounts are converted into any currency listed in clause (1) as promptly as practicable and in any event   within 10 Business Days following the receipt of such amounts.  For the avoidance of doubt, any items identified as   Cash Equivalents under this definition (other than clause (15) above) will be deemed to be Cash Equivalents for all   purposes under this Indenture regardless of the treatment of such items under GAAP.   “Cash Management Services” means any of the following to the extent not constituting a line of credit   (other than an overnight draft facility that is not in default): automated clearing house transfers of funds, treasury,   depository, credit or debit card, purchasing card, and/or cash management services, including controlled disburse-   ment services, overdraft facilities, foreign exchange facilities, deposit and other accounts and merchant services.   “Change of Control” means:   (1) the Company becomes aware of (by way of a report or any other filing pursuant to Sec-   tion 13(d) of the Exchange Act, proxy, vote, written notice or otherwise) any “person” or “group” of related   persons (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act as in effect on the Issue   Date), other than one or more Permitted Holders, is or becomes the “beneficial owner” (as defined in   Rules 13d-3 and 13d-5 under the Exchange Act as in effect on the Issue Date), directly or indirectly, of   more than 50% of the total voting power of the Voting Stock of the Company; or     





 







   -7-                (2) the sale, lease, transfer, conveyance or other disposition (other than by way of merger,   amalgamation, consolidation or other business combination transaction), in one or a series of related trans-   actions, of all or substantially all of the assets of the Company and its Restricted Subsidiaries taken as a   whole to a Person, other than a Restricted Subsidiary or one or more Permitted Holders.   “Code” means the United States Internal Revenue Code of 1986, as amended.   “Consolidated Depreciation and Amortization Expense” means, with respect to any Person for any period,   the total amount of depreciation and amortization expense, including amortization or write-off of (i) intangibles and   non-cash organization costs and (ii) deferred financing fees or costs, capitalized expenditures, customer acquisition   costs and incentive payments, conversion costs and contract acquisition costs, the amortization of original issue dis-   count resulting from the issuance of Indebtedness at less than par and amortization of favorable or unfavorable lease   assets or liabilities, of such Person and its Restricted Subsidiaries for such period on a consolidated basis and other-   wise determined in accordance with GAAP and any write-down of assets or asset value carried on the balance sheet.   “Consolidated EBITDA” means, with respect to any Person for any period, the Consolidated Net Income of   such Person for such period:   (1) increased (without duplication) by:   (a) provision for taxes based on income or profits or capital, including, without   limitation, federal, state, provincial, local, foreign, unitary, franchise and similar taxes and foreign   withholding and similar taxes of such Person paid or accrued during such period, including any   penalties and interest relating to any tax examinations, deducted (and not added back) in compu-   ting Consolidated Net Income; plus   (b) Fixed Charges of such Person for such period (including (x) net losses on any   Hedging Obligations or other derivative instruments entered into for the purpose of hedging inter-   est rate, currency or commodities risk, (y) bank fees and (z) costs of surety bonds in connection   with financing activities, plus amounts excluded from the definition of “Consolidated Interest Ex-   pense” pursuant to clauses (t) through (z) in clause (1) thereof), to the extent the same were de-   ducted (and not added back) in calculating such Consolidated Net Income; plus   (c) Consolidated Depreciation and Amortization Expense of such Person for such   period to the extent the same were deducted (and not added back) in computing Consolidated Net   Income; plus   (d) any (x) Transaction Expenses and (y) fees, costs, expenses or charges (other   than Consolidated Depreciation and Amortization Expense) related to any actual, proposed or con-   templated Equity Offering, Permitted Investment, acquisition, disposition, recapitalization or the   incurrence of Indebtedness permitted to be incurred by this Indenture (including a refinancing   thereof) (whether or not successful), including (i) such fees, expenses or charges related to the of-   fering of the Notes, the Credit Agreement and any other Credit Facilities, and (ii) any amendment,   waiver or other modification of the Notes, the Credit Agreement, any other Credit Facilities, any   other Indebtedness permitted to be Incurred under this Indenture or any Equity Offering, in each   case, whether or not consummated, to the extent the same were deducted (and not added back) in   computing Consolidated Net Income; plus   (e) (i) the amount of any restructuring charge, reserve, integration cost or other   business optimization expense or cost (including charges directly related to the implementation of   cost-savings initiatives) that is deducted (and not added back) in such period in computing Consol-   idated Net Income, including any one-time costs incurred in connection with acquisitions or di-   vestitures after the Issue Date, including, without limitation, those related to any severance, reten-   tion, signing bonuses, relocation, recruiting and other employee related costs, future lease com-   mitments and costs related to the opening and closure and/or consolidation of facilities and to ex-    





 







   -8-                isting lines of business and (ii) fees, costs and expenses associated with acquisition related litiga-   tion and settlements thereof; plus   (f) any other non-cash charges, write-downs, expenses, losses or items reducing   Consolidated Net Income for such period including any impairment charges or the impact of pur-   chase accounting, (excluding any such non-cash charge, write-down or item to the extent it repre-   sents an accrual or reserve for a cash expenditure for a future period); plus   (g) the amount of management, monitoring, advisory, consulting, refinancing, sub-   sequent transaction and exit fees (including termination fees) and related indemnities and expenses   paid or accrued in such period to Oaktree to the extent permitted under Section 3.8 hereof; plus   (h) the amount of “run-rate” cost savings, operating expense reductions, other oper-   ating improvements and initiatives and synergies projected by the Company in good faith to be   reasonably anticipated to be realizable (calculated on a pro forma basis as though such cost sav-   ings, operating expense reductions, other operating improvements and initiatives and synergies   had been realized on the first day of such period), net of the amount of actual benefits realized dur-   ing such period from such actions; provided that (x) such cost savings are reasonably identifiable,   reasonably attributable to the actions specified and reasonably anticipated to result from such ac-   tions (in the good faith determination of the Company) and (y) such actions have been taken or are   to be taken within 18 months; plus   (i) any costs or expense incurred by the Company or a Restricted Subsidiary pursu-   ant to any management equity plan or stock option plan or any other management or employee   benefit plan or agreement or any stock subscription or shareholder agreement, to the extent that   such cost or expenses are funded with cash proceeds contributed to the capital of the Company or   net cash proceeds of an issuance of Capital Stock (other than Disqualified Stock) of the Company   solely to the extent that such net cash proceeds are excluded from the calculation set forth in Sec-   tion 3.3(a)(3) hereof; plus   (j) cash receipts (or any netting arrangements resulting in reduced cash expendi-   tures) not representing Consolidated EBITDA or Consolidated Net Income in any period to the ex-   tent non-cash gains relating to such income were deducted in the calculation of Consolidated   EBITDA pursuant to clause (2) below for any previous period and not added back; plus   (k) any net loss included in the Consolidated Net Income attributable to non-   controlling interests pursuant to the application of Accounting Standards Codification Topic 810-   10-45 (“Topic 810”); plus   (l) realized foreign exchange losses resulting from the impact of foreign currency   changes on the valuation of assets or liabilities on the balance sheet of the Company and its Re-   stricted Subsidiaries; plus   (m) net realized losses from Hedging Obligations or embedded derivatives that re-   quire similar accounting treatment and the application of Accounting Standard Codification Topic   815 and related pronouncements; plus   (n) letter of credit fees.   (2) decreased (without duplication) by:  (a) non-cash gains increasing Consolidated Net In-   come of such Person for such period, excluding any non-cash gains to the extent they represent the reversal   of an accrual or reserve for a potential cash item that reduced Consolidated EBITDA in any prior period   and any non-cash gains with respect to cash actually received in a prior period so long as such cash did not   increase Consolidated EBITDA in such prior period; plus (b) realized foreign exchange income or gains re-   sulting from the impact of foreign currency changes on the valuation of assets or liabilities on the balance     





 







   -9-                sheet of the Company and its Restricted Subsidiaries; plus (c) any net realized income or gains from Hedg-   ing Obligations or embedded derivatives that require similar accounting treatment and the application of   Accounting Standards Codification Topic 815 and related pronouncements, plus (d) any net income includ-   ed in the Consolidated Net Income attributable to non-controlling interests pursuant to the application of   Topic 810; and   (3) increased or decreased (without duplication) by, as applicable, any adjustments resulting   from the application of Accounting Standards Codification Topic 460 or any comparable regulation.   “Consolidated Interest Expense” means, with respect to any Person for any period, without duplication, the   sum of:   (1) consolidated interest expense of such Person and its Restricted Subsidiaries for such peri-   od, to the extent such expense was deducted (and not added back) in computing Consolidated Net Income   (including (a) amortization of original issue discount or premium resulting from the issuance of Indebted-   ness at less than par, (b) all commissions, discounts and other fees and charges owed with respect to letters   of credit or bankers acceptances, (c) non-cash interest payments (but excluding any non-cash interest ex-   pense attributable to the movement in the mark to market valuation of any Hedging Obligations or other de-   rivative instruments pursuant to GAAP), (d) the interest component of Capitalized Lease Obligations, and   (e) net payments, if any, pursuant to interest rate Hedging Obligations with respect to Indebtedness, and ex-   cluding (t) penalties and interest relating to taxes, (u) any additional cash interest owing pursuant to any   registration rights agreement, (v) accretion or accrual of discounted liabilities other than Indebtedness,   (w) any expense resulting from the discounting of any Indebtedness in connection with the application of   purchase accounting in connection with any acquisition, (x) amortization of deferred financing fees, debt   issuance costs, commissions, fees and expenses, (y) any expensing of bridge, commitment and other fi-   nancing fees, and (z) interest with respect to Indebtedness of any parent of such Person appearing upon the   balance sheet of such Person solely by reason of push-down accounting under GAAP); plus   (2) consolidated capitalized interest of such Person and its Restricted Subsidiaries for such   period, whether paid or accrued; less   (3) interest income for such period.   For purposes of this definition, interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest   rate reasonably determined by such Person to be the rate of interest implicit in such Capitalized Lease Obligation in   accordance with GAAP.   “Consolidated Net Income” means, with respect to any Person for any period, the net income (loss) of such   Person and its Restricted Subsidiaries for such period determined on a consolidated basis on the basis of GAAP;   provided, however, that there will not be included in such Consolidated Net Income:   (1) any net income (loss) of any Person if such Person is not a Restricted Subsidiary, except   that the Company’s equity in the net income of any such Person for such period will be included in such   Consolidated Net Income up to the aggregate amount of cash or Cash Equivalents actually distributed or   that (as reasonably determined by an Officer of the Company) could have been distributed by such Person   during such period to the Company or a Restricted Subsidiary as a dividend or other distribution or return   on investment (subject, in the case of a dividend or other distribution or return on investment to a Restricted   Subsidiary, to the limitations contained in clause (2) below);   (2) solely for the purpose of determining the amount available for Restricted Payments under   Section 3.3(a)(iii)(B) hereof, any net income (loss) of any Restricted Subsidiary (other than the Company   and the Guarantors) if such Subsidiary is subject to restrictions, directly or indirectly, on the payment of   dividends or the making of distributions by such Restricted Subsidiary, directly or indirectly, to the Com-   pany or a Guarantor by operation of the terms of such Restricted Subsidiary’s articles, charter or any   agreement, instrument, judgment, decree, order, statute or governmental rule or regulation applicable to     





 







   -10-                such Restricted Subsidiary or its shareholders (other than (a) restrictions that have been waived or other-   wise released, (b) restrictions pursuant to the Credit Agreement, the Notes, or this Indenture, and (c) re-   strictions specified in Section 3.4(b)(13)(i)), except that the Company’s equity in the net income of any   such Restricted Subsidiary for such period will be included in such Consolidated Net Income up to the ag-   gregate amount of cash or Cash Equivalents actually distributed or that could have been distributed by such   Restricted Subsidiary during such period to the Company or another Restricted Subsidiary as a dividend or   other distribution (subject, in the case of a dividend to another Restricted Subsidiary, to the limitation con-   tained in this clause);   (3) any gain (or loss), together with any related provisions for taxes on any such gain (or the   tax effect of any such loss), realized upon the sale or other disposition of any asset (including pursuant to   any Sale and Leaseback Transaction) or disposed operations of the Company or any Restricted Subsidiaries   which is not sold or otherwise disposed of in the ordinary course of business (as determined in good faith   by an Officer or the Board of Directors of the Company);   (4) any extraordinary, exceptional, unusual or nonrecurring gain, loss, charge or expense or   any charges, expenses or reserves in respect of any restructuring, redundancy or severance expense;   (5) the cumulative effect of a change in accounting principles, including any impact resulting   from an election by the Company to apply IFRS at any time following the Issue Date;   (6) any (i) non-cash compensation charge or expense arising from any grant of stock, stock   options or other equity based awards and any non-cash deemed finance charges in respect of any pension   liabilities or other provisions or on the re-valuation of any benefit plan obligation and (ii) income (loss) at-   tributable to deferred compensation plans or trusts;   (7) all deferred financing costs written off and premiums paid or other expenses incurred di-   rectly in connection with any early extinguishment of Indebtedness and any net gain (loss) from any   write-off or forgiveness of Indebtedness;   (8) any unrealized gains or losses in respect of any Hedging Obligations or any ineffective-   ness recognized in earnings related to qualifying hedge transactions or the fair value of changes therein   recognized in earnings for derivatives that do not qualify as hedge transactions, in each case, in respect of   any Hedging Obligations;   (9) any unrealized foreign currency translation or transaction gains or losses in respect of In-   debtedness of any Person denominated in a currency other than the functional currency of such Person and   any unrealized foreign exchange gains or losses relating to translation of assets and liabilities denominated   in foreign currencies;   (10)  any unrealized foreign currency translation or transaction gains or losses in respect of In-   debtedness or other obligations of the Company or any Restricted Subsidiary owing to the Company or any   Restricted Subsidiary;   (11) any purchase accounting effects, including adjustments to inventory, property and   equipment, software and other intangible assets and deferred revenue in component amounts required or   permitted by GAAP and related authoritative pronouncements (including the effects of such adjustments   pushed down to the Company and the Restricted Subsidiaries), as a result of any consummated acquisition,   or the amortization or write-off of any amounts thereof (including any write-off of in process research and   development);   (12) any goodwill or other intangible asset impairment charge or write-off;   (13) any after-tax effect of income (loss) from the early extinguishment or cancellation of In-   debtedness or any Hedging Obligations or other derivative instruments;     





 







   -11-                (14) accruals and reserves that are established or adjusted within twelve (12) months after the   Issue Date that are so required to be established or adjusted as a result of Transactions in accordance with   GAAP;   (15) any net unrealized gains and losses resulting from Hedging Obligations or embedded de-   rivatives that require similar accounting treatment and the application of Accounting Standards Codifica-   tion Topic 815 and related pronouncements;   (16) the amount of any expense to the extent a corresponding amount is received in cash by   the Company and the Restricted Subsidiaries from a Person other than the Company or any Restricted Sub-   sidiaries under any agreement providing for reimbursement of any such expense, provided such reim-   bursement payment has not been included in determining Consolidated Net Income (it being understood   that if the amounts received in cash under any such agreement in any period exceed the amount of expense   in respect of such period, such excess amounts received may be carried forward and applied against ex-   pense in future periods); and   (17) any deferred tax expense associated with tax deductions or net operating losses arising as   a result of the Transactions, or the release of any valuation allowances related to such item.   In addition, to the extent not already included in the Consolidated Net Income of such Person and its Re-   stricted Subsidiaries, notwithstanding anything to the contrary in the foregoing, Consolidated Net Income shall in-   clude (i) any expenses and charges that are reimbursed by indemnification or other reimbursement provisions in   connection with any investment or any sale, conveyance, transfer or other disposition of assets permitted hereunder,   or, so long as the Company has made a determination that there exists reasonable evidence that such amount will in   fact be reimbursed and only to the extent that such amount is (A) not denied by the applicable payor in writing with-   in 180 days and (B) in fact reimbursed within 365 days of the date of such evidence (with a deduction for any   amount so added back to the extent not so reimbursed within 365 days) and (ii) to the extent covered by insurance   (including business interruption insurance) and actually reimbursed, or, so long as the Company has made a deter-   mination that there exists reasonable evidence that such amount will in fact be reimbursed by the insurer and only to   the extent that such amount is (A) not denied by the applicable carrier in writing within 180 days and (B) in fact   reimbursed within 365 days of the date of such evidence (with a deduction for any amount so added back to the ex-   tent not so reimbursed within 365 days), expenses with respect to liability or casualty events or business interrup-   tion.   “Consolidated Secured Leverage” means, the sum of the aggregate outstanding Secured Indebtedness for   borrowed money of the Company and its Restricted Subsidiaries.   “Consolidated Secured Leverage Ratio” means, as of any date of determination, the ratio of   (x) Consolidated Secured Leverage at such date to (y) the aggregate amount of Consolidated EBITDA for the period   of the most recent four consecutive fiscal quarters ending prior to the date of such determination for which internal   consolidated financial statements of the Company are available, in each case with such pro forma adjustments as are   consistent with the pro forma adjustments set forth in the definition of “Leverage  Ratio”; provided that, for the pur-   pose of determining Consolidated Secured Leverage, the aggregate amount of cash and Cash Equivalents of the   Company and its Restricted Subsidiaries shall be determined without giving pro forma effect to the proceeds of In-   debtedness incurred on such date.   “Consolidated Total Indebtedness” means, as at any date of determination, an amount equal to the sum of   (1) the aggregate amount of all outstanding Indebtedness of the Company and its Restricted Subsidiaries on a con-   solidated basis consisting of Indebtedness for borrowed money, Obligations in respect of Capitalized Lease Obliga-   tions and debt obligations evidenced by promissory notes and similar instruments and (2) the aggregate amount of   all outstanding Disqualified Stock of the Company and all Disqualified Stock and Preferred Stock of its Restricted   Subsidiaries on a consolidated basis, with the amount of such Disqualified Stock and Preferred Stock equal to the   greater of their respective voluntary or involuntary liquidation preferences and maximum fixed repurchase prices, in   each case determined on a consolidated basis in accordance with GAAP; provided that Indebtedness of the Compa-   ny and its Restricted Subsidiaries under any revolving credit facility or line of credit as at any date of determination   shall be determined using the Average Quarterly Balance of such Indebtedness for the most recently ended four fis-    





 







   -12-                cal quarters for which internal financial statements are available as of such date of determination (the “Reference   Period”). For purposes hereof, (a) the “maximum fixed repurchase price” of any Disqualified Stock or Preferred   Stock that does not have a fixed repurchase price shall be calculated in accordance with the terms of such Disquali-   fied Stock or Preferred Stock as if such Disqualified Stock or Preferred Stock were purchased on any date on which   Consolidated Total Indebtedness shall be required to be determined pursuant to this Indenture, and if such price is   based upon, or measured by, the fair market value of such Disqualified Stock or Preferred Stock, such fair market   value shall be determined reasonably and in good faith by the Company, (b) “Average Quarterly Balance” means,   with respect to any Indebtedness incurred by the Company or its Restricted Subsidiaries under a revolving facility or   line of credit, the quotient of (x) the sum of each Individual Quarterly Balance for each fiscal quarter ended on or   prior to such date of determination and included in the Reference Period divided by (y) 4, and (c) “Individual Quar-   terly Balance” means, with respect to any Indebtedness incurred by the Company or its Restricted Subsidiaries under   a revolving credit facility or line of credit during any fiscal quarter of the Company, the quotient of (x) the sum of   the aggregate outstanding principal amount of all such Indebtedness at the end of each day of such quarter divided   by (y) the number of days in such fiscal quarter.   “Contingent Obligations” means, with respect to any Person, any obligation of such Person guaranteeing in   any manner, whether directly or indirectly, any operating lease, dividend or other obligation that does not constitute   Indebtedness (“primary obligations”) of any other Person (the “primary obligor”), including any obligation of such   Person, whether or not contingent:   (1) to purchase any such primary obligation or any property constituting direct or indirect se-   curity therefor;   (2) to advance or supply funds:   (a) for the purchase or payment of any such primary obligation; or   (b) to maintain the working capital or equity capital of the primary obligor or oth-   erwise to maintain the net worth or solvency of the primary obligor; or   (3) to purchase property, securities or services primarily for the purpose of assuring the own-   er of any such primary obligation of the ability of the primary obligor to make payment of such primary ob-   ligation against loss in respect thereof.   “Covenant Suspension” means, during any period of time following the issuance of the Notes, that (i) the   Notes have achieved Investment Grade Status, and (ii) no Default or Event of Default has occurred and is continuing   under this Indenture.   “Credit Agreement” means the Credit Agreement to be entered into by and among the Company, the guar-   antors from time to time party thereto, Royal Bank of Canada, as administrative agent and collateral agent, and each   lender from time to time party thereto, together with the related documents thereto (including the revolving loans   thereunder, any letters of credit and reimbursement obligations related thereto, any Guarantees and security docu-   ments), as amended, extended, renewed, restated, refunded, replaced, refinanced, supplemented, modified or other-   wise changed (in whole or in part, and without limitation as to amount, terms, conditions, covenants and other provi-   sions) from time to time, and any one or more agreements (and related documents) governing Indebtedness, includ-   ing indentures, incurred to refinance, substitute, supplement, replace or add to (including increasing the amount   available for borrowing or adding or removing any Person as a borrower, Company or guarantor thereunder, in   whole or in part), the borrowings and commitments then outstanding or permitted to be outstanding under such   Credit Agreement or one or more successors to the Credit Agreement or one or more new credit agreements.   “Credit Facility” means, with respect to the Company or any of its Subsidiaries, one or more debt facilities,   indentures or other arrangements (including the Credit Agreement or commercial paper facilities and overdraft facil-   ities) with banks, other financial institutions or investors providing for revolving credit loans, term loans, notes, re-   ceivables financing (including through the sale of receivables to such institutions or to special purpose entities   formed to borrow from such institutions against such receivables), letters of credit or other Indebtedness, in each     





 







   -13-                case, as amended, restated, modified, renewed, refunded, replaced, restructured, refinanced, repaid, increased or   extended in whole or in part from time to time (and whether in whole or in part and whether or not with the original   administrative agent and lenders or another administrative agent or agents or other banks or institutions and whether   provided under the original Credit Agreement or one or more other credit or other agreements, indentures, financing   agreements or otherwise) and in each case including all agreements, instruments and documents executed and deliv-   ered pursuant to or in connection with the foregoing (including any notes and letters of credit issued pursuant thereto   and any Guarantee and collateral agreement, patent and trademark security agreement, mortgages or letter of credit   applications and other Guarantees, pledges, agreements, security agreements and collateral documents).  Without   limiting the generality of the foregoing, the term “Credit Facility” shall include any agreement or instrument   (1) changing the maturity of any Indebtedness Incurred thereunder or contemplated thereby, (2) adding Subsidiaries   of the Company as additional borrowers or guarantors thereunder, (3) increasing the amount of Indebtedness In-   curred thereunder or available to be borrowed thereunder or (4) otherwise altering the terms and conditions thereof.   “Custodian” means any receiver, trustee, assignee, liquidator, custodian or similar official under any Bank-   ruptcy Law.   “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.   “Definitive Notes” means certificated Notes.   “Designated Non-Cash Consideration” means the fair market value (as determined in good faith by the   Company) of non-cash consideration received by the Company or one of its Restricted Subsidiaries in connection   with an Asset Disposition that is so designated as Designated Non-Cash Consideration pursuant to an Officer’s Cer-   tificate, setting forth the basis of such valuation, less the amount of cash or Cash Equivalents received in connection   with a subsequent payment, redemption, retirement, sale or other disposition of such Designated Non-Cash Consid-   eration.  A particular item of Designated Non-Cash Consideration will no longer be considered to be outstanding   when and to the extent it has been paid, redeemed or otherwise retired or sold or otherwise disposed of in compli-   ance with Section 3.5 hereof.   “Designated Preferred Stock” means, with respect to the Company, Preferred Stock (other than Disquali-   fied Stock) (a) that is issued for cash (other than to the Company or a Subsidiary of the Company or an employee   stock ownership plan or trust established by the Company or any such Subsidiary for the benefit of their employees   to the extent funded by the Company or such Subsidiary) and (b) that is designated as “Designated Preferred Stock”   pursuant to an Officer’s Certificate of the Company at or prior to the issuance thereof, the Net Cash Proceeds of   which are excluded from the calculation set forth in Section 3.3(a)(iii)(C) hereof.   “Disinterested Director” means, with respect to any Affiliate Transaction, a member of the Board of Direc-   tors of the Company having no material direct or indirect financial interest in or with respect to such Affiliate Trans-   action.  A member of the Board of Directors of the Company shall be deemed not to have such a financial interest by   reason of such member’s holding Capital Stock of the Company or any options, warrants or other rights in respect of   such Capital Stock.   “Disqualified Stock” means, with respect to any Person, any Capital Stock of such Person which by its   terms (or by the terms of any security into which it is convertible or for which it is exchangeable) or upon the hap-   pening of any event:   (1) matures or is mandatorily redeemable for cash or in exchange for Indebtedness pursuant   to a sinking fund obligation or otherwise; or   (2) is or may become (in accordance with its terms) upon the occurrence of certain events or   otherwise redeemable or repurchasable for cash or in exchange for Indebtedness at the option of the holder   of the Capital Stock in whole or in part,     





 







   -14-                in each case on or prior to the earlier of (a) the Stated Maturity of the Notes or (b) the date on which there are no   Notes outstanding; provided, however, that (i) only the portion of Capital Stock which so matures or is mandatorily   redeemable, is so convertible or exchangeable or is so redeemable at the option of the holder thereof prior to such   date will be deemed to be Disqualified Stock and (ii) any Capital Stock that would constitute Disqualified Stock   solely because the holders thereof have the right to require the Company to repurchase such Capital Stock upon the   occurrence of a change of control or asset sale (howsoever defined or referred to) shall not constitute Disqualified   Stock if any such redemption or repurchase obligation is subject to compliance by the relevant Person with Sec-   tion 3.3 hereof; provided, however, that if such Capital Stock is issued to any plan for the benefit of employees of   the Company or its Subsidiaries or by any such plan to such employees, such Capital Stock shall not constitute Dis-   qualified Stock solely because it may be required to be repurchased by the Company or its Subsidiaries in order to   satisfy applicable statutory or regulatory obligations.   “Dollars” or “$” means the lawful money of the United States of America.   “Domestic Subsidiary” means, with respect to any Person, any Restricted Subsidiary of such Person other   than a Foreign Subsidiary.   “DTC” means The Depository Trust Company or any successor securities clearing agency.   “Equity Offering” means (x) a sale of Capital Stock of the Company (other than Disqualified Stock) other   than offerings registered on Form S-8 (or any successor form) under the Securities Act or any similar offering in   other jurisdictions, or (y) the sale of Capital Stock or other securities, the proceeds of which are contributed to the   equity (other than through the issuance of Disqualified Stock or Designated Preferred Stock or through an Excluded   Contribution) of the Company or any of its Restricted Subsidiaries.   “Euro” means the single currency of participating member states of the economic and monetary union as   contemplated in the Treaty on European Union.   “Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended, and the rules and regula-   tions of the SEC promulgated thereunder, as amended.   “Excluded Contribution” means Net Cash Proceeds or property or assets received by the Company as capi-   tal contributions to the equity (other than through the issuance of Disqualified Stock or Designated Preferred Stock)   of the Company after the Issue Date or from the issuance or sale (other than to a Restricted Subsidiary or an em-   ployee stock ownership plan or trust established by the Company or any Subsidiary of the Company for the benefit   of their employees to the extent funded by the Company or any Restricted Subsidiary) of Capital Stock (other than   Disqualified Stock or Designated Preferred Stock) of the Company, in each case, to the extent designated as an Ex-   cluded Contribution pursuant to an Officer’s Certificate of the Company.   “fair market value” may be conclusively established by means of an Officer’s Certificate or resolutions of   the Board of Directors of the Company setting out such fair market value as determined by such Officer or such   Board of Directors in good faith.   “FCC” means the Federal Communications Commission or any governmental authority succeeding to the   Federal Communications Commission.   “FCC Licenses” means the licenses, permits, authorizations or certificates to construct, own or operate tel-   evision or radio stations granted by the FCC, and all extensions, additions and renewals thereto or thereof.   “Fitch” means Fitch Ratings, Inc. or any of its successors or assigns that is a Nationally Recognized Statis-   tical Rating Organization.   “Fixed Charges” means, with respect to any Person for any period, the sum of:   (1) Consolidated Interest Expense of such Person for such Period;     





 







   -15-                (2) all cash dividends or other distributions paid (excluding items eliminated in consolida-   tion) on any series of Preferred Stock of any Restricted Subsidiary of such Person during such period; and   (3) all cash dividends or other distributions paid (excluding items eliminated in consolida-   tion) on any series of Disqualified Stock during this period.   “Foreign Subsidiary” means, with respect to any Person, any Subsidiary of such Person that is not orga-   nized or existing under the laws of the United States, any state thereof or the District of Columbia and any Subsidi-   ary of such Subsidiary.   “GAAP” means generally accepted accounting principles in the United States of America as in effect on   the date of any calculation or determination required hereunder.  Except as otherwise set forth in this Indenture, all   ratios and calculations based on GAAP contained in this Indenture shall be computed in accordance with GAAP.  At   any time after the Issue Date, the Company may elect to establish that GAAP shall mean the GAAP as in effect on   or prior to the date of such election; provided that any such election, once made, shall be irrevocable.  At any time   after the Issue Date, the Company  may elect to apply IFRS accounting principles in lieu of GAAP and, upon any   such election, references herein to GAAP shall thereafter be construed to mean IFRS (except as otherwise provided   in this Indenture), including as to the ability of the Company to make an election pursuant to the previous sentence;   provided that any such election, once made, shall be irrevocable; provided, further, that any calculation or determi-   nation in this Indenture that require the application of GAAP for periods that include fiscal quarters ended prior to   the Company’s election to apply IFRS shall remain as previously calculated or determined in accordance with   GAAP; provided, further again, that the Company may only make such election if it also elects to report any subse-   quent financial reports required to be made by the Company, including pursuant to Section 13 or Section 15(d) of   the Exchange Act and Section 3.10 hereof, in IFRS.  The Company shall give notice of any such election made in   accordance with this definition to the Trustee and the Holders.   “GE Capital” means, collectively, General Electric Capital Corporation and funds or partnerships related   to, or managed or advised by it or any of its affiliates, or any Affiliate of any of them.   “Governmental Authority” means any nation, sovereign or government, any state, province, territory or   other political subdivision thereof, and any entity or authority exercising executive, legislative, judicial, regulatory,   self-regulatory or administrative functions of or pertaining to government, including a central bank or stock ex-   change.   “Guarantee” means, any obligation, contingent or otherwise, of any Person directly or indirectly guarantee-   ing any Indebtedness of any other Person, including any such obligation, direct or indirect, contingent or otherwise,   of such Person:   (1) to purchase or pay (or advance or supply funds for the purchase or payment of) such In-   debtedness of such other Person (whether arising by virtue of partnership arrangements, or by agreements   to keep-well, to purchase assets, goods, securities or services, to take-or-pay or to maintain financial state-   ment conditions or otherwise); or   (2) entered into primarily for purposes of assuring in any other manner the obligee of such   Indebtedness of the payment thereof or to protect such obligee against loss in respect thereof (in whole or   in part);   provided, however, that the term “Guarantee” will not include (x) endorsements for collection or deposit in the ordi-   nary course of business or consistent with past practice and (y) standard contractual indemnities or product warran-   ties provided in the ordinary course of business, and provided, further, that the amount of any Guarantee shall be   deemed to be the lower of (i) an amount equal to the stated or determinable amount of the primary obligation in re-   spect of which such Guarantee is made and (ii) the maximum amount for which such guaranteeing Person may be   liable pursuant to the terms of the instrument embodying such Guarantee or, if such Guarantee is not an uncondi-   tional guarantee of the entire amount of the primary obligation and such maximum amount is not stated or determi-    





 







   -16-                nable, the amount of such guaranteeing Person’s maximum reasonably anticipated liability in respect thereof as de-   termined by such Person in good faith.  The term “Guarantee” used as a verb has a corresponding meaning.   “Guarantor” means any Restricted Subsidiary that Guarantees the Notes, until such Note Guarantee is re-   leased in accordance with the terms of this Indenture.   “Hedging Obligations” means, with respect to any Person, the obligations of such Person under any interest   rate swap agreement, interest rate cap agreement, interest rate collar agreement, commodity swap agreement, com-   modity cap agreement, commodity collar agreement, foreign exchange contracts, currency swap agreement or simi-   lar agreement providing for the transfer or mitigation of interest rate, commodity price or currency risks either gen-   erally or under specific contingencies.   “Holder” means each Person in whose name the Notes are registered on the Registrar’s books, which shall   initially be the respective nominee of DTC.   “IAI” means an institutional “accredited investor” as described in Rule 501(a)(1), (2), (3) or (7) under the   Securities Act.   “IFRS” means the International Financial Reporting Standards, as issued by the International Accounting   Standards Board as in effect from time to time.   “Immaterial Subsidiary” means, at any date of determination, each Restricted Subsidiary of the Company   that (i) has not guaranteed any other Indebtedness of the Company and (ii) has Total Assets together with all other   Immaterial Subsidiaries (as determined in accordance with GAAP) and Consolidated EBITDA of less than 5.0% of   the Company’s Total Assets and Consolidated EBITDA (measured, in the case of Total Assets, at the end of the   most recent fiscal period for which internal financial statements are available and, in the case of Consolidated   EBITDA, for the most recently ended four consecutive fiscal quarters for which internal consolidated financial   statements are available, in each case measured on a pro forma basis giving effect to any acquisitions or dispositions   of the companies, division or lines of business since such balance sheet date or the start of such four quarter period,   as applicable, and on or prior to the date of acquisition of such Subsidiary).   “Incur” means issue, create, assume, enter into any Guarantee of, incur, extend or otherwise become liable   for; provided, however, that any Indebtedness or Capital Stock of a Person existing at the time such Person becomes   a Restricted Subsidiary (whether by merger, amalgamation, consolidation, acquisition or otherwise) will be deemed   to be Incurred by such Restricted Subsidiary at the time it becomes a Restricted Subsidiary and the terms “Incurred”   and “Incurrence” have meanings correlative to the foregoing and any Indebtedness pursuant to any revolving credit   or similar facility shall only be “Incurred” at the time any funds are borrowed thereunder.   “Indebtedness” means, with respect to any Person on any date of determination (without duplication):   (1) the principal of indebtedness of such Person for borrowed money;   (2) the principal of obligations of such Person evidenced by bonds, debentures, notes or other   similar instruments;   (3) all reimbursement obligations of such Person in respect of letters of credit, bankers’ ac-   ceptances or other similar instruments (the amount of such obligations being equal at any time to the aggre-   gate then undrawn and unexpired amount of such letters of credit or other instruments plus the aggregate   amount of drawings thereunder that have not been reimbursed) (except to the extent such reimbursement   obligations relate to trade payables and such obligations are satisfied within 30 days of Incurrence);   (4) the principal component of all obligations of such Person to pay the deferred and unpaid   purchase price of property (except trade payables), which purchase price is due more than one year after the   date of placing such property in service or taking final delivery and title thereto;     





 







   -17-                (5) Capitalized Lease Obligations of such Person;   (6) the principal component of all obligations, or liquidation preference, of such Person with   respect to any Disqualified Stock or, with respect to any Restricted Subsidiary, any Preferred Stock (but   excluding, in each case, any accrued dividends);   (7) the principal component of all Indebtedness of other Persons secured by a Lien on any   asset of such Person, whether or not such Indebtedness is assumed by such Person; provided, however, that   the amount of such Indebtedness will be the lesser of (a) the fair market value of such asset at such date of   determination (as determined in good faith by the Company) and (b) the amount of such Indebtedness of   such other Persons;   (8) Guarantees by such Person of the principal component of Indebtedness of other Persons   to the extent Guaranteed by such Person; and   (9) to the extent not otherwise included in this definition, net obligations of such Person un-   der Hedging Obligations (the amount of any such obligations to be equal at any time to the net payments   under such agreement or arrangement giving rise to such obligation that would be payable by such Person   at the termination of such agreement or arrangement);   with respect to clauses (1), (2), (4) and (5) above, if and to the extent that any of the foregoing Indebtedness (other   than letters of credit and Hedging Obligations) would appear as a liability upon a balance sheet (excluding the foot-   notes thereto) of such Person prepared in accordance with GAAP; provided, that Indebtedness of any Parent Entity   appearing upon the balance sheet of the Company solely by reason of push-down accounting under GAAP shall be   excluded.   The term “Indebtedness” shall not include any lease, concession or license of property (or Guarantee there-   of) which would be considered an operating lease under GAAP as in effect on the Issue Date, any prepayments of   deposits received from clients or customers in the ordinary course of business, or obligations under any license,   permit or other approval (or Guarantees given in respect of such obligations) Incurred prior to the Issue Date or in   the ordinary course of business or consistent with past practice.   The amount of Indebtedness of any Person at any time in the case of a revolving credit or similar facility   shall be the total amount of funds borrowed and then outstanding.  The amount of any Indebtedness outstanding as   of any date shall be (a) the accreted value thereof in the case of any Indebtedness issued with original issue discount   and (b) the principal amount of Indebtedness, or liquidation preference thereof, in the case of any other Indebted-   ness.  Indebtedness shall be calculated without giving effect to the effects of Financial Accounting Standards Board   Accounting Standards Codification Topic No. 815 and related interpretations to the extent such effects would oth-   erwise increase or decrease an amount of Indebtedness for any purpose under this Indenture as a result of accounting   for any embedded derivatives created by the terms of such Indebtedness.   Notwithstanding the above provisions, in no event shall the following constitute Indebtedness:   (i) Contingent Obligations Incurred in the ordinary course of business or consistent with past   practice, other than Guarantees or other assumptions of Indebtedness;   (ii) Cash Management Services;   (iii) any lease, concession or license of property (or Guarantee thereof) which would be consid-   ered an operating lease under GAAP as in effect on the Issue Date or any prepayments of deposits received   from clients or customers in the ordinary course of business or consistent with past practice;   (iv) obligations under any license, permit or other approval (or Guarantees given in respect of   such obligations) incurred prior to the Issue Date or in the ordinary course of business or consistent with   past practice;     





 







   -18-                (v) in connection with the purchase by the Company or any Restricted Subsidiary of any busi-   ness, any post-closing payment adjustments to which the seller may become entitled to the extent such   payment is determined by a final closing balance sheet or such payment depends on the performance of   such business after the closing; provided, however, that, at the time of closing, the amount of any such   payment is not determinable and, to the extent such payment thereafter becomes fixed and determined, the   amount is paid in a timely manner; or   (vi) for the avoidance of doubt, any obligations in respect of workers’ compensation claims, early   retirement or termination obligations, pension fund obligations or contributions or similar claims, obliga-   tions or contributions or social security or wage Taxes.   “Indenture” means this Indenture as amended or supplemented from time to time.   “Independent Financial Advisor” means an investment banking or accounting firm of international standing   or any third party appraiser of international standing; provided, however, that such firm or appraiser is not an Affili-   ate of the Company.   “Initial Notes” has the meaning ascribed to it in the second introductory paragraph of this Indenture.   “Initial Purchasers” means Merrill Lynch, Pierce, Fenner & Smith Incorporated, RBC Capital Markets,   LLC, SunTrust Robinson Humphrey, Inc., Macquarie Capital (USA) Inc. and Jefferies LLC.   “Intercompany License Agreement” means any cost sharing agreement, commission or royalty agreement,   license or sub-license agreement, distribution agreement, services agreement, intellectual property rights transfer   agreement or any related agreements, in each case where all the parties to such agreement are the Company or a   Restricted Subsidiary.   “Investment” means, with respect to any Person, all investments by such Person in other Persons (including   Affiliates) in the form of any direct or indirect advance, loan or other extensions of credit (other than advances or   extensions of credit to customers, suppliers, directors, officers or employees of any Person in the ordinary course of   business or consistent with past practice, and excluding any debt or extension of credit represented by a bank deposit   other than a time deposit) or capital contribution to (by means of any transfer of cash or other property to others or   any payment for property or services for the account or use of others), or the Incurrence of a Guarantee of any obli-   gation of, or any purchase or acquisition of Capital Stock, Indebtedness or other similar instruments issued by, such   other Persons and all other items that are or would be classified as investments on a balance sheet prepared on the   basis of GAAP; provided, however, that endorsements of negotiable instruments and documents in the ordinary   course of business or consistent with past practice will not be deemed to be an Investment.  If the Company or any   Restricted Subsidiary issues, sells or otherwise disposes of any Capital Stock of a Person that is a Restricted Subsid-   iary such that, after giving effect thereto, such Person is no longer a Restricted Subsidiary, any Investment by the   Company or any Restricted Subsidiary in such Person remaining after giving effect thereto will be deemed to be a   new Investment at such time.   For purposes of Section 3.3 and Section 3.20 hereof:   (1) “Investment” will include the portion (proportionate to the Company’s equity interest in a   Restricted Subsidiary to be designated as an Unrestricted Subsidiary) of the fair market value of the net as-   sets of such Restricted Subsidiary of the Company at the time that such Restricted Subsidiary is designated   an Unrestricted Subsidiary; provided, however, that upon a redesignation of such Subsidiary as a Restricted   Subsidiary, the Company will be deemed to continue to have a permanent “Investment” in an Unrestricted   Subsidiary in an amount (if positive) equal to (a) the Company’s “Investment” in such Subsidiary at the   time of such redesignation less (b) the portion (proportionate to the Company’s equity interest in such Sub-   sidiary) of the fair market value of the net assets (as conclusively determined by the Board of Directors of   the Company in good faith) of such Subsidiary at the time that such Subsidiary is so re-designated a Re-   stricted Subsidiary; and     





 







   -19-                (2) any property transferred to or from an Unrestricted Subsidiary will be valued at its fair   market value at the time of such transfer, in each case as determined in good faith by the Board of Directors   of the Company.   “Investment Grade Securities” means:   (1) securities issued or directly and fully Guaranteed or insured by the United States or Ca-   nadian government or any agency or instrumentality thereof (other than Cash Equivalents);   (2) securities issued or directly and fully guaranteed or insured by a member of the European   Union, or any agency or instrumentality thereof (other than Cash Equivalents);   (3) debt securities or debt instruments with a rating of “A-” or higher from S&P or “A3” or   higher by Moody’s or the equivalent of such rating by such rating organization or, if no rating of Moody’s   or S&P then exists, the equivalent of such rating by any other Nationally Recognized Statistical Ratings   Organization, but excluding any debt securities or instruments constituting loans or advances among the   Company and its Subsidiaries; and   (4) investments in any fund that invests exclusively in investments of the type described in   clauses (1), (2) and (3) above which fund may also hold cash and Cash Equivalents pending investment or   distribution.   “Investment Grade Status” shall occur when the Notes receive two of the following:   (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 the above rating organizations or, if no rating of S&P, Moody’s or Fitch then   exists, the equivalent of such rating by any other Nationally Recognized Statistical Ratings Organization.   “Issue Date” means April 1, 2015.   “Leverage Ratio” as of any date of determination, means the ratio of:   (1) Consolidated Total Indebtedness of the Company and its Restricted Subsidiaries at the   time of determination, to   (2)  the Company’s Consolidated EBITDA for the most recently ended four full fiscal quar-   ters for which financial statements are available immediately preceding the date on which such event for   which such calculation is being made shall occur; provided, however, that:   (a)  if the Company or any Restricted Subsidiary has Incurred, repaid, repurchased,   redeemed, retired, defeased or otherwise discharged any Indebtedness since the beginning of such   period that remains outstanding on such date of determination or if the transaction giving rise to   the need to calculate the Leverage Ratio involves an Incurrence, repayment, repurchase, redemp-   tion, retirement, defeasement or other discharge of Indebtedness, Indebtedness at the end of such   period, Consolidated EBITDA and Consolidated Interest Expense for such period will be calculat-   ed after giving effect on a pro forma basis to such Incurrence, repayment, repurchase, redemption,   retirement, defeasement or other discharge of Indebtedness as if such Indebtedness had been In-   curred or repaid, repurchased, redeemed, retired, defeased or otherwise discharged on the first day   of such period; provided, however, that the pro forma calculation shall not give effect to any In-   debtedness Incurred on such date of determination pursuant to the provisions of Section 3.2(b);     





 







   -20-                (b) if since the beginning of such period the Company or any Restricted Subsidiary   will have made any Asset Disposition or disposed of or discontinued any company, division, oper-   ating unit, segment, business, group of related assets or line of business or if the transaction giving   rise to the need to calculate the Leverage Ratio includes such an Asset Disposition, Consolidated   EBITDA, Consolidated Interest Expense and Indebtedness for such period will be calculated after   giving pro forma effect thereto (including the Incurrence of any Indebtedness) as if such Asset   Disposition, disposition or discontinuation occurred on the first day of such period;   (c)  if since the beginning of such period the Company or any Restricted Subsidiary   (by merger or otherwise) will have made an Investment in any Restricted Subsidiary (or any Per-   son that becomes a Restricted Subsidiary or is merged with or into the Company or a Restricted   Subsidiary) or an acquisition of assets, including any acquisition of assets occurring in connection   with a transaction causing a calculation to be made hereunder, which constitutes all or substantial-   ly all of a company, division, operating unit, segment, business or group of related assets or line of   business, Consolidated EBITDA, Consolidated Interest Expense and Indebtedness for such period   will be calculated after giving pro forma effect thereto (including the Incurrence of any Indebted-   ness) as if such Investment or acquisition occurred on the first day of such period; and   (d)  if since the beginning of such period any Person (that subsequently became a   Restricted Subsidiary or was merged with or into the Company or any Restricted Subsidiary since   the beginning of such period) will have Incurred any Indebtedness or discharged any Indebtedness   or made any disposition or any Investment or acquisition of assets that would have required an ad-   justment pursuant to clause (a), (b) or (c) above if made by the Company or a Restricted Subsidi-   ary during such period, Consolidated EBITDA, Consolidated Interest Expense and Indebtedness   for such period will be calculated after giving pro forma effect thereto as if such transaction oc-   curred on the first day of such period.    The pro forma calculations will be determined in good faith by a responsible financial or accounting Of-   ficer of the Company. If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the   interest expense on such Indebtedness will 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 Indebted-   ness).   Notwithstanding anything in this definition to the contrary, when calculating the Leverage Ratio in connec-   tion with a Limited Condition Acquisition, the date of determination of such ratio and of any default or event of de-   fault blocker shall, at the option of the Company, be the date the definitive agreements for such Limited Condition   Acquisition are entered into and such ratios shall be calculated on a pro forma basis after giving effect to such Lim-   ited Condition Acquisition and the other transactions to be entered into in connection therewith (including any incur-   rence of Indebtedness and the use of proceeds thereof) as if they occurred at the beginning of the four-quarter refer-   ence period, and, for the avoidance of doubt, (x) if any such ratios are exceeded as a result of fluctuations in such   ratio (including due to fluctuations in Consolidated EBITDA of the Company or the target company) at or prior to   the consummation of the relevant Limited Condition Acquisition, such ratio will not be deemed to have been ex-   ceeded as a result of such fluctuations solely for purposes of determining whether the Limited Condition Acquisition   is permitted hereunder and (y) such ratio shall not be tested at the time of consummation of such Limited Condition   Acquisition or related transactions; provided further, that if the Company elects to have such determination occur at   the time of entry into such definitive agreement, any such transaction shall be deemed to have occurred on the date   the definitive agreements are entered and outstanding thereafter for purposes of subsequently calculating any ratios   under this Indenture after the date of such agreement and before the consummation of such Limited Condition Ac-   quisition and to the extent baskets were utilized in satisfying any covenants, such baskets shall be deemed utilized,   but any calculation of Total Assets or Consolidated Net Income for purposes of other incurrences of Indebtedness or   Liens or making of Restricted Payments (not related to such Limited Condition Acquisition) shall not reflect such   Limited Condition Acquisition until it is closed.   “License Subsidiary” means a wholly-owned Subsidiary of the Company that (x) owns no material assets   other than FCC Licenses and related rights and (y) has no material liabilities other than (i) trade payables incurred in     





 







   -21-                the ordinary course of business and (ii) tax liabilities, other governmental charges and other liabilities incidental to   ownership of such rights.   “Lien” means any mortgage, pledge, security interest, encumbrance, lien, hypothecation or charge of any   kind (including any conditional sale or other title retention agreement or lease in the nature thereof).   “Limited Condition Acquisition” means any acquisition, including by means of a merger or consolidation,   by the Company or one or more of its Restricted Subsidiaries, the consummation of which is not conditioned upon   the availability of, or on obtaining, third party financing; provided that for purposes of determining compliance with   Section 3.3 hereof, the Consolidated Net Income (and any other financial defined term derived therefrom) shall not   include any Consolidated Net Income of or attributable to the target company or assets associated with any such   Limited Condition Acquisition unless and until the closing of such Limited Condition Acquisition shall have actual-   ly occurred.   “Management Advances” means loans or advances made to, or Guarantees with respect to loans or advanc-   es made to, directors, officers, employees or consultants of any Parent Entity, the Company or any Restricted Sub-   sidiary:   (1) (a) in respect of travel, entertainment or moving related expenses Incurred in the ordinary   course of business or consistent with past practice or (b) for purposes of funding any such person’s pur-   chase of Capital Stock (or similar obligations) of the Company, its Subsidiaries or any Parent Entity with   (in the case of this sub-clause (b)) the approval of the Board of Directors;   (2) in respect of moving related expenses Incurred in connection with any closing or consoli-   dation of any facility or office; or   (3) not exceeding $15.0 million in the aggregate outstanding at any time.   “Moody’s” means Moody’s Investors Service, Inc. or any of its successors or assigns 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.   “Net Available Cash” from an Asset Disposition means cash payments received (including any cash pay-   ments received by way of deferred payment of principal pursuant to a note or installment receivable or otherwise   and net proceeds from the sale or other disposition of any securities received as consideration, but only as and when   received, but excluding any other consideration received in the form of assumption by the acquiring person of In-   debtedness or other obligations relating to the properties or assets that are the subject of such Asset Disposition or   received in any other non-cash form) therefrom, in each case net of:   (1) all legal, accounting, investment banking, title and recording tax expenses, commissions   and other fees and expenses Incurred, and all Taxes paid, reasonably estimated to be actually payable or ac-   crued as a liability under GAAP (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 after taking into account   any available tax credits or deductions and any tax sharing agreements), as a consequence of such Asset   Disposition, including distributions for Related Taxes;   (2) all payments made on any Indebtedness which is secured by any assets subject to such   Asset Disposition, in accordance with the terms of any Lien upon such assets, or which by applicable law   be repaid out of the proceeds from such Asset Disposition;   (3) all distributions and other payments required to be made to minority interest holders (oth-   er than any Parent Entity, the Company or any of its respective Subsidiaries) in Subsidiaries or joint ven-   tures as a result of such Asset Disposition; and     





 







   -22-                (4) the deduction of appropriate amounts required to be provided by the seller as a reserve,   on the basis of GAAP, against any liabilities associated with the assets disposed of in such Asset Disposi-   tion and retained by the Company or any Restricted Subsidiary after such Asset Disposition.   “Net Cash Proceeds,” with respect to any issuance or sale of Capital Stock, means the cash proceeds of   such issuance or sale net of attorneys’ fees, accountants’ fees, underwriters’ or placement agents’ fees, listing fees,   discounts or commissions and brokerage, consultant and other fees and charges actually Incurred in connection with   such issuance or sale and net of Taxes paid or reasonably estimated to be actually payable as a result of such issu-   ance or sale (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 after taking into account any available tax credit or deductions   and any tax sharing agreements).   “Non-Guarantor” means any Restricted Subsidiary of the Company that is not a Guarantor.   “Non-U.S. Person” means a Person who is not a U.S. Person (as defined in Regulation S).   “Note Documents” means the Notes (including Additional Notes), the Note Guarantees and this Indenture.   “Notes” has the meaning ascribed to it in the second introductory paragraph of this Indenture.   “Notes Custodian” means the custodian with respect to the Global Notes (as appointed by DTC), or any   successor Person thereto and shall initially be the Trustee.   “Oaktree” means, collectively, Oaktree Capital Management, L.P. and Oaktree Capital Group Holdings,   GP, LLC, and funds or partnerships related to, or managed or advised by any of them or any Affiliate of any of   them.   “Obligations” means any principal, interest (including interest accruing on or after the filing of any petition   in bankruptcy or for reorganization relating to the Company or any Guarantor whether or not a claim for Post-   Petition Interest is allowed in such proceedings), penalties, fees, indemnifications, reimbursements (including, with-   out limitation, reimbursement obligations with respect to letters of credit and bankers’ acceptances), damages and   other liabilities payable under the documentation governing any Indebtedness.   “Offering Memorandum” means the final offering memorandum, dated March 24, 2015 relating to the of-   fering by the Company of $300.0 million principal amount of 6.500% Senior Notes due 2023 and any future offer-   ing memorandum relating to Additional Notes.   “Officer” means, with respect to any Person, (1) the Chairman of the Board of Directors, the Chief Execu-   tive Officer, the President, the Chief Financial Officer, any Vice President, the Treasurer, any Managing Director, or   the 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 of   such Person.   “Officer’s Certificate” means, with respect to any Person, a certificate signed by one Officer of such Per-   son.   “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.   “Parent Entity” means any direct or indirect parent of the Company.   “Parent Entity Expenses” means:   (1) costs (including all professional fees and expenses) Incurred by any Parent Entity in con-   nection with reporting obligations under or otherwise Incurred in connection with compliance with applica-    





 







   -23-                ble laws, rules or regulations of any governmental, regulatory or self-regulatory body or stock exchange,   this Indenture or any other agreement or instrument relating to the Notes, the Guarantees or any other In-   debtedness of the Company or any Restricted Subsidiary, including in respect of any reports filed or deliv-   ered with respect to the Securities Act, Exchange Act or the respective rules and regulations promulgated   thereunder;   (2) customary indemnification obligations of any Parent Entity owing to directors, officers,   employees or other Persons under its articles, charter, by-laws, partnership agreement or other constating   documents or pursuant to written agreements with any such Person to the extent relating to the Company   and its Subsidiaries;   (3) obligations of any Parent Entity in respect of director and officer insurance (including   premiums therefor) to the extent relating to the Company and its Subsidiaries;   (4) (x) general corporate overhead expenses, including professional fees and expenses and   (y) other operational expenses of any Parent Entity related to the ownership or operation of the business of   the Company or any of its Restricted Subsidiaries;   (5) customary expenses Incurred by any Parent Entity in connection with any offering, sale,   conversion or exchange of Capital Stock or Indebtedness; and   (6) amounts to finance Investments that would otherwise be permitted to be made pursuant to   Section 3.3 hereof if made by the Company; provided, that (A) such Restricted Payment shall be made sub-   stantially concurrently with the closing of such Investment, (B) such direct or indirect parent company   shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity   Interests) to be contributed to the capital of the Company or one of its Restricted Subsidiaries or (2) the   merger, consolidation or amalgamation of the Person formed or acquired into the Company or one of its   Restricted Subsidiaries (to the extent not prohibited by Section 4.1 hereof) in order to consummate such In-   vestment, (C) such direct or indirect parent company and its Affiliates (other than the Company or a Re-   stricted Subsidiary) receives no consideration or other payment in connection with such transaction except   to the extent the Company or a Restricted Subsidiary could have given such consideration or made such   payment in compliance with this Indenture and such consideration or other payment is included as a Re-   stricted Payment under this Indenture, (D) any property received by the Company shall not increase   amounts available for Restricted Payments pursuant to Section 3.3(a)(iii)(C) and (E) such Investment shall   be deemed to be made by the Company or such Restricted Subsidiary pursuant to another provision of this   covenant or pursuant to the definition of “Permitted Investments.”   “Pari Passu Indebtedness” means Indebtedness of the Company which ranks equally in right of payment to   the Notes or of any Guarantor if such Indebtedness ranks equally in right of payment to the Guarantees of the Notes.   “Paying Agent” means any Person authorized by the Company to pay the principal of (and premium, if   any) or interest on any Note on behalf of the Company.   “Permitted Asset Swap” means the concurrent purchase and sale or exchange of assets used or useful in a   Similar Business or a combination of such assets and cash, Cash Equivalents between the Company or any of its   Restricted Subsidiaries and another Person; provided that any cash or Cash Equivalents received in excess of the   value of any cash or Cash Equivalents sold or exchanged must be applied in accordance with Section 3.5 hereof.   “Permitted Holders” means, collectively, (1) Oaktree, (2) GE Capital, (3) any one or more Persons, togeth-   er with such Persons’ Affiliates,  whose beneficial ownership constitutes or results in a Change of Control in respect   of which a Change of Control Offer is made in accordance with the requirements of this Indenture, (4) members of   management of  the Company (or Parent Entities), (5) any Person who is acting solely as an underwriter in connec-   tion with a public or private offering of Capital Stock of any Parent Entity or the Company, acting in such capacity,   and (6) any group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act or any successor   provision) of which any of the foregoing are members; provided that, in the case of such group and without giving     





 







   -24-                effect to the existence of such group or any other group, Oaktree and GE Capital and members of management of   the Company, collectively, have beneficial ownership of more than 50% of the total voting power of the Voting   Stock of the Company or Parent Entities held by such group.   “Permitted Investment” means (in each case, by the Company or any of its Restricted Subsidiaries):   (1) Investments in (a) a Restricted Subsidiary (including the Capital Stock of a Restricted   Subsidiary) or the Company or (b) a Person (including the Capital Stock of any such Person) that will, upon   the making of such Investment, become a Restricted Subsidiary;   (2) Investments in another Person if such Person is engaged in any Similar Business and as a   result of such Investment such other Person is merged, amalgamated, consolidated or otherwise combined   with or into, or transfers or conveys all or substantially all its assets to, the Company or a Restricted Sub-   sidiary;   (3) Investments in cash, Cash Equivalents or Investment Grade Securities;   (4) Investments in receivables owing to the Company or any Restricted Subsidiary created or   acquired in the ordinary course of business or consistent with past practice;   (5) Investments in payroll, travel and similar advances to cover matters that are expected at   the time of such advances ultimately to be treated as expenses for accounting purposes and that are made in   the ordinary course of business or consistent with past practice;   (6) Management Advances;   (7) Investments received in settlement of debts created in the ordinary course of business or   consistent with past practice and owing to the Company or any Restricted Subsidiary or in exchange for   any other Investment or accounts receivable held by the Company or any such Restricted Subsidiary, or as   a result of foreclosure, perfection or enforcement of any Lien, or in satisfaction of judgments or pursuant to   any plan of reorganization or similar arrangement including upon the bankruptcy or insolvency of a debtor   or otherwise with respect to any secured Investment or other transfer of title with respect to any secured In-   vestment in default;   (8) Investments made as a result of the receipt of non-cash consideration from a sale or other   disposition of property or assets, including an Asset Disposition;   (9) Investments existing or pursuant to agreements or arrangements in effect on the Issue   Date and any modification, replacement, renewal or extension thereof; provided that the amount of any   such Investment may not be increased except (a) as required by the terms of such Investment as in exist-   ence on the Issue Date or (b) as otherwise permitted under this Indenture;   (10) Hedging Obligations, which transactions or obligations are Incurred in compliance with   Section 3.2(b)(6) hereof;   (11) pledges or deposits with respect to leases or utilities provided to third parties in the ordi-   nary course of business or Liens otherwise described in the definition of “Permitted Liens” or made in con-   nection with Liens permitted under Section 3.6 hereof;   (12) any Investment to the extent made using Capital Stock of the Company (other than Dis-   qualified Stock) or Capital Stock of any Parent Entity as consideration;   (13) any transaction to the extent constituting an Investment that is permitted and made in ac-   cordance with Section 3.8(b) hereof (except those described in Sections 3.8(b)(1), (3), (6), (7), (9), (12) and   (14));     





 







   -25-                (14) Investments consisting of purchases and acquisitions of inventory, supplies, materials and   equipment or licenses or leases of intellectual property, in any case, in the ordinary course of business and   in accordance with this Indenture;   (15) (i) Guarantees of Indebtedness not prohibited by Section 3.2 hereof and (other than with   respect to Indebtedness) guarantees, keepwells and similar arrangements in the ordinary course of business   and (ii) performance guarantees with respect to obligations that are permitted by this Indenture;    (16) Investments consisting of earnest money deposits required in connection with a purchase   agreement, or letter of intent, or other acquisitions to the extent not otherwise prohibited by this Indenture;   (17) Investments of a Restricted Subsidiary acquired after the Issue Date or of an entity   merged or amalgamated into the Company or merged or amalgamated into or consolidated with a Restrict-   ed Subsidiary after the Issue Date to the extent that such Investments were not made in contemplation of or   in connection with such acquisition, merger, amalgamation or consolidation and were in existence on the   date of such acquisition, merger, amalgamation or consolidation;   (18) Investments consisting of licensing or contribution of intellectual property pursuant to   joint marketing arrangements with other Persons;   (19) contributions to a “rabbi” trust for the benefit of employees or other grantor trust subject   to claims of creditors in the case of a bankruptcy of the Company;    (20) Investments in joint ventures and similar entities and Unrestricted Subsidiaries having an   aggregate fair market value, when taken together with all other Investments made pursuant to this clause   that are at the time outstanding, not to exceed the greater of $30.0 million and 3.25% of Total Assets at the   time of such Investment (with the fair market value of each Investment being measured at the time made   and without giving effect to subsequent changes in value);   (21) additional Investments having an aggregate fair market value, taken together with all oth-   er Investments made pursuant to this clause (21) that are at that time outstanding, not to exceed the greater   of $30.0 million and 3.25% of Total Assets (with the fair market value of each Investment being measured   at the time made and without giving effect to subsequent changes in value) plus the amount of any distribu-   tions, dividends, payments or other returns in respect of such Investments (without duplication for purposes   of Section 3.3 of any amounts applied pursuant to clause (c) of the first paragraph of such covenant); pro-   vided that if such Investment is in Capital Stock of a Person that subsequently becomes a Restricted Subsid-   iary, such Investment shall thereafter be deemed permitted under clause (1) or (2) above and shall not be   included as having been made pursuant to this clause (21);   (22) the Permitted Joint Venture;   (23) repurchases of Notes; and   (24) transactions entered into in order to consummate a Permitted Tax Restructuring.   “Permitted Joint Venture” means the one-time contribution of assets to a joint venture; provided that the as-   sets contributed do not generate in excess of $2.5 million of Consolidated EBITDA annually.   “Permitted Liens” means, with respect to any Person:   (1) Liens on  assets or property of a Restricted Subsidiary that is not a Guarantor securing   Indebtedness of any Restricted Subsidiary that is not a Guarantor;   (2) pledges, deposits or Liens under workmen’s compensation laws, payroll taxes, unem-   ployment insurance laws, social security laws or similar legislation, or insurance related obligations (in-    





 







   -26-                cluding pledges or deposits securing liability to insurance carriers under insurance or self-insurance ar-   rangements), or in connection with bids, tenders, completion guarantees, contracts (other than for borrowed   money) or leases, or to secure utilities, licenses, public or statutory obligations, or to secure surety, indem-   nity, judgment, appeal or performance bonds, guarantees of government contracts (or other similar bonds,   instruments or obligations), or as security for contested taxes or import or customs duties or for the pay-   ment of rent, or other obligations of like nature, in each case Incurred in the ordinary course of business;   (3) Liens imposed by law, including carriers’, warehousemen’s, mechanics’, landlords’, ma-   terialmen’s, repairmen’s, construction contractors’ or other like Liens, in each case for sums not yet over-   due for a period of more than 60 days or that are bonded or being contested in good faith by appropriate   proceedings;   (4) Liens for Taxes which are not overdue for a period of more than 60 days or which are be-   ing contested in good faith by appropriate proceedings; provided that appropriate reserves required pursu-   ant to GAAP have been made in respect thereof;   (5) encumbrances, ground leases, easements (including reciprocal easement agreements),   survey exceptions, or reservations of, or rights of others for, licenses, rights of way, sewers, electric lines,   telegraph and telephone lines and other similar purposes, or zoning, building codes or other restrictions (in-   cluding minor defects or irregularities in title and similar encumbrances) as to the use of real properties or   Liens incidental to the conduct of the business of the Company and its Restricted Subsidiaries or to the   ownership of  their properties which do not in the aggregate materially adversely affect the value of said   properties or materially impair their use in the operation of the business of the Company and its Restricted   Subsidiaries;   (6) Liens (a) on assets or property of the Company or any Restricted Subsidiary securing   Hedging Obligations or Cash Management Services permitted under this Indenture; (b) that are contractual   rights of set-off or, in the case of clause (i) or (ii) below, other bankers’ Liens (i) relating to treasury, depos-   itory and cash management services or any automated clearing house transfers of funds in the ordinary   course of business and not given in connection with the issuance of Indebtedness, (ii) relating to pooled de-   posit or sweep accounts to permit satisfaction of overdraft or similar obligations incurred in the ordinary   course of business of the Company or any Subsidiary or (iii) relating to purchase orders and other agree-   ments entered into with customers of the Company or any Restricted Subsidiary in the ordinary course of   business; (c) on cash accounts securing Indebtedness incurred under Section 3.2(b)(8)(iii) with financial in-   stitutions; (d) encumbering reasonable customary initial deposits and margin deposits and similar Liens at-   taching to commodity trading accounts or other brokerage accounts incurred in the ordinary course of busi-   ness, consistent with past practice and not for speculative purposes; and/or (e) (i) of a collection bank aris-   ing under Section 4-210 of the UCC on items in the course of collection and (ii) in favor of a banking insti-   tution arising as a matter of law encumbering deposits (including the right of set-off) arising in the ordinary   course of business in connection with the maintenance of such accounts and (iii) arising under customary   general terms of the account bank in relation to any bank account maintained with such bank and attaching   only to such account and the products and proceeds thereof, which Liens, in any event, do not to secure any   Indebtedness;   (7) leases, licenses, subleases and sublicenses of assets (including real property and intellec-   tual property rights), in each case entered into in the ordinary course of business;   (8) Liens arising out of judgments, decrees, orders or awards not giving rise to an Event of   Default so long as (a) any appropriate legal proceedings which may have been duly initiated for the review   of such judgment, decree, order or award have not been finally terminated, (b) the period within which such   proceedings may be initiated has not expired or (c) no more than 60 days have passed after (i) such judg-   ment, decree, order or award has become final or (ii) such period within which such proceedings may be in-   itiated has expired;   (9) Liens (i) on assets or property of the Company or any Restricted Subsidiary for the pur-   pose of securing Capitalized Lease Obligations or Purchase Money Obligations, or securing the payment of     





 







   -27-                all or a part of the purchase price of, or securing other Indebtedness Incurred to finance or refinance the ac-   quisition, improvement or construction of, assets or property acquired or constructed in the ordinary course   of business; provided that (a) the aggregate principal amount of Indebtedness secured by such Liens is oth-   erwise permitted to be Incurred under this Indenture and (b) any such Liens may not extend to any assets or   property of the Company or any Restricted Subsidiary other than assets or property acquired, improved,   constructed or leased with the proceeds of such Indebtedness and any improvements or accessions to such   assets and property and (ii) on any interest or title of a lessor under any Capitalized Lease Obligations or   operating lease;   (10) Liens perfected or evidenced by UCC financing statement filings (or similar filings in   other applicable jurisdictions) regarding operating leases entered into by the Company and its Restricted   Subsidiaries in the ordinary course of business;   (11) Liens existing on the Issue Date, excluding Liens securing the Credit Agreement;   (12) Liens on property, other assets or shares of stock of a Person at the time such Person be-   comes a Restricted Subsidiary (or at the time the Company or a Restricted Subsidiary acquires such proper-   ty, other assets or shares of stock, including any acquisition by means of a merger, amalgamation, consoli-   dation or other business combination transaction with or into the Company or any Restricted Subsidiary);   provided, however, that such Liens are not created, Incurred or assumed in anticipation of or in connection   with such other Person becoming a Restricted Subsidiary (or such acquisition of such property, other assets   or stock); provided, further, that such Liens are limited to all or part of the same property, other assets or   stock (plus improvements, accession, proceeds or dividends or distributions in connection with the original   property, other assets or stock) that secured (or, under the written arrangements under which such Liens   arose, could secure) the obligations to which such Liens relate;   (13) Liens on assets or property of the Company or any Restricted Subsidiary securing Indebt-   edness or other obligations of the Company or such Restricted Subsidiary owing to the Company or another   Restricted Subsidiary, or Liens in favor of the Company or any Restricted Subsidiary;   (14) Liens securing Refinancing Indebtedness Incurred to refinance Indebtedness that was   previously so secured, and permitted to be secured under this Indenture; provided that any such Lien is lim-   ited to all or part of the same property or assets (plus improvements, accessions, proceeds or dividends or   distributions in respect thereof) that secured (or, under the written arrangements under which the original   Lien arose, could secure) the Indebtedness being refinanced or is in respect of property that is or could be   the security for or subject to a Permitted Lien hereunder;   (15) (a) mortgages, liens, security interests, restrictions, encumbrances or any other matters of   record that have been placed by any government, statutory or regulatory authority, developer, landlord or   other third party on property over which the Company or any Restricted Subsidiary of the Company has   easement rights or on any leased property and subordination or similar arrangements relating thereto and   (b) any condemnation or eminent domain proceedings affecting any real property;   (16) any encumbrance or restriction (including put and call arrangements) with respect to Cap-   ital Stock of any joint venture or similar arrangement pursuant to any joint venture or similar agreement;   (17) Liens on property or assets under construction (and related rights) in favor of a contractor   or developer or arising from progress or partial payments by a third party relating to such property or as-   sets;   (18) Liens arising out of conditional sale, title retention, hire purchase, consignment or similar   arrangements for the sale of goods entered into in the ordinary course of business;     





 







   -28-                (19) Liens securing Indebtedness permitted to be Incurred under Credit Facilities, including   any letter of credit facility relating thereto, that was permitted by the terms of this Indenture to be Incurred   pursuant to Section 3.2(b)(1);    (20) Liens to secure Indebtedness of any Non-Guarantor permitted by Section 3.2(b)(11);   (21) Liens on Capital Stock or other securities or assets of any Unrestricted Subsidiary that se-   cure Indebtedness of such Unrestricted Subsidiary;   (22) any security granted over the marketable securities portfolio described in clause (9) of the   definition of “Cash Equivalents” in connection with the disposal thereof to a third party;   (23) Liens on specific items of inventory of other goods and proceeds of any Person securing   such Person’s obligations in respect of bankers’ acceptances issued or created for the account of such Per-   son to facilitate the purchase, shipment or storage of such inventory or other goods;   (24) Liens on equipment of the Company or any Restricted Subsidiary and located on the   premises of any client or supplier in the ordinary course of business;   (25) Liens on assets or securities deemed to arise in connection with and solely as a result of   the execution, delivery or performance of contracts to sell such assets or securities if such sale is otherwise   permitted by this Indenture;   (26) Liens arising by operation of law or contract on insurance policies and the proceeds   thereof to secure premiums thereunder, and Liens, pledges and deposits in the ordinary course of business   securing liability for premiums or reimbursement or indemnification obligations of (including obligations   in respect of letters of credit or bank guarantees for the benefits of) insurance carriers;   (27) Liens solely on any cash earnest money deposits made in connection with any letter of in-   tent or purchase agreement permitted under this Indenture;   (28) Liens (i) on cash advances in favor of the seller of any property to be acquired in an In-   vestment permitted pursuant to Permitted Investments to be applied against the purchase price for such In-   vestment, and (ii) consisting of an agreement to sell any property in an asset sale permitted under Sec-   tion 3.5, in each case, solely to the extent such Investment or asset sale, as the case may be, would have   been permitted on the date of the creation of such Lien;   (29) Liens securing Indebtedness and other obligations in an aggregate principal amount not to   exceed $30.0 million at any one time outstanding;   (30) Liens Incurred to secure Obligations in respect of any Indebtedness permitted to be In-   curred pursuant to the covenant described under Section 3.2; provided that in the case of Liens Incurred   pursuant to this clause (30), at the time of Incurrence and after giving pro forma effect thereto, the Consoli-   dated Secured Leverage Ratio would be no greater than 4.00 to 1.00;   (31) Liens securing any Obligations in respect of the Notes or this Indenture; and   (32) Liens arising in connection with any Intercompany License Agreements.   For purposes of this definition, the term Indebtedness shall be deemed to include interest on such Indebtedness in-   cluding interest which increases the principal amount of such Indebtedness.  In the event that a Permitted Lien meets   the criteria of more than one of the types of Permitted Liens (at the time of incurrence or at a later date), the Compa-   ny in its sole discretion may divide, classify or from time to time reclassify all or any portion of such Permitted Lien   in any manner that complies with this Indenture and such Permitted Lien shall be treated as having been made pur-    





 







   -29-                suant only to the clause or clauses of the definition of “Permitted Lien” to which such Permitted Lien has been clas-   sified or reclassified; provided, however, that the foregoing shall not apply to clause (19) above.   “Permitted Tax Distribution” means:   (a) if and for so long as the Company is a member of a group filing a consolidated or com-   bined tax return for U.S. federal, state, local and/or foreign income Tax purposes with any Parent Entity,   any dividends or other distributions to fund any U.S. federal, state, local and/or foreign income Taxes (as   applicable) for which such Parent Entity is liable that are attributable to the income of the Company and/or   the applicable Restricted Subsidiaries (or, to the extent of the amount actually received from its applicable   Unrestricted Subsidiaries for such purpose, such Unrestricted Subsidiaries) up to an amount not to exceed   the amount of any such Taxes that the Company, its applicable Restricted Subsidiaries and (to the extent   described above) its applicable Unrestricted Subsidiaries would have been required to pay on a separate   company basis or on a consolidated basis calculated as if the Company, its applicable Restricted Subsidiar-   ies and (to the extent described above) its applicable Unrestricted Subsidiaries had paid Tax on a consoli-   dated, combined or similar basis on behalf of an affiliated group consisting only of the Company and such   Subsidiaries; and   (b) for any taxable year (or portion thereof) ending after the Issue Date for which the Com-   pany is treated as a disregarded entity, partnership, or other flow-through entity for federal, state, local   and/or foreign income Tax purposes, the payment of dividends or other distributions to the Company’s di-   rect owner(s) to fund the federal, state, local and/or foreign income Tax liability, as applicable, of such   owner(s) (or, if a direct owner is a pass-through entity, of the indirect owner(s)) for such taxable year (or   portion thereof) attributable to the operations and activities of the Company and its direct and indirect Sub-   sidiaries, in an aggregate amount not to exceed the product of (x) the highest combined marginal federal   and applicable state, provincial, territorial and/or local statutory Tax rate (after taking into account the de-   ductibility of U.S. state and local income Tax for U.S. federal income Tax purposes and (y) the taxable in-   come of the Company for such taxable year (or portion thereof).   “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 prior to, on or after the date hereof so   long as such Permitted Tax Restructuring is not materially adverse to the Holders of the Notes.   “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.   “Post-Petition Interest” means any interest or entitlement to fees or expenses or other charges that accrue   after the commencement of any bankruptcy or insolvency proceeding, whether or not allowed or allowable as a   claim in any such bankruptcy or insolvency proceeding.   “Predecessor Note” of any particular Note means every previous Note evidencing all or a portion of the   same debt as that evidenced by such particular Note; and, for the purposes of this definition, any Note authenticated   and delivered under Section 2.11 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Note shall be   deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Note.   “Preferred Stock,” as applied to the Capital Stock of any Person, means Capital Stock of any class or clas-   ses (however designated) which is preferred as to the payment of dividends or as to the distribution of assets upon   any voluntary or involuntary liquidation or dissolution of such Person, over shares of Capital Stock of any other   class of such Person.   “Purchase Money Obligations” means any Indebtedness Incurred to finance or refinance the acquisition,   leasing, construction or improvement of property (real or personal) or assets (including Capital Stock), and whether   acquired through the direct acquisition of such property or assets or the acquisition of the Capital Stock of any Per-   son owning such property or assets, or otherwise.     





 







   -30-                “QIB” means any “qualified institutional buyer” as such term is defined in Rule 144A.   “Refinance” means refinance, refund, replace, renew, repay, modify, restate, defer, substitute, supplement,   reissue, resell, extend or increase (including pursuant to any defeasance or discharge mechanism) and the terms “re-   finances,” “refinanced” and “refinancing” as used for any purpose in this Indenture shall have a correlative meaning.   “Refinancing Indebtedness” means Indebtedness that is Incurred to refund, refinance, replace, exchange,   renew, repay or extend (including pursuant to any defeasance or discharge mechanism) any Indebtedness existing on   the Issue Date or Incurred in compliance with this Indenture (including Indebtedness of the Company that refinances   Indebtedness of any Restricted Subsidiary and Indebtedness of any Restricted Subsidiary that refinances Indebted-   ness of the Company or another Restricted Subsidiary) including Indebtedness that refinances Refinancing Indebt-   edness; provided, however, that:   (1) if the Indebtedness being refinanced constitutes Subordinated Indebtedness, the Refinanc-   ing Indebtedness has a final Weighted Average Life to Maturity at the time such Refinancing Indebtedness   is Incurred that is the same as or greater than the final Weighted Average Life to Maturity of the Indebted-   ness being refinanced or, if less, the Notes and such Refinancing Indebtedness is subordinated to the Notes   on terms at least as favorable to the Holders as those contained in the documentation governing the Indebt-   edness being refinanced; and   (2) Refinancing Indebtedness shall not include:   (i) Indebtedness, Disqualified Stock or Preferred Stock of a Subsidiary of the Com-   pany that is not the Company or a Guarantor that refinances Indebtedness, Disqualified Stock or   Preferred Stock of the Company or a Guarantor; or   (ii) Indebtedness, Disqualified Stock or Preferred Stock of the Company or a Re-   stricted Subsidiary that refinances Indebtedness, Disqualified Stock or Preferred Stock of an Unre-   stricted Subsidiary.   Refinancing Indebtedness in respect of any Credit Facility or any other Indebtedness may be Incurred from   time to time after the termination, discharge or repayment of any such Credit Facility or other Indebtedness.   “Regulation S” means Regulation S under the Securities Act.   “Regulation S-X” means Regulation S-X under the Securities Act.   “Related Taxes” means, without duplication, any Taxes, including sales, use, transfer, rental, ad valorem,   value added, stamp, property, consumption, franchise, license, capital, registration, business, customs, net worth,   gross receipts, excise, occupancy, intangibles or similar Taxes (other than (x) Taxes measured by income and   (y) withholding Taxes), required to be paid (provided such Taxes are in fact paid) by any Parent Entity by virtue of   its:   (a) being organized or having Capital Stock outstanding (but not by virtue of owning stock   or other equity interests of any corporation or other entity other than, directly or indirectly, the Company or   any of the Company’s Subsidiaries) otherwise maintain its existence or good standing under applicable   law;   (b) being a holding company parent, directly or indirectly, of the Company or any of the   Company’s Subsidiaries;   (c) receiving dividends from or other distributions in respect of the Capital Stock of, directly   or indirectly, the Company or any of the Company’s Subsidiaries; or     





 







   -31-                (d) having made any payment in respect to any of the items for which the Company is per-   mitted to make payments to any Parent Entity pursuant to Section 3.3.   “Restricted Investment” means any Investment other than a Permitted Investment.   “Restricted Notes” means Initial Notes and Additional Notes bearing one of the restrictive legends de-   scribed in Section 2.1(d).   “Restricted Notes Legend” means the legend set forth in Section 2.1(d)(1) and, in the case of the Tempo-   rary Regulation S Global Note, the legend set forth in Section 2.1(d)(2).   “Restricted Subsidiary” means any Subsidiary of the Company other than an Unrestricted Subsidiary.   “Reversion Date” means, during any period of time during which the Company and the Restricted Subsidi-   aries are not subject to Sections 3.2, 3.3, 3.4, 3.5, 3.7, 3.8 and 4.1(a)(3) (collectively, the “Suspended Covenants”) as   a result of a Covenant Suspension, the date on which the Notes cease to have Investment Grade Status or a Default   or Event of Default occurs and is continuing, and after which date the Suspended Covenants will thereafter be rein-   stated as if such covenants had never been suspended and such Suspended Covenants will be applicable pursuant to   the terms of this Indenture (including in connection with performing any calculation or assessment to determine   compliance with the terms of this Indenture).   “Rule 144A” means Rule 144A under the Securities Act.   “S&P” means Standard & Poor’s Investors Ratings Services or any of its successors or assigns that is a Na-   tionally Recognized Statistical Rating Organization.   “Sale and Leaseback Transaction” means any arrangement providing for the leasing by the Company or   any of its Restricted Subsidiaries of any real or tangible personal property, which property has been or is to be sold   or transferred by the Company or such Restricted Subsidiary to a third Person in contemplation of such leasing.   “SEC” means the U.S. Securities and Exchange Commission or any successor thereto.   “Secured Indebtedness” means any Indebtedness secured by a Lien other than Indebtedness with respect to   Cash Management Services.   “Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations of the SEC   promulgated thereunder, as amended.   “Significant Subsidiary” means any Restricted Subsidiary that would be a “significant subsidiary” as de-   fined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as such regulation is in   effect on the Issue Date.   “Similar Business” means (a) any businesses, services or activities engaged in by the Company or any of its   Subsidiaries or any Associates on the Issue Date and (b) any businesses, services and activities engaged in by the   Company or any of its Subsidiaries or any Associates that are related, complementary, incidental, ancillary or simi-   lar to any of the foregoing or are extensions or developments of any thereof.   “Stated Maturity” means, with respect to any security, the date specified in such security as the fixed date   on which the payment of principal of such security is due and payable, including pursuant to any mandatory redemp-   tion provision, but shall not include any contingent obligations to repay, redeem or repurchase any such principal   prior to the date originally scheduled for the payment thereof.   “Subordinated Indebtedness” means, with respect to any person, any Indebtedness (whether outstanding on   the Issue Date or thereafter Incurred) which is expressly subordinated in right of payment to the Notes pursuant to a   written agreement.     





 







   -32-                “Subsidiary” means, with respect to any Person:   (1) any corporation, association, or other business entity (other than a partnership, joint ven-   ture, limited liability company or similar entity) of which more than 50% of the total voting power of   shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the elec-   tion of directors, managers or trustees thereof is at the time of determination owned or controlled, directly   or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination   thereof; or   (2) any partnership, joint venture, limited liability company or similar entity of which:   (a) more than 50% of the capital accounts, distribution rights, total equity and vot-   ing interests or general or limited partnership interests, as applicable, are owned or controlled, di-   rectly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a   combination thereof whether in the form of membership, general, special or limited partnership in-   terests or otherwise; and   (b) such Person or any Subsidiary of such Person is a controlling general partner or   otherwise controls such entity.   “Taxes” means all present and future taxes, levies, imposts, deductions, charges, duties and withholdings   and any charges of a similar nature (including interest, penalties and other liabilities with respect thereto) that are   imposed by any government or other taxing authority.   “TIA” means the Trust Indenture Act of 1939, as amended.   “Total Assets” means, as of any date, the total consolidated assets of the Company and its Restricted Sub-   sidiaries on a consolidated basis, as shown on the most recent consolidated balance sheet of the Company and its   Restricted Subsidiaries, determined on a pro forma basis in a manner consistent with the pro forma basis contained   in the definition of “Leverage Ratio.”   “Transaction Expenses” means any fees or expenses incurred or paid by the Company or any Restricted   Subsidiary in connection with the Transactions.   “Transactions” means the issuance of the Notes, borrowings under the Credit Agreement, repayment of ex-   isting indebtedness and other related transactions, in each case, as described in the Offering Memorandum.   “Trust Officer” means, when used with respect to the Trustee, any vice president, assistant vice president,   any trust officer or any other officer of the Trustee who shall have direct responsibility for the administration of this   Indenture, or any other person to whom any corporate trust matter relating to this Indenture is referred because of   such person’s knowledge of and familiarity with the particular subject.   “Trustee” means the party named as such in this Indenture until a successor replaces it and, thereafter,   means the successor.   “UCC” means the Uniform Commercial Code as in effect from time to time in the State of New York.   “Unrestricted Subsidiary” means:   (1) any Subsidiary of the Company that at the time of determination is an Unrestricted Sub-   sidiary (as designated by the Company in the manner provided below); and   (2) any Subsidiary of an Unrestricted Subsidiary.     





 







   -33-                The Company may designate any Subsidiary of the Company, respectively, (including any newly acquired or newly   formed Subsidiary or a Person becoming a Subsidiary through merger, consolidation or other business combination   transaction, or Investment therein) to be an Unrestricted Subsidiary only if:   (1) such Subsidiary or any of its Subsidiaries does not own any Capital Stock or Indebted-   ness of, or own or hold any Lien on any property of, the Company or any other Subsidiary of the Company   which is not a Subsidiary of the Subsidiary to be so designated or otherwise an Unrestricted Subsidiary; and   (2) such designation and the Investment of the Company in such Subsidiary complies with   Section 3.3 hereof.   “U.S. Government Obligations” means securities that are (1) direct obligations of the United States of   America for the timely payment of which its full faith and credit is pledged or (2) obligations of a Person controlled   or supervised by and acting as an agency or instrumentality of the United States of America the timely payment of   which is unconditionally Guaranteed as a full faith and credit obligation of the United States of America, which, in   either case, are not callable or redeemable at the option of the issuers thereof, and shall also include a depositary   receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act), as custodian with respect to any such   U.S. Government Obligations or a specific payment of principal of or interest on any such U.S. Government Obliga-   tions held by such custodian for the account of the holder of such depositary receipt; provided that (except as re-   quired by law) such custodian is not authorized to make any deduction from the amount payable to the holder of   such depositary receipt from any amount received by the custodian in respect of the U.S. Government Obligations or   the specific payment of principal of or interest on the U.S. Government Obligations evidenced by such depositary   receipt.   “Voting Stock” of a Person means all classes of Capital Stock of such Person then outstanding and normal-   ly entitled to vote in the election of directors.   “Weighted Average Life to Maturity” means, when applied to any Indebtedness, Disqualified Stock or Pre-   ferred Stock, as the case may be, at any date, the quotient obtained by dividing:   (1) the sum of the products of the number of years from the date of determination to the date   of each successive scheduled principal payment of such Indebtedness or redemption or similar payment   with respect to such Disqualified Stock or Preferred Stock multiplied by the amount of such payment, by   (2) the sum of all such payments.   “Wholly Owned Restricted Domestic Subsidiary” means a Domestic Subsidiary of the Company, all of the   Capital Stock of which (other than directors’ qualifying shares or shares required by any applicable law or regulation   to be held by a Person other than the Company or another Domestic Subsidiary) is owned by the Company or anoth-   er Domestic Subsidiary.   SECTION 1.2. Other Definitions.   Term   Defined in   Section   “Additional Restricted Notes” ....................................................................................  2.1(b)   “Affiliate Transaction” ...............................................................................................  3.8(a)   “Agent Members” .......................................................................................................  2.1(e)(2)   “Approved Foreign Bank” ..........................................................................................  “Cash Equiva-   lents”     





 







   -34-                Term   Defined in   Section   “Asset Disposition Offer” ...........................................................................................  3.5(b)   “Authenticating Agent” ..............................................................................................  2.2   “Automatic Exchange” ...............................................................................................  2.6(e)   “Automatic Exchange Date” .......................................................................................  2.6(e)   “Automatic Exchange Notice” ...................................................................................  2.6(e)   “Automatic Exchange Notice Date” ...........................................................................  2.6(e)   “Change of Control Offer” .........................................................................................  3.9(a)   “Change of Control Payment” ....................................................................................  3.9(a)   “Change of Control Payment Date”............................................................................  3.9(a)(2)   “Clearstream” .............................................................................................................  2.1(b)   “Covenant Defeasance” ..............................................................................................  8.3   “Defaulted Interest” ....................................................................................................  2.15   “Euroclear” .................................................................................................................  2.1(b)   “Event of Default” ......................................................................................................  6.1   “Excess Proceeds” ......................................................................................................  3.5(b)   “Foreign Dispostion” ..................................................................................................  3.5(d)(i)   “Global Notes” ...........................................................................................................  2.1(b)   “Guaranteed Obligations” ...........................................................................................  10.1   “Increased Amount” ...................................................................................................  3.6   “Initial Default” ..........................................................................................................  6.1(b)   “Initial Lien” ...............................................................................................................  3.6   “Institutional Accredited Investor Global Note” ........................................................  2.1(b)   “Institutional Accredited Investor Notes” ...................................................................  2.1(b)   “Issuer Order” .............................................................................................................  2.2   “Legal Defeasance” ....................................................................................................  8.2     





 







   -35-                Term   Defined in   Section   “Legal Holiday” ..........................................................................................................  12.8   “Notes Register” .........................................................................................................  2.3   “Other Guarantee” ......................................................................................................  10.2(b)(5)   “Permanent Regulation S Global Note” .....................................................................  2.1(b)   “protected purchaser” .................................................................................................  2.11   “Redemption Date”.....................................................................................................  5.7(a)   “Registrar” ..................................................................................................................  2.3   “Regulation S Global Note” .......................................................................................  2.1(b)   “Regulation S Notes” ..................................................................................................  2.1(b)   “Resale Restriction Termination Date” ......................................................................  2.6(b)   “Restricted Global Note” ............................................................................................  2.6(e)   “Restricted Payments” ................................................................................................  3.3(a)   “Restricted Period” .....................................................................................................  2.1(b)   “Rule 144A Global Note” ...........................................................................................  2.1(b)   “Rule 144A Notes” .....................................................................................................  2.1(b)   “Special Interest Payment Date” ................................................................................  2.15(a)   “Special Record Date” ................................................................................................  2.15(a)   “Successor Company” ................................................................................................  4.1(a)(1)   “Suspension Period” ...................................................................................................  3.21   “Temporary Regulation S Global Note” .....................................................................  2.1(b)   “Topic 810” ................................................................................................................  “Consolidated   EBITDA”   “Unrestricted Global Note” ........................................................................................  2.6(e)      .   SECTION 1.4. Rules of Construction.  Unless the context otherwise requires:   (1) a term has the meaning assigned to it;     





 







   -36-                (2) an accounting term not otherwise defined has the meaning assigned to it in accordance   with GAAP;   (3) “or” is not exclusive;   (4) “including” means including without limitation;   (5) words in the singular include the plural and words in the plural include the singular;   (6) “will” shall be interpreted to express a command;   (7) the principal amount of any non-interest bearing or other discount security at any date   shall be the principal amount thereof that would be shown on a balance sheet of the issuer dated such date   prepared in accordance with GAAP;   (8) the principal amount of any preferred stock shall be (i) the maximum liquidation value of   such preferred stock or (ii) the maximum mandatory redemption or mandatory repurchase price with re-   spect to such preferred stock, whichever is greater;   (9) all amounts expressed in this Indenture or in any of the Notes in terms of money refer to   the lawful currency of the United States of America;   (10) the words “herein,” “hereof” and “hereunder” and other words of similar import refer to   this Indenture as a whole and not to any particular Article, Section or other subdivision; and   (11) unless otherwise specifically indicated, the term “consolidated” with respect to any Per-   son refers to such Person consolidated with its Restricted Subsidiaries, and excludes from such consolida-   tion any Unrestricted Subsidiary as if such Unrestricted Subsidiary were not an Affiliate of such Person.   ARTICLE II      THE NOTES   SECTION 2.1. Form, Dating and Terms.   (a) The aggregate principal amount of Notes that may be authenticated and delivered under this In-   denture is unlimited.  The Initial Notes issued on the date hereof will be in an aggregate principal amount of   $300,000,000.  In addition, the Company may issue, from time to time in accordance with the provisions of this In-   denture, Additional Notes (as provided herein).  Furthermore, Notes may be authenticated and delivered upon regis-   tration of transfer, exchange or in lieu of, other Notes pursuant to Sections 2.2, 2.6, 2.11, 2.13, 5.6 or 9.5, in connec-   tion with an Asset Disposition Offer pursuant to Section 3.5 or in connection with a Change of Control Offer pursu-   ant to Section 3.9.   Notwithstanding anything to the contrary contained herein, the Company may not issue any Additional   Notes, unless such issuance is in compliance with Sections 3.2 and 3.6.   With respect to any Additional Notes, the Company shall set forth in (1) a Board Resolution and (2) (i) an   Officer’s Certificate and (ii) one or more indentures supplemental hereto, the following information:   (A) the aggregate principal amount of such Additional Notes to be authenticated and deliv-   ered pursuant to this Indenture;   (B) the issue price and the issue date of such Additional Notes, including the date from which   interest shall accrue; and     





 







   -37-                (C) whether such Additional Notes shall be Restricted Notes.   In authenticating and delivering Additional Notes, the Trustee shall be entitled to receive and shall be fully   protected in relying upon, in addition to the Opinion of Counsel and Officer’s Certificate required by Section 12.2,   an Opinion of Counsel as to the due authorization, execution, delivery, validity and enforceability of such Additional   Notes.   The Initial Notes and  the Additional Notes shall be considered collectively as a single class for all purpos-   es of this Indenture.  Holders of the Initial Notes and the Additional Notes will vote and consent together on all mat-   ters to which such Holders are entitled to vote or consent as one class, and none of the Holders of the Initial Notes or   the Additional Notes shall have the right to vote or consent as a separate class on any matter to which such Holders   are entitled to vote or consent.   If any of the terms of any Additional Notes are established by action taken pursuant to a Board Resolution   of the Company, a copy of an appropriate record of such action shall be certified by the Secretary or any Assistant   Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Officer’s Certificate and the   indenture supplemental hereto setting forth the terms of the Additional Notes.   (b) The Initial Notes are being offered and sold by the Company pursuant to a Purchase Agreement,   dated March 24, 2015, among the Company, the guarantors named therein and the Initial Purchasers.  The Initial   Notes and any Additional Notes (if issued as Restricted Notes) (the “Additional Restricted Notes”) will be resold   initially only to (A) Persons they reasonably believe to be QIBs in reliance on Rule 144A and (B) Non-U.S. Persons   in reliance on Regulation S.  Such Initial Notes and Additional Restricted Notes may thereafter be transferred to,   among others, QIBs, purchasers in reliance on Regulation S, AIs and IAIs in accordance with Rule 501 under the   Securities Act, in each case, in accordance with the procedure described herein.  Additional Notes offered after the   date hereof may be offered and sold by the Company from time to time pursuant to one or more purchase agree-   ments in accordance with applicable law.   Initial Notes and Additional Restricted Notes offered and sold to QIBs in the United States of America in   reliance on Rule 144A (the “Rule 144A Notes”) shall be issued in the form of a permanent global Note substantially   in the form of Exhibit A, which is hereby incorporated by reference and made a part of this Indenture, including   appropriate legends as set forth in Section 2.1(d) (the “Rule 144A Global Note”), deposited with the Trustee, as cus-   todian for DTC, duly executed by the Company and authenticated by the Trustee as hereinafter provided.  The   Rule 144A Global Note may be represented by more than one certificate, if so required by DTC’s rules regarding   the maximum principal amount to be represented by a single certificate.  The aggregate principal amount of the   Rule 144A Global Note may from time to time be increased or decreased by adjustments made on the records of the   Trustee, as custodian for DTC or its nominee, as hereinafter provided.   Initial Notes and any Additional Restricted Notes offered and sold to non-U.S. Persons outside the United   States of America (the “Regulation S Notes”) in reliance on Regulation S shall initially be issued in the form of a   temporary global Note (the “Temporary Regulation S Global Note”).  Beneficial interests in the Temporary Regula-   tion S Global Note will be exchanged for beneficial interests in a corresponding permanent global Note substantially   in the form of Exhibit A including appropriate legends as set forth in Section 2.1(d) (the “Permanent Regulation S   Global Note” and, together with the Temporary Regulation S Global Note, each a “Regulation S Global Note”)   within a reasonable period after the expiration of the Restricted Period (as defined below) upon delivery of the certi-   fication contemplated by Section 2.7.  Each Regulation S Global Note will be deposited upon issuance with, or on   behalf of, the Trustee as custodian for DTC in the manner described in this Article II.  Prior to the 40th day after the   later of the commencement of the offering of the Initial Notes and the Issue Date (such period through and including   such 40th day, the “Restricted Period”), interests in the Temporary Regulation S Global Note may only be trans-   ferred to non-U.S. persons pursuant to Regulation S, unless exchanged for interests in a Global Note in accordance   with the transfer and certification requirements described herein.   Investors may hold their interests in the Regulation S Global Note through organizations other than Euro-   clear or Clearstream that are participants in DTC’s system or directly through Euroclear or Clearstream, if they are   participants in such systems, or indirectly through organizations which are participants in such systems.  If such in-   terests are held through Euroclear or Clearstream, Euroclear and Clearstream will hold such interests in the applica-    





 







   -38-                ble Regulation S Global Note on behalf of their participants through customers’ securities accounts in their respec-   tive names on the books of their respective depositaries.  Such depositaries, in turn, will hold such interests in the   applicable Regulation S Global Note in customers’ securities accounts in the depositaries’ names on the books of   DTC.   The Regulation S Global Note may be represented by more than one certificate, if so required by DTC’s   rules regarding the maximum principal amount to be represented by a single certificate.  The aggregate principal   amount of the Regulation S Global Note may from time to time be increased or decreased by adjustments made on   the records of the Trustee, as custodian for DTC or its nominee, as hereinafter provided.   Initial Notes and Additional Restricted Notes resold to IAIs (the “Institutional Accredited Investor Notes”)   in the United States of America shall be issued in the form of a permanent global Note substantially in the form of   Exhibit A including appropriate legends as set forth in Section 2.1(d) (the “Institutional Accredited Investor Global   Note”) deposited with the Trustee, as custodian for DTC, duly executed by the Company and authenticated by the   Trustee as hereinafter provided.  The Institutional Accredited Investor Global Note may be represented by more than   one certificate, if so required by DTC’s rules regarding the maximum principal amount to be represented by a single   certificate.  The aggregate principal amount of the Institutional Accredited Investor Global Note may from time to   time be increased or decreased by adjustments made on the records of the Trustee, as custodian for DTC or its nom-   inee, as hereinafter provided.   Initial Notes and Additional Restricted Notes resold to AIs in the United States of America shall be issued   in the form of a Definitive Note substantially in the form of Exhibit A including the legend as set forth in Sec-   tion 2.1(d)(5) (an “Accredited Investor Note”).   The Rule 144A Global Note, the Regulation S Global Note and the Institutional Accredited Investor Global   Note are sometimes collectively herein referred to as the “Global Notes.”   The principal of (and premium, if any) and interest on the Notes shall be payable at the office or agency of   Paying Agent designated by the Company maintained for such purpose (which shall initially be the office of the   Trustee maintained for such purpose), or at such other office or agency of the Company as may be maintained for   such purpose pursuant to Section 2.3; provided, however, that, at the option of the Paying Agent, each installment of   interest may be paid by (i) check mailed to addresses of the Persons entitled thereto as such addresses shall appear   on the Notes Register or (ii) wire transfer to an account located in the United States maintained by the payee, subject   to the last sentence of this paragraph.  Payments in respect of Notes represented by a Global Note (including princi-   pal, premium, if any, and interest) will be made by wire transfer of immediately available funds to the accounts   specified by DTC.  Payments in respect of Notes represented by Definitive Notes (including principal, premium, if   any, and interest) held by a Holder of at least $1,000,000 aggregate principal amount of Notes represented by De-   finitive Notes will be made in accordance with the Notes Register, or by wire transfer to a U.S. dollar account main-   tained by the payee with a bank in the United States if such Holder elects payment by wire transfer by giving written   notice to the Trustee or the Paying Agent to such effect designating such account no later than 15 days immediately   preceding the relevant due date for payment (or such other date as the Trustee may accept in its discretion).   The Notes may have notations, legends or endorsements required by law, stock exchange rule or usage, in   addition to those set forth on Exhibit A and in Section 2.1(d).  The Company shall approve any notation, endorse-   ment or legend on the Notes.  Each Note shall be dated the date of its authentication.  The terms of the Notes set   forth in Exhibit A are part of the terms of this Indenture and, to the extent applicable, the Company, the Guarantors   and the Trustee, by their execution and delivery of this Indenture, expressly agree to be bound by such terms.   (c) Denominations.  The Notes shall be issuable only in fully registered form in minimum denomi-   nations of $2,000 and any integral multiple of $1,000 in excess thereof.   (d) Restrictive Legends.  Unless and until (i) an Initial Note or an Additional Note issued as a Re-   stricted Note is sold under an effective registration statement or (ii) the Company receives an Opinion of Counsel   satisfactory to it 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:     





 







   -39-                (1) the Rule 144A Global Note, the Regulation S Global Note and the Institutional Accredit-   ed Investor Global Note shall bear the following legend on the face thereof:   THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN   A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE UNITED   STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND THE   SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE   TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION   THEREFROM. EACH PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY   NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE   PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A   THEREUNDER. THE HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES FOR THE   BENEFIT OF TOWNSQUARE THAT (A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR   OTHERWISE TRANSFERRED ONLY (i) (a) TO A PERSON WHO IS A QUALIFIED   INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A   TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (b) IN A TRANSACTION   MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (c) OUTSIDE THE   UNITED STATES TO A NON-U.S. PERSON IN A TRANSACTION MEETING THE   REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT, OR (d) IN ACCORDANCE WITH   ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES   ACT (AND BASED UPON AN OPINION OF COUNSEL IF TOWNSQUARE SO REQUESTS), (ii) TO   TOWNSQUARE, OR (iii) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN   EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE   OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION, AND (B) THE HOLDER   WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM   IT OF THE SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN   CLAUSE (A) ABOVE. NO REPRESENTATION CAN BE MADE AS TO THE AVAILABILITY OF   THE EXEMPTION PROVIDED BY RULE 144 FOR RESALE OF THE SECURITY EVIDENCED   HEREBY.   IN THE CASE OF THE REGULATION S GLOBAL NOTE:  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 SECURITY IN AN OFFSHORE   TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT.   BY ITS ACQUISITION OF THIS SECURITY THE HOLDER AND ANY SUBSEQUENT   TRANSFEREE HEREOF WILL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT   EITHER (I) THE PURCHASER IS NOT ACQUIRING OR HOLDING SUCH NOTE OR AN INTEREST   THEREIN WITH THE ASSETS OF (A) AN “EMPLOYEE BENEFIT PLAN” (AS DEFINED IN   SECTION 3(3) OF ERISA) THAT IS SUBJECT TO ERISA, (B) A “PLAN” DESCRIBED IN   SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”),   (C) ANY ENTITY DEEMED TO HOLD “PLAN ASSETS” OF ANY OF THE FOREGOING BY   REASON OF AN EMPLOYEE BENEFIT PLAN’S OR PLAN’S INVESTMENT IN SUCH ENTITY OR   (D) A GOVERNMENTAL PLAN OR CHURCH PLAN SUBJECT TO SUCH PROVISIONS THAT ARE   SIMILAR TO SUCH PROVISIONS OF ERISA OR THE CODE (COLLECTIVELY, “SIMILAR   LAWS”) OR (II) THE ACQUISITION AND HOLDING OF SUCH NOTE BY THE PURCHASER,   THROUGHOUT THE PERIOD THAT IT HOLDS SUCH NOTE AND THE DISPOSITION OF SUCH   NOTE OR AN INTEREST THEREIN WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT   PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE,   A BREACH OF FIDUCIARY DUTY UNDER ERISA OR A VIOLATION OF ANY PROVISIONS OF   ANY APPLICABLE SIMILAR LAW.   (2) the Temporary Regulation S Global Note shall bear the following additional legend on   the face thereof:     





 







   -40-                THIS SECURITY IS A TEMPORARY GLOBAL NOTE.  PRIOR TO THE EXPIRATION OF THE   RESTRICTED PERIOD APPLICABLE HERETO, BENEFICIAL INTERESTS HEREIN MAY NOT BE   HELD BY ANY PERSON OTHER THAN (1) A NON-U.S. PERSON OR (2) A U.S. PERSON THAT   PURCHASED SUCH INTEREST IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER   THE SECURITIES ACT.  BENEFICIAL INTERESTS HEREIN ARE NOT EXCHANGEABLE FOR   PHYSICAL NOTES OTHER THAN A PERMANENT GLOBAL NOTE IN ACCORDANCE WITH THE   TERMS OF THE INDENTURE.  TERMS IN THIS LEGEND ARE USED AS USED IN REGULATION   S UNDER THE SECURITIES ACT.   (3) Each Global Note, whether or not an Initial Note, shall bear the following legend on the   face thereof:   UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE   DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW   YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE   OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &   CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE   OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS   REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR   OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL   INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.   TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT   NOT IN PART, TO DTC, TO NOMINEES OF DTC 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.   (4) Each Accredited Investor Note shall bear the following legend on the face thereof:   THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS   AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS.  NEITHER THIS   SECURITY 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, REGISTRATION.   THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT   (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE   SECURITIES ACT) (B) IT IS A NON-U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN   OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S UNDER THE   SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO SUCH   PURCHASER IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE, OR (C) IT IS AN   “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501 UNDER THE SECURITIES   ACT AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR   TO THE EXPIRATION OF THE APPLICABLE HOLDING PERIOD WITH RESPECT TO   RESTRICTED SECURITIES SET FORTH IN RULE 144 UNDER THE SECURITIES ACT, ONLY   (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE   SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT   REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN   RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR   FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN   THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) 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 AND IN   ACCORDANCE WITH THE LAWS APPLICABLE TO IT IN THE JURISDICTION IN WHICH SUCH     





 







   -41-                PURCHASE IS MADE, (D) TO AN “ACCREDITED INVESTOR” WITHIN THE MEANING OF   RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN   ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN ACCREDITED INVESTOR, 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, (E) PURSUANT TO A   REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE   SECURITIES ACT, OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE   REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S   RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (C), (D) OR   (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR   OTHER INFORMATION SATISFACTORY TO THE COMPANY, AND IN EACH OF THE   FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE   OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO   THE TRUSTEE OR REGISTRAR. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF   THE HOLDER AFTER THE EXPIRATION OF THE APPLICABLE HOLDING PERIOD WITH   RESPECT TO RESTRICTED SECURITIES SET FORTH IN RULE 144 UNDER THE SECURITIES   ACT.   BY ITS ACQUISITION OF THIS SECURITY THE HOLDER AND ANY SUBSEQUENT   TRANSFEREE HEREOF WILL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT   EITHER (I) THE PURCHASER IS NOT ACQUIRING OR HOLDING SUCH NOTE OR AN INTEREST   THEREIN WITH THE ASSETS OF (A) AN “EMPLOYEE BENEFIT PLAN” (AS DEFINED IN   SECTION 3(3) OF ERISA) THAT IS SUBJECT TO ERISA, (B) A “PLAN” DESCRIBED IN   SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”),   (C) ANY ENTITY DEEMED TO HOLD “PLAN ASSETS” OF ANY OF THE FOREGOING BY   REASON OF AN EMPLOYEE BENEFIT PLAN’S OR PLAN’S INVESTMENT IN SUCH ENTITY OR   (D) A GOVERNMENTAL PLAN OR CHURCH PLAN SUBJECT TO SUCH PROVISIONS THAT ARE   SIMILAR TO SUCH PROVISIONS OF ERISA OR THE CODE (COLLECTIVELY, “SIMILAR   LAWS”) OR (II) THE ACQUISITION AND HOLDING OF SUCH NOTE BY THE PURCHASER,   THROUGHOUT THE PERIOD THAT IT HOLDS SUCH NOTE AND THE DISPOSITION OF SUCH   NOTE OR AN INTEREST THEREIN WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT   PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE,   A BREACH OF FIDUCIARY DUTY UNDER ERISA OR A VIOLATION OF ANY PROVISIONS OF   ANY APPLICABLE SIMILAR LAW.   (e) Book-Entry Provisions.  (i) This Section 2.1(e) shall apply only to Global Notes deposited with   the Trustee, as custodian for DTC.   (1) Each Global Note initially shall (x) be registered in the name of DTC or the nominee of   DTC, (y) be delivered to the Notes Custodian for DTC and (z) bear legends as set forth in Section 2.1(d).    Transfers of a Global Note (but not a beneficial interest therein) will be limited to transfers thereof in   whole, but not in part, to the DTC, its successors or its respective nominees, except as set forth in Sec-   tion 2.1(e)(4) and 2.1(f).  If a beneficial interest in a Global Note is transferred or exchanged for a benefi-   cial interest in another Global Note, the Notes Custodian will (x) record a decrease in the principal amount   of the Global Note being transferred or exchanged equal to the principal amount of such transfer or ex-   change and (y) record a like increase in the principal amount of the other Global Note.  Any beneficial in-   terest in one Global Note that is transferred to a Person who takes delivery in the form of an interest in an-   other Global Note, or exchanged for an interest in another Global Note, will, upon transfer or exchange,   cease to be an interest in such Global Note and become an interest in the other Global Note and, according-   ly, will thereafter be subject to all transfer and exchange restrictions, if any, and other procedures applica-   ble to beneficial interests in such other Global Note for as long as it remains such an interest.   (2) Members of, or participants in, DTC (“Agent Members”) shall have no rights under this   Indenture with respect to any Global Note held on their behalf by DTC or by the Notes Custodian as the   custodian of DTC or under such Global Note, and DTC may be treated by the Company, the Trustee and   any agent of the Company or the Trustee as the absolute owner of such Global Note for all purposes what-    





 







   -42-                soever.  Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any agent   of the Company or the Trustee from giving effect to any written certification, proxy or other authorization   furnished by DTC or impair, as between DTC and its Agent Members, the operation of customary practices   of DTC governing the exercise of the rights of a holder of a beneficial interest in any Global Note.   (3) In connection with any transfer of a portion of the beneficial interest in a Global Note   pursuant to Section 2.1(f) to beneficial owners who are required to hold Definitive Notes, the Notes Custo-   dian shall reflect on its books and records the date and a decrease in the principal amount of such Global   Note in an amount equal to the principal amount of the beneficial interest in the Global Note to be trans-   ferred, and the Company shall execute, and the Trustee shall authenticate and make available for delivery,   one or more Definitive Notes of like tenor and amount.   (4) In connection with the transfer of an entire Global Note to beneficial owners pursuant to   Section 2.1(f), 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 make available for delivery, to each benefi-   cial owner identified by DTC in exchange for its beneficial interest in such Global Note, an equal aggregate   principal amount of Definitive Notes of authorized denominations.   (5) The registered Holder of a Global Note may grant proxies and otherwise authorize any   person, including Agent Members and persons that may hold interests through Agent Members, to take any   action which a Holder is entitled to take under this Indenture or the Notes.   (6) Any Holder of a Global Note shall, by acceptance of such Global Note, agree that trans-   fers of beneficial interests in such Global Note may be effected only through a book-entry system main-   tained by (i) the Holder of such Global Note (or its agent) or (ii) any holder of a beneficial interest in such   Global Note, and that ownership of a beneficial interest in such Global Note shall be required to be reflect-   ed in a book entry.   (f) Definitive Notes.  (ii) Except as provided below, owners of beneficial interests in Global Notes   will not be entitled to receive Definitive Notes.  Definitive Notes shall be transferred to all beneficial owners in ex-   change for their beneficial interests in a Global Note if (A) DTC notifies the Company that it is unwilling or unable   to continue as depositary for such Global Note or DTC ceases to be a clearing agency registered under the Exchange   Act, at a time when DTC is required to be so registered in order to act as depositary, and in each case a successor   depositary is not appointed by the Company within 90 days of such notice, (B) the Company in its sole discretion   executes and deliver to the Trustee and Registrar an Officer’s Certificate stating that such Global Note shall be so   exchangeable or (C) an Event of Default has occurred and is continuing and the Registrar has received a written   request from DTC.  In the event of the occurrence of any of the events specified in the second preceding sentence or   in clause (A), (B) or (C) of the preceding sentence, the Company shall promptly make available to the Trustee a rea-   sonable supply of Definitive Notes.  In addition, any Note transferred to an affiliate (as defined in Rule 405 under   the Securities Act) of the Company or evidencing a Note that has been acquired by an affiliate in a transaction or   series of transactions not involving any public offering must, until one year after the last date on which either the   Company or any affiliate of the Company was an owner of the Note, be in the form of a Definitive Note and bear the   legend regarding transfer restrictions in Section 2.1(d).  If required to do so pursuant to any applicable law or regula-   tion, beneficial owners may also obtain Definitive Notes in exchange for their beneficial interests in a Global Note   upon written request in accordance with DTC’s and the Registrar’s procedures.   (1) Any Definitive Note delivered in exchange for an interest in a Global Note pursuant to   Section 2.1(e) shall, except as otherwise provided by Section 2.6(d), bear the applicable legend regarding   transfer restrictions applicable to the Global Note set forth in Section 2.1(d).   (2) If a Definitive Note is transferred or exchanged for a beneficial interest in a Global Note,   the Trustee will (x) cancel such Definitive Note, (y) record an increase in the principal amount of such   Global Note equal to the principal amount of such transfer or exchange and (z) in the event that such trans-   fer or exchange involves less than the entire principal amount of the canceled Definitive Note, the Compa-   ny shall execute, and the Trustee shall authenticate and make available for delivery, to the transferring   Holder a new Definitive Note representing the principal amount not so transferred.     





 







   -43-                (3) If a Definitive Note is transferred or exchanged for another Definitive Note, (x) the Trus-   tee will cancel the Definitive Note being transferred or exchanged, (y) the Company shall execute, and the   Trustee shall authenticate and make available for delivery, one or more new Definitive Notes in authorized   denominations having an aggregate principal amount equal to the principal amount of such transfer or ex-   change to the transferee (in the case of a transfer) or the Holder of the canceled Definitive Note (in the case   of an exchange), registered in the name of such transferee or Holder, as applicable, and (z) if such transfer   or exchange involves less than the entire principal amount of the canceled Definitive Note, the Company   shall execute, and the Trustee shall authenticate and make available for delivery to the Holder thereof, one   or more Definitive Notes in authorized denominations having an aggregate principal amount equal to the   untransferred or unexchanged portion of the canceled Definitive Notes, registered in the name of the Hold-   er thereof.   (4) Notwithstanding anything to the contrary in this Indenture, in no event shall a Definitive   Note be delivered upon exchange or transfer of a beneficial interest in the Temporary Regulation S Global   Note prior to the end of the Restricted Period.   SECTION 2.2. Execution and Authentication.  One Officer shall sign the Notes for the Company by   manual or facsimile signature.  If the Officer whose signature is on a Note no longer holds that office at the time the   Trustee authenticates the Note, the Note shall be valid nevertheless.   A Note shall not be valid until an authorized officer of the Trustee manually authenticates the Note.  The   signature of the Trustee on a Note shall be conclusive evidence that such Note has been duly and validly authenti-   cated and issued under this Indenture.  A Note shall be dated the date of its authentication.   At any time and from time to time after the execution and delivery of this Indenture, the Trustee shall au-   thenticate and make available for delivery:  (1) Initial Notes for original issue on the Issue Date in an aggregate   principal amount of $300,000,000, (2) subject to the terms of this Indenture, Additional Notes for original issue in   an unlimited principal amount, (3)  under the circumstances set forth in Section 2.6(e), Initial Notes in the form of an   Unrestricted Global Note, in each case upon a written order of the Company signed by one Officer (the “Issuer Or-   der”).  Such Issuer Order shall specify whether the Notes will be in the form of Definitive Notes or Global Notes,   the amount of the Notes to be authenticated, the date on which the original issue of Notes is to be authenticated, the   holder of the Notes and whether the Notes are to be Initial Notes or Additional Notes.   The Trustee may appoint an agent (the “Authenticating Agent”) reasonably acceptable to the Company to   authenticate the Notes.  Any such appointment shall be evidenced by an instrument signed by a Trust Officer, a copy   of which shall be furnished to the Company.  Unless limited by the terms of such appointment, any such Authenti-   cating Agent may authenticate Notes whenever the Trustee may do so.  Each reference in this Indenture to authenti-   cation by the Trustee includes authentication by the Authenticating Agent.  An Authenticating Agent has the same   rights as any Registrar, Paying Agent or agent for service of notices and demands.   In case the Company or any Guarantor, pursuant to Article IV or Section 10.2, as applicable, shall be con-   solidated or merged with or into any other Person or shall convey, transfer, lease or otherwise dispose of its proper-   ties and assets substantially as an entirety to any Person, and the successor Person resulting from such consolidation,   or surviving such merger, or into which the Company or any Guarantor shall have been merged, or the Person which   shall have received a conveyance, transfer, lease or other disposition as aforesaid, shall have executed an indenture   supplemental hereto with the Trustee pursuant to Article IV, any of the Notes authenticated or delivered prior to   such consolidation, merger, conveyance, transfer, lease or other disposition may (but shall not be required), from   time to time, at the request of the successor Person, be exchanged for other Notes executed in the name of the suc-   cessor Person with such changes in phraseology and form as may be appropriate to reflect such successor Person,   but otherwise in substance of like tenor as the Notes surrendered for such exchange and of like principal amount;   and the Trustee, upon the Issuer Order of the successor Person, shall authenticate and make available for delivery   Notes as specified in such order for the purpose of such exchange.  If Notes shall at any time be authenticated and   delivered in any new name of a successor Person pursuant to this Section 2.2 in exchange or substitution for or upon   registration of transfer of any Notes, such successor Person, at the option of the Holders but without expense to   them, shall provide for the exchange of all Notes at the time outstanding for Notes authenticated and delivered in   such new name.     





 







   -44-                SECTION 2.3. Registrar and Paying Agent.  The Company shall maintain an office or agency where   Notes may be presented for registration of transfer or for exchange (the “Registrar”) and an office or agency where   Notes may be presented for payment.  The Registrar shall keep a register of the Notes and of their transfer and ex-   change (the “Notes Register”).  The Company may have one or more co-registrars and one or more additional pay-   ing agents.  The term “Paying Agent” includes any additional paying agent and the term “Registrar” includes any   co-registrar.   The Company shall enter into an appropriate agency agreement with any Registrar or Paying Agent not a   party to this Indenture.  The agreement shall implement the provisions of this Indenture that relate to such agent.    The Company shall notify the Trustee in writing of the name and address of each such agent.  If the Company fails   to maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be entitled to appropriate compensa-   tion therefor pursuant to Section 7.7.  The Company or any Guarantor may act as Paying Agent, Registrar or transfer   agent.   The Company initially appoints the Trustee as Registrar and Paying Agent for the Notes.  The Company   may change any Registrar or Paying Agent without prior notice to the Holders, but upon written notice to such Reg-   istrar or Paying Agent and to the Trustee; provided, however, that no such removal shall become effective until   (i) acceptance of any appointment by a successor as evidenced by an appropriate agreement entered into by the   Company and such successor Registrar or Paying Agent, as the case may be, and delivered to the Trustee and the   passage of any waiting or notice periods required by DTC procedures or (ii) written notification to the Trustee that   the Trustee shall serve as Registrar or Paying Agent until the appointment of a successor in accordance with   clause (i) above.  The Registrar or Paying Agent may resign at any time upon written notice to the Company and the   Trustee.   SECTION 2.4. Paying Agent to Hold Money in Trust.  By no later than 11:00 a.m. (Eastern time) on   the date on which any principal of, premium, if any, or interest on any Note is due and payable, the Company shall   deposit with the Paying Agent a sum sufficient in immediately available funds to pay such principal, premium or   interest when due.  The Company shall require each Paying Agent (other than the Trustee) to agree in writing that   such Paying Agent shall hold in trust for the benefit of Holders or the Trustee all money held by such Paying Agent   for the payment of principal of, premium, if any, or interest on the Notes (whether such assets have been distributed   to it by the Company or other obligors on the Notes), shall notify the Trustee in writing of any default by the Com-   pany or any Guarantor in making any such payment and shall during the continuance of any default by the Company   (or any other obligor upon the Notes) in the making of any payment in respect of the Notes, upon the written request   of the Trustee, forthwith deliver to the Trustee all sums held in trust by such Paying Agent for payment in respect of   the Notes together with a full accounting thereof.  If the Company or a Subsidiary of the Company acts as Paying   Agent, it shall segregate the money held by it as Paying Agent and hold it as a separate trust fund.  The Company at   any time may require a Paying Agent (other than the Trustee) to pay all money held by it to the Trustee and to ac-   count for any funds or assets disbursed by such Paying Agent.  Upon complying with this Section 2.4, the Paying   Agent (if other than the Company or a Subsidiary of the Company) shall have no further liability for the money de-   livered to the Trustee.  Upon any bankruptcy, reorganization or similar proceeding with respect to the Company, 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 practica-   ble the most recent list available to it of the names and addresses of Holders.  If the Trustee is not the Registrar, the   Company, on its own behalf and on behalf of each of the Guarantors, shall furnish or cause the Registrar to furnish   to the Trustee, in writing at least five Business Days before each interest payment date 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 Holders.   SECTION 2.6. Transfer and Exchange.   (a) A Holder may transfer a Note (or a beneficial interest therein) to another Person or exchange a   Note (or a beneficial interest therein) for another Note or Notes of any authorized denomination by presenting to the   Registrar a written request therefor stating the name of the proposed transferee or requesting such an exchange, ac-   companied by any certification, opinion or other document required by this Section 2.6.  The Registrar will promptly   register any transfer or exchange that meets the requirements of this Section 2.6 by noting the same in the Notes     





 







   -45-                Register maintained by the Registrar for the purpose, and no transfer or exchange will be effective until it is regis-   tered in such Notes Register.  The transfer or exchange of any Note (or a beneficial interest therein) may only be   made in accordance with this Section 2.6 and Section 2.1(e) and 2.1(f), as applicable, and, in the case of a Global   Note (or a beneficial interest therein), the applicable rules and procedures of DTC, Euroclear and Clearstream.  The   Registrar shall refuse to register any requested transfer or exchange that does not comply with this paragraph.   (b) Transfers of Rule 144A Notes and Institutional Accredited Investor Notes.  The following provi-   sions shall apply with respect to any proposed registration of transfer of a Rule 144A Note or an Institutional Ac-   credited Investor Note prior to the date that is one year after the later of the date of its original issue 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”):   (1) a registration or 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   as set forth on the reverse of the Note that it is purchasing 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 “qualified institutional   buyer” within the meaning of 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 under-   signed 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; provided that no such written representation or other written certifica-   tion shall be required in connection with the transfer of a beneficial interest in the Rule 144A Global Note   to a transferee in the form of a beneficial interest in that Rule 144A Global Note in accordance with this In-   denture and the applicable procedures of DTC;   (2) a registration of transfer of a Rule 144A Note or an Institutional Accredited Investor Note   or a beneficial interest therein to an IAI or an AI shall be made upon receipt by the Registrar or its agent of   a certificate substantially in the form set forth in Section 2.8 or Section 2.10, respectively, from the pro-   posed transferee and the delivery of an Opinion of Counsel, certification and/or other information satisfac-   tory to the Company; and   (3) a registration of 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 Registrar or its agent   of a certificate substantially in the form set forth in Section 2.9 from the proposed transferee and the deliv-   ery of an Opinion of Counsel, certification and/or other information satisfactory to the Company.   (c) Transfers of Regulation S Notes.  The following provisions shall apply with respect to any pro-   posed transfer of a Regulation S Note prior to the expiration of 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 on the reverse of the certificate, 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 “qualified institutional buyer” within the meaning of   Rule 144A, 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 or an AI shall   be made upon receipt by the Registrar or its agent of a certificate substantially in the form set forth in Sec-   tion 2.8 or Section 2.10, respectively, from the proposed transferee and the delivery of an Opinion of Coun-   sel, certification and/or other information satisfactory to the Company; 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 Registrar or its agent of a certificate substantially in the form set forth in     





 







   -46-                Section 2.9 hereof from the proposed transferee and receipt by the Registrar or its agent of an Opinion of   Counsel, certification and/or other information satisfactory to the Company.   After the expiration of the Restricted Period, interests in the Regulation S Note may be transferred in ac-   cordance with applicable law without requiring the certification set forth in Section 2.8, Section 2.9, Section 2.10 or   any additional certification.   (d) Restricted Notes Legend.  Upon the transfer, exchange or replacement of Notes not bearing a   Restricted Notes Legend, the Registrar shall deliver Notes that do not bear a Restricted Notes Legend.  Upon the   transfer, exchange or replacement of Notes bearing a Restricted Notes Legend, the Registrar shall deliver only Notes   that bear a Restricted Notes Legend unless (1)  an Initial Note is being transferred pursuant to an effective registra-   tion statement, (2) Initial Notes are being exchanged for Notes that do not bear the Restricted Notes Legend in ac-   cordance with Section 2.6(e) or (3) 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.  Any Additional Notes sold in a registered offering   shall not be required to bear the Restricted Notes Legend.   (e) Automatic Exchange from Global Note Bearing Restricted Notes Legend to Global Note Not   Bearing Restricted Notes Legend.  Upon the Company’s satisfaction that the Restricted Notes Legend shall no long-   er be required in order to maintain compliance with the Securities Act, beneficial interests in a Global Note bearing   the Restricted Notes Legend (a “Restricted Global Note”) may be automatically exchanged into beneficial interests   in a Global Note not bearing the Restricted Notes Legend (an “Unrestricted Global Note”) without any action re-   quired by or on behalf of the Holder (the “Automatic Exchange”) at any time on or after the date that is the 366th   calendar day after (1) with respect to the Notes issued on the Issue Date, the Issue Date or (2) with respect to Addi-   tional Notes, if any, the issue date of such Additional Notes, or, in each case, if such day is not a Business Day, on   the next succeeding Business Day (the “Automatic Exchange Date”).  Upon the Company’s satisfaction that the   Restricted Notes Legend shall no longer be required in order to maintain compliance with the Securities Act, the   Company shall (i) provide written notice to DTC and the Trustee at least fifteen (15) calendar days prior to the Au-   tomatic Exchange Date, instructing DTC to exchange all of the outstanding beneficial interests in a particular Re-   stricted Global Note to the Unrestricted Global Note, which the Company shall have previously otherwise made   eligible for exchange with the DTC, (ii) provide prior written notice (the “Automatic Exchange Notice”) to each   Holder at such Holder’s address appearing in the register of Holders at least fifteen (15) calendar days prior to the   Automatic Exchange Date (the “Automatic Exchange Notice Date”), which notice must include (w) the Automatic   Exchange Date, (x) the section of this Indenture pursuant to which the Automatic Exchange shall occur, (y) the   “CUSIP” number of the Restricted Global Note from which such Holder’s beneficial interests will be transferred   and (z) the “CUSIP” number of the Unrestricted Global Note into which such Holder’s beneficial interests will be   transferred, and (iii) on or prior to the Automatic Exchange Date, deliver to the Trustee for authentication one or   more Unrestricted Global Notes, duly executed by the Company and an Issuer Order requesting the Trustee to au-   thenticate, in an aggregate principal amount equal to the aggregate principal amount of Restricted Global Notes to   be exchanged into such Unrestricted Global Notes.  At the Company’s written request on no less than five (5) calen-   dar days’ notice prior to the Automatic Exchange Notice Date, the Trustee shall deliver, in the Company’s name and   at its expense, the Automatic Exchange Notice to each Holder at such Holder’s address appearing in the register of   Holders; provided that the Company has delivered to the Trustee the information required to be included in such   Automatic Exchange Notice.   Notwithstanding anything to the contrary in this Section 2.6(e), during the fifteen (15) calendar day period   prior to the Automatic Exchange Date, no transfers or exchanges other than pursuant to this Section 2.6(e) shall be   permitted without the prior written consent of the Company.  As a condition to any Automatic Exchange, the Com-   pany shall provide, and the Trustee shall be entitled to conclusively rely upon, an Officer’s Certificate and Opinion   of Counsel to the Company to the effect that the Automatic Exchange shall be effected in compliance with the Secu-   rities Act and that the restrictions on transfer contained herein and in the Restricted Notes Legend shall no longer be   required in order to maintain compliance with the Securities Act and that the aggregate principal amount of the par-   ticular Restricted Global Note is to be transferred to the particular Unrestricted Global Note by adjustment made on   the records of the Trustee, as custodian for the Depositary to reflect the Automatic Exchange. Upon such exchange   of beneficial interests pursuant to this Section 2.6(e), the aggregate principal amount of the Global Notes shall be   increased or decreased by adjustments made on the records of the Trustee, as custodian for the Depositary, to reflect     





 







   -47-                the relevant increase or decrease in the principal amount of such Global Note resulting from the applicable ex-   change.  The Restricted Global Note from which beneficial interests are transferred pursuant to an Automatic Ex-   change shall be cancelled following the Automatic Exchange.   (f) Retention of Written Communications.  The Registrar shall retain copies of all letters, notices   and other written communications received pursuant to Section 2.1 or this Section 2.6.  The Company shall have the   right to inspect and make copies of all such letters, notices or other written communications at any reasonable time   upon the giving of reasonable prior written notice to the Registrar.   (g) Obligations with Respect to Transfers and Exchanges of Notes.  To permit registrations of trans-   fers and exchanges, the Company shall, subject to the other terms and conditions of this Article II, execute and the   Trustee shall authenticate Definitive Notes and Global Notes at the Company’s and Registrar’s written request.   No service charge shall be made to a Holder for any registration of transfer or exchange, but the Company   may require the Holder to pay a sum sufficient to cover any transfer tax assessments or similar governmental charge   payable in connection therewith (other than any such transfer taxes, assessments or similar governmental charges   payable upon exchange or transfer pursuant to Sections 2.2, 2.6, 2.11, 2.13, 3.5, 5.6 or 9.5).   The Company (and the Registrar) shall not be required to register the transfer of or exchange of any Note   (A) for a period beginning (1) 15 calendar days before the mailing of a notice of an offer to repurchase or redeem   Notes and ending at the close of business on the day of such mailing or (2) 15 calendar days before an interest pay-   ment date and ending on such interest payment date or (B) called for redemption, except the unredeemed portion of   any Note being redeemed in part.   Prior to the due presentation for registration of transfer of any Note, the Company, the Trustee, the Paying   Agent or the Registrar may deem and treat the person in whose name a Note is registered as the owner of such Note   for the purpose of receiving payment of principal of, premium, if any, and (subject to paragraph 2 of the forms of   Notes attached hereto as Exhibits A, B and C) interest on such Note and for all other purposes whatsoever, including   without limitation the transfer or exchange of such Note, whether or not such Note is overdue, and none of the   Company, the Trustee, the Paying Agent or the Registrar shall be affected by notice to the contrary.   Any Definitive Note delivered in exchange for an interest in a Global Note pursuant to Section 2.1(f) shall,   except as otherwise provided by Section 2.6(d), bear the applicable legend regarding transfer restrictions applicable   to the Definitive Note set forth in Section 2.1(d).   All Notes issued upon any transfer or exchange pursuant to the terms of this Indenture shall evidence the   same debt and shall be entitled to the same benefits under this Indenture as the Notes surrendered upon such transfer   or exchange.   (h) No Obligation of the Trustee.  (1)  Neither the Trustee nor the Registrar shall have any responsi-   bility or obligation to any beneficial owner of a Global Note, a member of, or a participant in, DTC or other Person   with respect to the accuracy of the records of DTC or its nominee or of any participant or member thereof, with re-   spect to any ownership interest in the Notes or with respect to the delivery to any participant, member, beneficial   owner or other Person (other than DTC) of any notice (including any notice of redemption or purchase) or the pay-   ment of any amount or delivery of any Notes (or other security or property) under or with respect to such Notes.  All   notices and communications to be given to the Holders and all payments to be made to Holders in respect of the   Notes shall be given or made only to or upon the order of the registered Holders (which shall be DTC or its nominee   in the case of a Global Note).  The rights of beneficial owners in any Global Note shall be exercised only through   DTC subject to the applicable rules and procedures of DTC.  The Trustee may rely and shall be fully protected in   relying upon information furnished by DTC with respect to its members, participants and any beneficial owners.   Neither the Trustee nor the Registrar 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 DTC participants, members or   beneficial owners in any Global Note) other than to require delivery of such certificates and other documentation or     





 







   -48-                evidence as are expressly required by, and to do so if and when expressly required by, the terms of this Indenture,   and to examine the same to determine substantial compliance as to form with the express requirements hereof. Nei-   ther the Trustee nor any of its agents shall have any responsibility for any actions taken or not taken by DTC.   SECTION 2.7. Form of Certificate to be Delivered upon Termination of Restricted Period.   [Date]   Townsquare Media, Inc.   240 Greenwich Avenue   Greenwich, CT  06830   Attention:  Chief Financial Officer   Facsimile:  (203) 861-0900   Wilmington Trust, National Association, as Trustee   246 Goose Lane, Suite 105   Guilford, Connecticut 06437-2186   Attention:  Townsquare Media, Inc. Administrator   Telecopy:  203-453-1183   with a copy to:      Kirkland & Ellis LLP   601 Lexington Avenue   New York, New York  10022   Attention:  Joshua Korff, Esq.   Facsimile:  (212) 446-4900   Re: Townsquare Media, Inc. (the “Company”)   6.500% Senior Notes due 2023 (the “Notes”)   Ladies and Gentlemen:   This letter relates to Notes represented by a temporary global Note (the “Temporary Regulation S Global   Note”).  Pursuant to Section 2.1 of the Indenture dated as of April 1, 2015 relating to the Notes (the “Indenture”), we   hereby certify that the persons who are the beneficial owners of $[________] principal amount of Notes represented   by the Temporary Regulation S Global Note are persons outside the United States to whom beneficial interests in   such Notes could be transferred in accordance with Rule 904 of Regulation S promulgated under the Securities Act   of 1933, as amended.  Accordingly, you are hereby requested to issue a Permanent Regulation S Global Note repre-   senting the undersigned’s interest in the principal amount of Notes represented by the Temporary Regulation S   Global Note, all in the manner provided by the Indenture.  We certify that we [are][are not] an Affiliate of the Com-   pany.   The Trustee and the Company are entitled to conclusively rely upon this letter and are irrevocably author-   ized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or offi-   cial inquiry with respect to the matters covered hereby.  Terms used in this letter have the meanings set forth in   Regulation S.   Very truly yours,   [Name of Transferor]     





 







   -49-                By:       Authorized Signature   SECTION 2.8. Form of Certificate to be Delivered in Connection with Transfers to IAIs.   [Date]   Townsquare Media, Inc.   240 Greenwich Avenue   Greenwich, CT  06830   Attention:  Chief Financial Officer   Facsimile (203) 861-0900   Wilmington Trust, National Association, as Trustee   246 Goose Lane, Suite 105   Guilford, Connecticut 06437-2186   Attention:  Townsquare Media, Inc. Administrator   Telecopy:  203-453-1183   Re: Townsquare Media, Inc. (the “Company”)   Ladies and Gentlemen:   This certificate is delivered to request a transfer of $[_________] principal amount of the 6.500% Senior Notes due   2023 (the “Notes”) of TOWNSQUARE MEDIA, INC. (the “Company”).   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 and, unless so reg-   istered, may not be sold 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 one year after the later of the date of original issue and the last date on which the Company or any affili-   ate of the Company were the owner of such Notes (or any predecessor thereto) (the “Resale Restriction Termination   Date”) only (a) to the Company or any Subsidiary thereof, (b) pursuant to an effective registration statement under   the Securities Act, (c) 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 of the Securities Act (a “QIB”)   that is purchasing for its own account or for the account of a QIB and 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     





 







   -50-                United States within the meaning of Regulation S under the Securities Act, (e) to an institutional “accredited inves-   tor” within the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act that is purchasing for its own ac-   count or for the account of such an 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 dis-   tribution in violation of the Securities Act or (f) pursuant to any other available exemption from the registration re-   quirements of the Securities Act, subject in each of the foregoing cases to any requirement of law that the disposi-   tion 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 sub-   sequent 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 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 Termination Date of the Notes   pursuant to clauses (d), (e) or (f) above to require the delivery of an opinion of counsel, certifications and/or other   information satisfactory to the Company.   3. We [are][are not] an Affiliate of the Company.   TRANSFEREE:      BY:      SECTION 2.9. Form of Certificate to be Delivered in Connection with Transfers Pursuant to Regula-   tion S.   [Date]   Townsquare Media, Inc.   240 Greenwich Avenue   Greenwich, CT  06830   Attention:  Chief Financial Officer   Facsimile:  (203) 861-0900   Wilmington Trust, National Association, as Trustee   246 Goose Lane, Suite 105   Guilford, Connecticut 06437-2186   Attention:  Townsquare Media, Inc. Administrator   Telecopy:  203-453-1183   Re: Townsquare Media, Inc. (the “Company”)   6.500% Senior Notes due 2023 (the “Notes”)   Ladies and Gentlemen:   In connection with our proposed sale of $[________] aggregate principal amount of the Notes, we confirm   that such sale has been effected pursuant to and in accordance with Regulation S under the United States Securities   Act of 1933, as amended (the “Securities Act”), and, accordingly, we represent that:   (a) the offer of the Notes was not made to a person in the United States;   (b) either (i) 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     





 







   -51-                United States or (ii) 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;   (c) no directed selling efforts have been made in the United States in contravention of the re-   quirements of Rule 903(a)(2) or Rule 904(a)(2) of Regulation S, as applicable; and   (d) 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)(2),   Rule 903(b)(3) or Rule 904(b)(1) of Regulation S are applicable thereto, we confirm that such sale has been made in   accordance with the applicable provisions of Rule 903(b)(2), Rule 903(b)(3) or Rule 904(b)(1), as the case may be.   We also hereby certify that we [are][are not] an Affiliate of the Company and, to our knowledge, the trans-   feree of the Notes [is][is not] an Affiliate of the Company.   The Trustee and the Company are entitled to conclusively rely upon this letter and are irrevocably author-   ized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or offi-   cial 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     





 







   -52-                SECTION 2.10. Form of Certificate to be Delivered in Connection with Transfers to AIs.   [Date]   Townsquare Media, Inc.   240 Greenwich Avenue   Greenwich, CT  06830   Attention:  Chief Financial Officer   Facsimile:  (203) 861-0900   Wilmington Trust, National Association, as Trustee   246 Goose Lane, Suite 105   Guilford, Connecticut 06437-2186   Attention:  Townsquare Media, Inc. Administrator   Telecopy:  203-453-1183   Re: Townsquare Media, Inc. (the “Company”)   Ladies and Gentlemen:   This certificate is delivered to request a transfer of $[_________] principal amount of the   6.500% Senior Notes due 2023 (the “Notes”) of TOWNSQUARE MEDIA, INC. (the   “Company”).   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. I am an “accredited investor” (as defined in Rule 501(a)(4) under the U.S. Securities Act of 1933,   as amended (the “Securities Act”)) and I am acquiring the Notes not with a view to, or for offer or sale in connection   with, any distribution in violation of the Securities Act.  I have such knowledge and experience in financial and   business matters as to be capable of evaluating the merits and risk of my investment in the Notes and I invest in or   purchase securities similar to the Notes in the normal course of my business.  I am able to bear the economic risk of   my investment.   2. I understand that the Notes have not been registered under the Securities Act and, unless so regis-   tered, may not be sold except as permitted in the following sentence.  I agree on my own behalf to offer, sell or oth-   erwise transfer such Notes prior to the date that is one year after the later of the date of original issue and the last   date on which the Company or any affiliate of the Company were the owner of such Notes (or any predecessor   thereto) (the “Resale Restriction Termination Date”) only (a) to the Company or any Subsidiary thereof, (b) pursuant   to an effective registration statement under the Securities Act, (c) in a transaction complying with the requirements   of Rule 144A under the Securities Act, to a person I reasonably believe is a “qualified institutional buyer” under   Rule 144A of the Securities Act (a “QIB”) that is purchasing for its own account or for the account of a QIB and 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 purchasing for its own account or for the account of such an institutional “accredited investor,” in each   case in a minimum principal amount of Notes of $200,000 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 availa-    





 







   -53-                ble 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 my property be at all times within my control and in compliance with any   applicable state securities laws.  The foregoing restrictions on resale will not apply subsequent to the Resale Re-   striction Termination Date.  Each purchaser acknowledges that the Company and the Trustee reserve the right prior   to any offer, sale or other transfer prior to the Resale Termination Date of the Notes pursuant to clauses (d), (e) or (f)   above to require the delivery of an opinion of counsel, certifications and/or other information satisfactory to the   Company.   6. I understand and acknowledge that upon the issuance thereof, and until such time as the same is no   longer required under applicable requirements of the Securities Act or state securities laws, the Notes that I acquire   will be certificated Notes that will bear, and all certificates issued in exchange therefor or in substitution thereof will   bear, a restrictive legend set forth in Section 2.1(d) of the Indenture.   7. I am an Affiliate of the Company.   TRANSFEREE:      BY:      SECTION 2.11. Mutilated, Destroyed, Lost or Stolen Notes.   If a mutilated Note is surrendered to the Registrar or if the Holder of a Note claims that the Note has been   lost, destroyed or wrongfully taken, the Company shall issue and the Trustee shall authenticate a replacement Note if   the requirements of Section 8-405 of the Uniform Commercial Code are met, such that the Holder (a) satisfies the   Company and the Trustee that such Note has been lost, destroyed or wrongfully taken within a reasonable time after   such Holder has notice of such loss, destruction or wrongful taking and the Registrar has not registered a transfer   prior to receiving such notification, (b) makes such request to the Company and the Trustee prior to the Note being   acquired by a protected purchaser as defined in Section 8-303 of the Uniform Commercial Code (a “protected pur-   chaser”), (c) satisfies any other reasonable requirements of the Trustee and (d) provides an indemnity bond, as more   fully described below; provided, however, if after the delivery of such replacement Note, a protected purchaser of   the Note for which such replacement Note was issued presents for payment or registration such replaced Note, the   Trustee and/or the Company shall be entitled to recover such replacement Note from the Person to whom it was is-   sued and delivered or any Person taking therefrom, except a protected purchaser, and shall be entitled to recover   upon the security or indemnity provided therefor to the extent of any loss, damage, cost or expense incurred by the   Company or the Trustee in connection therewith.  Such Holder shall furnish an indemnity bond sufficient in the   judgment of the (i) Trustee to protect the Trustee and (ii) the Company to protect the Company, the Trustee, the Pay-   ing Agent and the Registrar, from any loss which any of them may suffer if a Note is replaced, and, in the absence of   notice to the Company, any Guarantor or the Trustee that such Note has been acquired by a protected purchaser, the   Company shall execute, and upon receipt of an Issuer Order, the Trustee shall authenticate and make available for   delivery, in exchange for any such mutilated Note or in lieu of any such destroyed, lost or stolen Note, a new Note   of like tenor and principal amount, bearing a number not contemporaneously outstanding.   In case any such mutilated, destroyed, lost or stolen Note has become or is about to become due and paya-   ble, the Company in its discretion may, instead of issuing a new Note, pay such Note.   Upon the issuance of any new Note under this Section 2.11, the Company may require that such Holder pay   a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other   expenses (including the fees and expenses of counsel and of the Trustee) in connection therewith.   Subject to the proviso in the initial paragraph of this Section 2.11, every new Note issued pursuant to this   Section 2.11, in lieu of any mutilated, destroyed, lost or stolen Note shall constitute an original additional contractu-   al obligation of the Company, any Guarantor (if applicable) and any other obligor upon the Notes, whether or not the   mutilated, destroyed, lost or stolen Note shall be at any time enforceable by anyone, and shall be entitled to all bene-   fits of this Indenture equally and proportionately with any and all other Notes duly issued hereunder.     





 







   -54-                The provisions of this Section 2.11 are exclusive and shall preclude (to the extent lawful) all other rights   and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes.   SECTION 2.12. Outstanding Notes.  Notes outstanding at any time are all Notes authenticated by the   Trustee except for those cancelled by it, those delivered to it for cancellation, those paid pursuant to Section 2.11   and those described in this Section 2.12 as not outstanding.  A Note does not cease to be outstanding in the event the   Company or an Affiliate of the Company holds the Note; provided, however, that (i) for purposes of determining   which are outstanding for consent or voting purposes hereunder, the provisions of Section 12.4 shall apply and (ii) in   determining whether the Trustee shall be protected in making a determination whether the Holders of the requisite   principal amount of outstanding Notes are present at a meeting of Holders of Notes for quorum purposes or have   consented to or voted in favor of any request, demand, authorization, direction, notice, consent, waiver, amendment   or modification hereunder, or relying upon any such quorum, consent or vote, only Notes which a Trust Officer of   the Trustee actually knows to be held by the Company or an Affiliate of the Company shall not be considered out-   standing.   If a Note is replaced pursuant to Section 2.11 (other than a mutilated Note surrendered for replacement), it   ceases to be outstanding unless the Trustee and the Company receive proof satisfactory to them that the replaced   Note is held by a protected purchaser.  A mutilated Note ceases to be outstanding upon surrender of such Note and   replacement pursuant to Section 2.11.   If the Paying Agent segregates and holds in trust, in accordance with this Indenture, on a Redemption Date   or maturity date, money sufficient to pay all principal, premium, if any, and accrued interest payable on that date   with respect to the Notes (or portions thereof) to be redeemed or maturing, as the case may be, and the Paying Agent   is not prohibited from paying such money to the Holders on that date pursuant to the terms of this Indenture, then on   and after that date such Notes (or portions thereof) cease to be outstanding and interest on them ceases to accrue.   SECTION 2.13. Temporary Notes.  In the event that Definitive Notes are to be issued under the terms   of this Indenture, until such Definitive Notes are ready for delivery, the Company may prepare and the Trustee shall   authenticate temporary Notes.  Temporary Notes shall be substantially in the form, and shall carry all rights, of De-   finitive Notes but may have variations that the Company considers appropriate for temporary Notes.  Without unrea-   sonable delay, the Company shall prepare and the Trustee shall authenticate Definitive Notes.  After the preparation   of Definitive Notes, the temporary Notes shall be exchangeable for Definitive Notes upon surrender of the tempo-   rary Notes at any office or agency maintained by the Company for that purpose and such exchange shall be without   charge to the Holder.  Upon surrender for cancellation of any one or more temporary Notes, the Company shall exe-   cute, and the Trustee shall, upon receipt of an Issue Order, authenticate and make available for delivery in exchange   therefor, one or more Definitive Notes representing an equal principal amount of Notes.  Until so exchanged, the   Holder of temporary Notes shall in all respects be entitled to the same benefits under this Indenture as a Holder of   Definitive Notes.   SECTION 2.14. Cancellation.  The Company at any time may deliver Notes to the Trustee for cancella-   tion.  The Registrar and the Paying Agent shall forward to the Trustee any Notes surrendered to them for registration   of transfer, exchange or payment.  The Trustee and no one else shall cancel all Notes surrendered for registration of   transfer, exchange, payment or cancellation and dispose of such Notes in accordance with its internal policies and   customary procedures (subject to the record retention requirements of the Exchange Act and the Trustee).  If the   Company or any Guarantor acquires any of the Notes, such acquisition shall not operate as a redemption or satisfac-   tion of the Indebtedness represented by such Notes unless and until the same are surrendered to the Trustee for can-   cellation pursuant to this Section 2.14.  The Company may not issue new Notes to replace Notes it has paid or deliv-   ered to the Trustee for cancellation for any reason other than in connection with a transfer or exchange.   At such time as all beneficial interests in a Global Note have either been exchanged for Definitive Notes,   transferred, redeemed, repurchased or canceled, such Global Note shall be returned by DTC to the Trustee for can-   cellation or retained and canceled by the Trustee.  At any time prior to such cancellation, if any beneficial interest in   a Global Note is exchanged for Definitive Notes, transferred in exchange for an interest in another Global Note, re-   deemed, repurchased or canceled, the principal amount of Notes represented by such Global Note shall be reduced   and an adjustment shall be made on the books and records of the Trustee (if it is then the Notes Custodian for such   Global Note) with respect to such Global Note, by the Trustee or the Notes Custodian, to reflect such reduction.     





 







   -55-                SECTION 2.15. Payment of Interest; Defaulted Interest.  Interest on any Note which is payable, and is   punctually paid or duly provided for, on any interest payment date shall be paid to the Person in whose name such   Note (or one or more Predecessor Notes) is registered at the close of business on the regular record date for such   payment at the office or agency of the Company maintained for such purpose pursuant to Section 2.3.   Any interest on any Note which is payable, but is not paid when the same becomes due and payable and   such nonpayment continues for a period of 30 days shall forthwith cease to be payable to the Holder on the regular   record date, and such defaulted interest and (to the extent lawful) interest on such defaulted interest at the rate borne   by the Notes (such defaulted interest and interest thereon herein collectively called “Defaulted Interest”) shall be   paid by the Company, at its election, as provided in clause (a) or (b) below:   (a) The Company may elect to make payment of any Defaulted Interest to the Persons in   whose names the Notes (or their respective predecessor Notes) are registered at the close of business on a   Special Record Date (as defined below) for the payment of such Defaulted Interest, which shall be fixed in   the following manner.  The Company shall notify the Trustee in writing of the amount of Defaulted Interest   proposed to be paid on each Note and the date (not less than 30 days after such notice) of the proposed   payment (the “Special Interest Payment Date”), and at the same time the Company shall deposit with the   Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Default-   ed Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the   proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to   such Defaulted Interest as in this Section 2.15(a).  Thereupon the Company shall fix a record date (the   “Special Record Date”) for the payment of such Defaulted Interest, which date shall be not more than   20 calendar days and not less than 15 calendar days prior to the Special Interest Payment Date and not less   than 10 calendar days after the receipt by the Trustee of the notice of the proposed payment.  The Company   shall promptly notify the Trustee in writing of such Special Record Date, and in the name and at the ex-   pense of the Company, the Trustee shall cause notice of the proposed payment of such Defaulted Interest   and the Special Record Date and Special Interest Payment Date therefor to be given in the manner provided   for in Section 12.1, not less than 10 calendar days prior to such Special Record Date.  Notice of the pro-   posed payment of such Defaulted Interest and the Special Record Date and Special Interest Payment Date   therefor having been so given, such Defaulted Interest shall be paid on the Special Interest Payment Date to   the Persons in whose names the Notes (or their respective predecessor Notes) are registered at the close of   business on such Special Record Date and shall no longer be payable pursuant to the provisions in Sec-   tion 2.15(b).   (b) The Company may make payment of any Defaulted Interest in any other lawful manner   not inconsistent with the requirements of any securities exchange on which the Notes may be listed, and   upon such notice as may be required by such exchange, if, after written notice given by the Company to the   Trustee of the proposed payment pursuant to this Section 2.15(b), such manner of payment shall be deemed   practicable by the Trustee.   Subject to the foregoing provisions of this Section 2.15, each Note delivered under this Indenture upon reg-   istration of, transfer of or in exchange for or in lieu of any other Note shall carry the rights to interest accrued and   unpaid, and to accrue, which were carried by such other Note.   SECTION 2.16. CUSIP and ISIN Numbers.   The Company in issuing the Notes may use “CUSIP” and “ISIN” numbers and, if so, the Trustee shall use   “CUSIP and “ISIN” numbers in notices of redemption or purchase as a convenience to Holders; provided, however,   that any such notice may state that no representation is made as to the correctness of such numbers either as printed   on the Notes or as contained in any notice of a redemption or purchase and that reliance may be placed only on the   other identification numbers printed on the Notes, and any such redemption or purchase shall not be affected by any   defect in or omission of such CUSIP and ISIN numbers.  The Company shall promptly notify the Trustee in writing   of any change in the CUSIP and ISIN numbers.     





 







   -56-                ARTICLE III      COVENANTS   SECTION 3.1. Payment of Notes.  The Company shall promptly pay the principal of, premium, if any,   and interest on the Notes on the dates and in the manner provided in the Notes and in this Indenture.  Principal, pre-   mium, if any, and interest shall be considered paid on the date due if by 11:00 a.m. Eastern time on such date the   Trustee or the Paying Agent holds in accordance with this Indenture money sufficient to pay all principal, premium,   if any, and interest then due and the Trustee or the Paying Agent, as the case may be, is not prohibited from paying   such money to the Holders on that date pursuant to the terms of this Indenture.   The Company shall pay interest on overdue principal at the rate specified therefor in the Notes, and it shall   pay interest on overdue installments of interest at the same rate to the extent lawful.   Notwithstanding anything to the contrary contained in this Indenture, the Company may, to the extent it is   required to do so by law, deduct or withhold income or other similar taxes imposed by the United States of America   from principal or interest payments hereunder.   SECTION 3.2. Limitation on Indebtedness.   (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, Incur any In-   debtedness (including Acquired Indebtedness); provided, however, that the Company and any of its Restricted Sub-   sidiaries may Incur Indebtedness (including Acquired Indebtedness) if on the date of such Incurrence and after giv-   ing pro forma effect thereto (including pro forma application of the proceeds thereof), the Leverage Ratio for the   Company and its Restricted Subsidiaries is less than 6.00 to 1.00; provided, further, that Non-Guarantors may not   Incur Indebtedness if, after giving pro forma effect to such Incurrence (including a pro forma application of the net   proceeds therefrom), more than an aggregate of the greater of (a) $30.0 million and (b) 3.25% of Total Assets of   Indebtedness of Non-Guarantors would be outstanding pursuant to this paragraph.   (b) The first paragraph of this covenant shall not prohibit the Incurrence of the following Indebted-   ness:   (1) Indebtedness Incurred pursuant to any Credit Facility (including letters of credit or bank-   ers’ acceptances issued or created under any Credit Facility), and any Refinancing Indebtedness in respect   thereof and Guarantees in respect of such Indebtedness in a maximum aggregate principal amount at any   time outstanding not exceeding the sum of (i) $405.0 million plus (ii) in the case of any refinancing of any   Indebtedness permitted under this Section 3.2(b)(1) or any portion thereof, the aggregate amount of fees,   underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in   connection with such refinancing;   (2) (i) Guarantees by the Company or any Restricted Subsidiary of Indebtedness or other ob-   ligations of the Company or any Restricted Subsidiary so long as the Incurrence of such Indebtedness or   other obligation is not prohibited by the terms of this Indenture;   (3) Indebtedness of the Company owing to and held by any Restricted Subsidiary or Indebt-   edness of a Restricted Subsidiary owing to and held by the Company or any Restricted Subsidiary; provid-   ed, however, that:   (i) any subsequent issuance or transfer of Capital Stock or any other event which re-   sults in any such Indebtedness being beneficially held by a Person other than the Company or a   Restricted Subsidiary; and   (ii) any sale or other transfer of any such Indebtedness to a Person other than the Com-   pany or a Restricted Subsidiary;     





 







   -57-                shall be deemed, in each case, to constitute an Incurrence of such Indebtedness by the Company or such   Restricted Subsidiary, as the case may be;   (4) Indebtedness represented by (i) the Notes (other than any Additional Notes), including   any Guarantee thereof, (ii)  any Indebtedness (other than Indebtedness incurred pursuant to clauses (1) and   (3)) outstanding on the Issue Date, (iii) Refinancing Indebtedness Incurred in respect of any Indebtedness   described in this clause or clauses (5) or (10) of this Section 3.2(b) or Incurred pursuant to Section 3.2(a),   and (iv) Management Advances;   (5) Indebtedness of (x) the Company or any Restricted Subsidiary Incurred or issued to fi-   nance an acquisition or (y) Persons that are acquired by the Company or any Restricted Subsidiaries or   merged into or consolidated with the Company or any Restricted Subsidiaries in accordance with the terms   of this Indenture; provided that such Indebtedness is in an aggregate amount not to exceed (i) $20.0 million   at any time outstanding plus (ii) unlimited additional Indebtedness if after giving effect to such acquisition,   merger or consolidation, either   (i) the Company would be permitted to Incur at least $1.00 of additional Indebtedness   pursuant to the Leverage Ratio test set forth in Section 3.2(a);   (ii) the Leverage Ratio of the Company and the Restricted Subsidiaries would not be   greater than immediately prior to such acquisition, merger or consolidation; or    (iii) such Indebtedness constitutes Acquired Indebtedness (other than Indebtedness In-   curred in contemplation of the transaction or series of related transactions pursuant to which such   Person became a Restricted Subsidiary or was otherwise acquired by the Company or a Restricted   Subsidiary); provided, that in the case of this subclause (iii) that the only obligors with respect to   such Indebtedness shall be those Persons who were obligors of such Indebtedness prior to such   acquisition, merger or consolidation;   (6) Hedging Obligations (excluding Hedging Obligations entered into for speculative pur-   poses);   (7) Indebtedness (i) represented by Capitalized Lease Obligations or Purchase Money Obli-   gations, in an aggregate outstanding principal amount which, when taken together with the principal   amount of all other Indebtedness Incurred pursuant to this clause (7) and then outstanding, does not exceed   the greater of (x) $20.0 million and (y) 2.25% of Total Assets at the time of Incurrence and any Refinanc-   ing Indebtedness in respect thereof and (ii) arising out of Sale and Leaseback Transactions in an aggregate   principal amount at any one time outstanding not to exceed the greater of (x) $10.0 million and (y) 1.0% of   Total Assets;   (8) Indebtedness in respect of (i) workers’ compensation claims, self-insurance obligations,   performance, indemnity, surety, judgment, appeal, advance payment, customs, value added or other tax or   other guarantees or other similar bonds, instruments or obligations and completion guarantees and warran-   ties provided by the Company or a Restricted Subsidiary or relating to liabilities, obligations or guarantees   Incurred in the ordinary course of business or consistent with past practice, (ii) the honoring by a bank or   other financial institution of a check, draft or similar instrument drawn against insufficient funds in the or-   dinary course of business or consistent with past practice; provided, however, that such Indebtedness is ex-   tinguished within five Business Days of Incurrence; (iii) customer deposits and advance payments received   in the ordinary course of business or consistent with past practice from customers for goods or services   purchased in the ordinary course of business or consistent with past practice; (iv) letters of credit, bankers’   acceptances, guarantees or other similar instruments or obligations issued or relating to liabilities or obliga-   tions Incurred in the ordinary course of business or consistent with past practice, and (v) any customary   treasury, depositary, cash management, automatic clearinghouse arrangements, overdraft protections, cash   pooling or netting or setting off arrangements or similar arrangements in the ordinary course of business or   consistent with past practice;     





 







   -58-                (9) Indebtedness arising from agreements providing for guarantees, indemnification, obliga-   tions in respect of earn-outs or other adjustments of purchase price or, in each case, similar obligations, in   each case, Incurred or assumed in connection with the acquisition or disposition of any business or assets or   Person or any Capital Stock of a Subsidiary (other than Guarantees of Indebtedness Incurred by any Person   acquiring or disposing of such business or assets or such Subsidiary for the purpose of financing such ac-   quisition or disposition); provided that the maximum liability of the Company and its Restricted Subsidiar-   ies in respect of all such Indebtedness in connection with a disposition shall at no time exceed the gross   proceeds, including the fair market value of non-cash proceeds (measured at the time received and without   giving effect to any subsequent changes in value), actually received by the Company and its Restricted   Subsidiaries in connection with such disposition;   (10) Indebtedness in an aggregate outstanding principal amount which, when taken together   with any Refinancing Indebtedness in respect thereof and the principal amount of all other Indebtedness In-   curred pursuant to this clause (10) and then outstanding, will not exceed 100% of the Net Cash Proceeds   received by the Company from the issuance or sale (other than to a Restricted Subsidiary) of its Capital   Stock (other than Disqualified Stock, Designated Preferred Stock or an Excluded Contribution) or other-   wise contributed to the equity (other than through the issuance of Disqualified Stock, Designated Preferred   Stock or an Excluded Contribution) of the Company, in each case, subsequent to the Issue Date; provided,   however, that (i) any such Net Cash Proceeds that are so received or contributed shall not increase the   amount available for making Restricted Payments to the extent the Company and its Restricted Subsidiaries   Incur Indebtedness in reliance thereon and (ii) any Net Cash Proceeds that are so received or contributed   shall be excluded for purposes of Incurring Indebtedness pursuant to this clause (10) to the extent such Net   Cash Proceeds or cash have been applied to make Restricted Payments;   (11) Indebtedness of Non-Guarantors in an aggregate amount not to exceed the greater of   (a) $20.0 million and (b) 2.25% of Total Assets at any time outstanding and any Refinancing Indebtedness   in respect thereof;   (12) Indebtedness consisting of promissory notes issued by the Company or any of its Subsid-   iaries to any current or former employee, director or consultant of the Company, any of its Subsidiaries or   any Parent Entity (or permitted transferees, assigns, estates, or heirs of such employee, director or consult-   ant), to finance the purchase or redemption of Capital Stock of the Company or any Company that is per-   mitted by Section 3.3;    (13) Indebtedness of the Company or any of its Restricted Subsidiaries consisting of (i) the fi-   nancing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each   case Incurred in the ordinary course of business or consistent with past practice;   (14) Indebtedness in an aggregate outstanding principal amount which, when taken together   with any Refinancing Indebtedness in respect thereof and the principal amount of all other Indebtedness In-   curred pursuant to this clause and then outstanding, will not exceed the greater of (a) $40.0 million and   (b) 4.25% of Total Assets; and   (15) Indebtedness of the Company or any of its Restricted Subsidiaries to the extent proceeds   of such Indebtedness are deposited and used to defease the Notes as described in Sections 8.1, 8.2, 8.3 and   11.1 hereof.   (c) For purposes of determining compliance with, and the outstanding principal amount of any par-   ticular Indebtedness Incurred pursuant to and in compliance with, this Section 3.2:   (1) in the event that all or any portion of any item of Indebtedness meets the criteria of more   than one of the types of Indebtedness described in the first and second paragraphs of this covenant, the   Company, in its sole discretion, shall classify, and may from time to time reclassify, all or any portion of   such item of Indebtedness and only be required to include the amount and type of such Indebtedness in any   of the clauses of Section 3.2(a) or (b);     





 







   -59-                (2) additionally, all or any portion of any item of Indebtedness may later be classified as hav-   ing been Incurred pursuant to any type of Indebtedness described in one of the clauses of Section 3.2(a) or   (b) so long as such Indebtedness is permitted to be Incurred pursuant to such provision at the time of reclas-   sification;   (3) all Indebtedness outstanding on the Issue Date under the Credit Agreement shall be   deemed initially incurred on the Issue Date under Section 3.2(b)(1);   (4) in the case of any refinancing of any Indebtedness, such Indebtedness shall not include   the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses Incurred in   connection with such refinancing;   (5) Guarantees of, or obligations in respect of letters of credit, bankers’ acceptances or other   similar instruments relating to, or Liens securing, Indebtedness that is otherwise included in the determina-   tion of a particular amount of Indebtedness shall not be included;   (6) if obligations in respect of letters of credit, bankers’ acceptances or other similar instru-   ments are Incurred pursuant to any Credit Facility and are being treated as Incurred pursuant to clause (a),   (b)(1), (b)(7), (b)(10), (b)(11) or (b)(14) of this Section 3.2 and the letters of credit, bankers’ acceptances or   other similar instruments relate to other Indebtedness, then such other Indebtedness shall not be included;   (7) the principal amount of any Disqualified Stock of the Company or a Restricted Subsidi-   ary, or Preferred Stock of a Restricted Subsidiary, will be equal to the greater of the maximum mandatory   redemption or repurchase price (not including, in either case, any redemption or repurchase premium) or   the liquidation preference thereof;   (8) Indebtedness permitted by this covenant need not be permitted solely by reference to one   provision permitting such Indebtedness but may be permitted in part by one such provision and in part by   one or more other provisions of this covenant permitting such Indebtedness; and   (9) the amount of any indebtedness outstanding as of any date shall be (a) the accreted value   thereof in the case of any Indebtedness issued with original issue discount and (b) the principal amount of   the Indebtedness, or liquidation preference thereof, in the case of any other Indebtedness.   Accrual of interest, accrual of dividends, the accretion of accreted value, the accretion or amortization of   original issue discount, the payment of interest in the form of additional Indebtedness, the payment of dividends in   the form of additional shares of Preferred Stock or Disqualified Stock or the reclassification of commitments or ob-   ligations not treated as Indebtedness due to a change in GAAP, will not be deemed to be an Incurrence of Indebted-   ness for purposes of this Section 3.2.   If at any time an Unrestricted Subsidiary becomes a Restricted Subsidiary, any Indebtedness of such Sub-   sidiary shall be deemed to be Incurred by a Restricted Subsidiary of the Company as of such date (and, if such In-   debtedness is not permitted to be Incurred as of such date under this Section 3.2, the Company, shall be in default of   this Section 3.2).   For purposes of determining compliance with any U.S. dollar-denominated restriction on the incurrence of   Indebtedness, the U.S. dollar equivalent principal amount of Indebtedness denominated in a foreign currency shall   be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was Incurred, in   the case of term debt, or first committed, in the case of revolving credit debt; provided, that if such Indebtedness is   Incurred to refinance other Indebtedness 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 Indebtedness does not exceed (a) the principal amount   of such Indebtedness being refinanced plus (b) the aggregate amount of fees, underwriting discounts, premiums (in-    





 







   -60-                cluding tender premiums) and other costs and expenses (including original issue discount, upfront fees or similar   fees) incurred in connection with such refinancing.   Notwithstanding any other provision of this Section 3.2, the maximum amount of Indebtedness that the   Company or a Restricted Subsidiary may incur pursuant to this Section 3.2 shall not be deemed to be exceeded sole-   ly as a result of fluctuations in the exchange rate of currencies.  The principal amount of any Indebtedness Incurred   to refinance other Indebtedness, if Incurred in a different currency from the Indebtedness being refinanced, shall be   calculated based on the currency exchange rate applicable to the currencies in which such Refinancing Indebtedness   is denominated that is in effect on the date of such refinancing.   The Company shall not, and shall not permit any Guarantor to, directly or indirectly, Incur any Indebted-   ness (including Acquired Indebtedness) that is subordinated or junior in right of payment to any Indebtedness of the   Company or such Guarantor, as the case may be, unless such Indebtedness is expressly subordinated in right of   payment to the Notes or such Guarantor’s Note Guarantee to the extent and in the same manner as such Indebted-   ness is subordinated to other Indebtedness of the Company or such Guarantor, as the case may be; provided that for   purposes of this Indenture, (1) unsecured Indebtedness shall not be treated as subordinated or junior to Secured In-   debtedness merely because it is unsecured and (2) senior Indebtedness shall not be treated as subordinated or junior   to any other senior Indebtedness merely because it has a junior priority with respect to the same collateral or is se-   cured by different collateral or because it is guaranteed by different obligors.   SECTION 3.3. Limitation on Restricted Payments.   (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries, directly or indi-   rectly, to:   (1) declare or pay any dividend or make any distribution on or in respect of the Company’s   or any Restricted Subsidiary’s Capital Stock (including any such payment in connection with any merger,   amalgamation or consolidation involving the Company or any of its Restricted Subsidiaries) except:   (i) dividends or distributions payable in Capital Stock of the Company (other than Dis-   qualified Stock) or in options, warrants or other rights to purchase such Capital Stock of the Com-   pany; and   (ii) dividends or distributions payable to the Company or a Restricted Subsidiary (and,   in the case of any such Restricted Subsidiary making such dividend or distribution, to holders of   its Capital Stock other than the Company or another Restricted Subsidiary on no more than a pro   rata basis);   (2) purchase, redeem, retire or otherwise acquire for value any Capital Stock of the Company   or any Parent Entity of the Company held by Persons other than the Company or a Restricted Subsidiary;   (3) purchase, repurchase, redeem, defease or otherwise acquire or retire for value, prior to   scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Subordinated Indebted-   ness (other than (i) any such purchase, repurchase, redemption, defeasance or other acquisition or retire-   ment in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each   case, due within one year of the date of purchase, repurchase, redemption, defeasance or other acquisition   or retirement and (ii) any Indebtedness Incurred pursuant to Section 3.2(b)(3)); or   (4) make any Restricted Investment;   (any such dividend, distribution, purchase, redemption, repurchase, defeasance, other acquisition, retire-   ment or Restricted Investment referred to in clauses (1) through (4) are referred to herein as a “Restricted   Payment”), if at the time the Company or such Restricted Subsidiary makes such Restricted Payment:     





 







   -61-                (i) a Default shall have occurred and be continuing (or would result immediately there-   after therefrom);   (ii) the Company is not able to Incur an additional $1.00 of Indebtedness pursuant to   Section 3.2(a) after giving effect, on a pro forma basis, to such Restricted Payment; or   (iii) the aggregate amount of such Restricted Payment and all other Restricted Payments   made subsequent to April 4, 2012 (and not returned or rescinded) (including Restricted Payments   permitted by Section 3.3(b)(1) (without duplication) and (10), but excluding all other Restricted   Payments permitted by Section 3.3(b)) would exceed the sum of (without duplication):   (A) 100% of Consolidated EBITDA for the period (treated as one account-   ing period) from April 4, 2012 to the end of the most recent fiscal quarter ending prior to   the date of such Restricted Payment for which internal consolidated financial statements   of the Company are available (or, in the case such Consolidated EBITDA is a deficit, mi-   nus 100% of such deficit); less 1.4 times Consolidated Interest Expense for the same pe-   riod;   (B) 100% of the aggregate Net Cash Proceeds, and the fair market value of   property or assets or marketable securities, received by the Company from the issue or   sale of its Capital Stock (other than Disqualified Stock or Designated Preferred Stock)   subsequent to April 4, 2012 or otherwise contributed to the equity (other than through the   issuance of Disqualified Stock or Designated Preferred Stock) of the Company subse-   quent to April 4, 2012 (other than (x) Net Cash Proceeds or property or assets or market-   able securities received from an issuance or sale of such Capital Stock to a Restricted   Subsidiary or an employee stock ownership plan or trust established by the Company or   any Subsidiary of the Company for the benefit of its employees to the extent funded by   the Company or any Restricted Subsidiary, (y) Net Cash Proceeds or property or assets or   marketable securities to the extent that any Restricted Payment has been made from such   proceeds in reliance on Section 3.3(b)(6) and (z) Excluded Contributions);   (C) 100% of the aggregate Net Cash Proceeds, and the fair market value of   property or assets or marketable securities, received by the Company or any Restricted   Subsidiary from the issuance or sale (other than to the Company or a Restricted Subsidi-   ary of the Company or an employee stock ownership plan or trust established by the   Company or any Subsidiary of the Company for the benefit of their employees to the ex-   tent funded by the Company or any Restricted Subsidiary) by the Company or any Re-   stricted Subsidiary subsequent to April 4, 2012 of any Indebtedness, Disqualified Stock   or Designated Preferred Stock that has been converted into or exchanged for Capital   Stock of the Company (other than Disqualified Stock or Designated Preferred Stock)   plus, without duplication, the amount of any cash, and the fair market value of property   or assets or marketable securities, received by the Company or any Restricted Subsidiary   upon such conversion or exchange;   (D) 100% of the aggregate amount received in cash and the fair market val-   ue, as determined in good faith by the Company, of marketable securities or other proper-   ty received by means of:  (a) the sale or other disposition (other than to the Company or a   Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted   Subsidiaries and repurchases and redemptions of such Restricted Investments from the   Company or its Restricted Subsidiaries and repayments of loans or advances, and releases   of guarantees, which constitute Restricted Investments by the Company or its Restricted   Subsidiaries, in each case after April 4, 2012 or (ii) the sale (other than to the Company   or a Restricted Subsidiary) of the stock of an Unrestricted Subsidiary or a distribution   from an Unrestricted Subsidiary (other than to the extent of the amount of the Investment   that constituted a Permitted Investment which will instead increase the amount available     





 







   -62-                under the applicable clause of the definition of “Permitted Investments”) or a dividend   from an Unrestricted Subsidiary after April 4, 2012; and   (E) in the case of the redesignation of an Unrestricted Subsidiary as a Re-   stricted Subsidiary or the merger, amalgamation or consolidation of an Unrestricted Sub-   sidiary into the Company or a Restricted Subsidiary or the transfer of all or substantially   all of the assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary   after April 4, 2012, the fair market value of the Investment in such Unrestricted Subsidi-   ary (or the assets transferred), as determined in good faith by the Company at the time of   the redesignation of such Unrestricted Subsidiary as a Restricted Subsidiary or at the time   of such merger, amalgamation or consolidation or transfer of assets (after taking into con-   sideration any Indebtedness associated with the Unrestricted Subsidiary so designated or   merged, amalgamated or consolidated or Indebtedness associated with the assets so trans-   ferred), other than to the extent of the amount of the Investment that constituted a Permit-   ted Investment.   (b) The foregoing provisions of Section 3.3(a) will not prohibit any of the following (collectively,   “Permitted Payments”):   (1) the payment of any dividend or distribution within 60 days after the date of declaration   thereof, if at the date of declaration such payment would have complied with the provisions of this Inden-   ture or the redemption, repurchase or retirement of Indebtedness if, at the date of any redemption notice,   such payment would have complied with the provisions of this Indenture;   (2) any purchase, repurchase, redemption, defeasance or other acquisition or retirement of   Capital Stock or Subordinated Indebtedness made by exchange (including any such exchange pursuant to   the exercise of a conversion right or privilege in connection with which cash is paid in lieu of the issuance   of fractional shares) for, or out of the proceeds of the substantially concurrent sale of, Capital Stock of the   Company (other than Disqualified Stock or Designated Preferred Stock) (“Refunding Capital Stock”) or a   substantially concurrent contribution to the equity (other than through the issuance of Disqualified Stock or   Designated Preferred Stock or through an Excluded Contribution) of the Company; provided, however, that   to the extent so applied, the Net Cash Proceeds, or fair market value of property or assets or of marketable   securities, from such sale of Capital Stock or such contribution will be excluded from Section 3.3(a)(iii);   (3) any purchase, repurchase, redemption, defeasance or other acquisition or retirement of   Subordinated Indebtedness made by exchange for, or out of the proceeds of the substantially concurrent   sale of, Refinancing Indebtedness permitted to be Incurred pursuant to Section 3.2;   (4) any purchase, repurchase, redemption, defeasance or other acquisition or retirement of   Preferred Stock of the Company or a Restricted Subsidiary made by exchange for or out of the proceeds of   the substantially concurrent sale of Preferred Stock of the Company or a Restricted Subsidiary, as the case   may be, that, in each case, is permitted to be Incurred pursuant to Section 3.2;   (5) any purchase, repurchase, redemption, defeasance or other acquisition or retirement of   Subordinated Indebtedness or Disqualified Stock or Preferred Stock of a Restricted Subsidiary:   (i) from Net Available Cash to the extent permitted under Section 3.5, but only if the   Company shall have first complied with the terms described under Section 3.5 and purchased all   Notes tendered pursuant to any offer to repurchase all the Notes required thereby, prior to purchas-   ing, repurchasing, redeeming, defeasing or otherwise acquiring or retiring such Subordinated In-   debtedness, Disqualified Stock or Preferred Stock; or    (ii) to the extent required by the agreement governing such Subordinated Indebtedness,   Disqualified Stock or Preferred Stock following the occurrence of a Change of Control (or other   similar event described therein as a “change of control”), but only if the Company shall have first     





 







   -63-                complied with Section 3.9 and purchased all Notes tendered pursuant to the offer to repurchase all   the Notes required thereby, prior to purchasing, repurchasing, redeeming, defeasing or otherwise   acquiring or retiring such Subordinated Indebtedness, Disqualified Stock or Preferred Stock; or   (iii) consisting of Acquired Indebtedness (other than Indebtedness Incurred (A) to pro-   vide all or any portion of the funds utilized to consummate the transaction or series of related   transactions pursuant to which such Person became a Restricted Subsidiary or was otherwise ac-   quired by the Company or a Restricted Subsidiary or (B) otherwise in connection with or contem-   plation of such acquisition);   (6) a Restricted Payment to pay for the repurchase, redemption or other acquisition or retire-   ment for value of Capital Stock (other than Disqualified Stock) of the Company or of any Parent Entity   held by any future, present or former employee, director or consultant of the Company, any of its Subsidi-   aries or of any Parent Entity (or permitted transferees, assigns, estates, trusts or heirs of such employee, di-   rector or consultant) either pursuant to any management equity plan or stock option plan or any other man-   agement or employee benefit plan or agreement or upon the termination of such employee, director or con-   sultant’s employment or directorship; provided, however, that the aggregate Restricted Payments made un-   der this clause (6) do not exceed $10.0 million in any calendar year (with unused amounts in any calendar   year being carried over to succeeding calendar years subject to a maximum of $20.0 million in any calendar   year); provided further that such amount in any calendar year may be increased by an amount not to ex-   ceed:   (i) the cash proceeds from the sale of Capital Stock (other than Disqualified Stock or   Designated Preferred Stock) of the Company  and, to the extent contributed to the capital of the   Company (other than through the issuance of Disqualified Stock or Designated Preferred Stock or   an Excluded Contribution), Capital Stock of any Parent Entity, in each case to members of man-   agement, directors or consultants of the Company, any of its Subsidiaries or any Parent Entity that   occurred after the Issue Date, to the extent the cash proceeds from the sale of such Capital Stock   have not otherwise been applied to the payment of Restricted Payments by virtue of Sec-   tion 3.3(b)(iii); plus   (ii) the cash proceeds of key man life insurance policies received by the Company and   its Restricted Subsidiaries after the Issue Date; less   (iii) the amount of any Restricted Payments made in previous calendar years pursuant to   clauses (i) and (ii) of this clause (6);   and provided further that cancellation of Indebtedness owing to the Company or any Restricted Subsidiary   from any future, present or former members of management, directors, employees or consultants of the   Company, or any Parent Entity or Restricted Subsidiaries in connection with a repurchase of Capital Stock   of the Company or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of   this covenant or any other provision of this Indenture;   (7) the declaration and payment of dividends on Disqualified Stock, or Preferred Stock of a   Restricted Subsidiary, Incurred in accordance with Section 3.2;   (8) purchases, repurchases, redemptions, defeasances or other acquisitions or retirements of   Capital Stock deemed to occur upon the exercise of stock options, warrants or other rights in respect there-   of if such Capital Stock represents a portion of the exercise price thereof;   (9) dividends, loans, advances or distributions to any Parent Entity or other payments by the   Company or any Restricted Subsidiary in amounts equal to (without duplication):   (i) the amounts required for any Parent Entity to pay any Parent Entity Expenses or any   Related Taxes or for the Company to make a Permitted Tax Distribution; or     





 







   -64-                (ii) amounts constituting or to be used for purposes of making payments to the extent   specified in Section 3.8(b)(2), (3), (5), (11) and (12);   (10) the declaration and payment by the Company of, dividends on the common stock or   common equity interests of the Company or any Parent following a public offering of such common stock   or common equity interests, in an amount not to exceed 6% of the proceeds received by or contributed to   the Company in or from any public offering in any fiscal year;   (11) payments by the Company, or loans, advances, dividends or distributions to any Parent   Entity to make payments, to holders of Capital Stock of the Company or any Parent Entity in lieu of the is-   suance of fractional shares of such Capital Stock; provided, however, that any such payment, loan, advance,   dividend or distribution shall not be for the purpose of evading any limitation of this covenant or otherwise   to facilitate any dividend or other return of capital to the holders of such Capital Stock (as determined in   good faith by the Board of Directors);   (12) Restricted Payments that are made with Excluded Contributions;   (13) (i) the declaration and payment of dividends on Designated Preferred Stock of the Com-   pany issued after the Issue Date; and (ii) the declaration and payment of dividends on Refunding Capital   Stock that is Preferred Stock; provided, however, that, in the case of clause (i), the amount of all dividends   declared or paid pursuant to this clause shall not exceed the Net Cash Proceeds received by the Company or   the aggregate amount contributed in cash to the equity (other than through the issuance of Disqualified   Stock or an Excluded Contribution of the Company), from the issuance or sale of such Designated Pre-   ferred Stock; provided further, in the case of clauses (i) and (ii), that for the most recently ended four fiscal   quarters for which internal financial statements are available immediately preceding the date of issuance of   such Designated Preferred Stock or declaration of such dividends on such Refunding Capital Stock, after   giving effect to such payment on a pro forma basis the Company would be permitted to Incur at least $1.00   of additional Indebtedness pursuant to Section 3.2(a);   (14) dividends or other distributions of Capital Stock of, or Indebtedness owed to the Compa-   ny or a Restricted Subsidiary by, Unrestricted Subsidiaries (unless the Unrestricted Subsidiary’s principal   asset is cash or Cash Equivalents);   (15) any Restricted Payment made in connection with the Transactions and any costs and ex-   penses (including all legal, accounting and other professional fees and expenses) related thereto or used to   fund amounts owed to Affiliates in connection with the Transactions (including dividends to any Parent En-   tity of the Company to permit payment by such Parent Entity of such amounts);    (16) (i) so long as no Default or Event of Default has occurred and is continuing (or would re-   sult from), Restricted Payments (including loans or advances) in an aggregate amount outstanding at the   time made not to exceed the greater of $30.0 million and 3.25% of Total Assets at such time, and (ii) so   long as no Default or Event of Default has occurred and is continuing (or would result therefrom), any Re-   stricted Payments, so long as, immediately after giving pro forma effect to the payment of any such Re-   stricted Payment and the Incurrence of any Indebtedness the net proceeds of which are used to make such   Restricted Payment, the Leverage Ratio shall be no greater than 4.00 to 1.00; and   (17) mandatory redemptions of Disqualified Stock issued as a Restricted Payment or as con-   sideration for a Permitted Investment.   For purposes of determining compliance with this Section 3.3, in the event that a Restricted Payment meets   the criteria of more than one of the categories of Permitted Payments described in clauses (1) through (18) of para-   graph (b), or is permitted pursuant to paragraph (a) of this Section 3.3, the Company will be entitled to classify such   Restricted Payment (or portion thereof) on the date of its payment or later reclassify such Restricted Payment (or   portion thereof) in any manner that complies with this Section 3.3.     





 







   -65-                The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of such   Restricted Payment of the asset(s) or securities proposed to be paid, transferred or issued by the Company or such   Restricted Subsidiary, as the case may be, pursuant to such Restricted Payment.  The fair market value of any cash   Restricted Payment shall be its face amount, and the fair market value of any non-cash Restricted Payment, property   or assets other than cash shall be determined conclusively by the Company acting in good faith.   SECTION 3.4. Limitation on Restrictions on Distributions from Restricted Subsidiaries.   (a) The Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise   cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of   any Restricted Subsidiary to:   (1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or   pay any Indebtedness or other obligations owed to the Company or any Restricted Subsidiary;   (2) make any loans or advances to the Company or any Restricted Subsidiary; or   (3) sell, lease or transfer any of its property or assets to the Company or any Restricted Sub-   sidiary;   provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to divi-   dends or liquidating distributions being paid on common stock and (y) the subordination of (including the applica-   tion of any standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other   Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed to constitute such an en-   cumbrance or restriction.   (b) The provisions of Section 3.4(a) shall not prohibit:   (1) any encumbrance or restriction pursuant to (i) any Credit Facility, or (ii) any other   agreement or instrument, in each case, in effect at or entered into on the Issue Date;   (2) this Indenture, the Notes and the Note Guarantees;   (3) any encumbrance or restriction pursuant to an agreement or instrument of a Person or re-   lating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such   Person was acquired by or merged, amalgamated, consolidated or otherwise combined with or into the   Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such   agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an   acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all   or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant   to which such Person became a Restricted Subsidiary or was acquired by the Company or was merged,   amalgamated, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary   or entered into in contemplation of or in connection with such transaction) and outstanding on such date;   provided that, for the purposes of this clause (3), if another Person is the Successor Company, any Subsidi-   ary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or   assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Compa-   ny;   (4) any encumbrance or restriction:  (i) that restricts in a customary manner the subletting,   assignment or transfer of any property or asset that is subject to a lease, license or similar contract or   agreement, or the assignment or transfer of any lease, license or other contract or agreement; (ii) contained   in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing In-   debtedness of the Company or a Restricted Subsidiary permitted under this Indenture to the extent such en-   cumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such   mortgages, pledges, charges or other security agreements; or (iii) pursuant to customary provisions restrict-    





 







   -66-                ing dispositions of real property interests set forth in any reciprocal easement agreements of the Company   or any Restricted Subsidiary;   (5) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized   Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on   the property so acquired;   (6) any encumbrance or restriction imposed pursuant to an agreement entered into for the di-   rect or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the   Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pend-   ing the closing of such sale or disposition;   (7) customary provisions in leases, licenses, shareholder agreements, joint venture agree-   ments and other similar agreements, organizational documents and instruments;   (8) encumbrances or restrictions arising or existing by reason of applicable law or any appli-   cable rule, regulation or order, or required by any regulatory authority;   (9) any encumbrance or restriction on cash or other deposits or net worth imposed by cus-   tomers under agreements entered into in the ordinary course of business or consistent with past practice;   (10) any encumbrance or restriction pursuant to Hedging Obligations;   (11) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permit-   ted to be Incurred or issued subsequent to the Issue Date pursuant Section 3.2 that impose restrictions sole-   ly on the Foreign Subsidiaries party thereto or their Subsidiaries;   (12) any encumbrance or restriction arising pursuant to an agreement or instrument (which if   it relates to any Indebtedness, shall only be permitted if such Indebtedness is permitted to be Incurred pur-   suant to Section 3.2) if the encumbrances and restrictions contained in any such agreement or instrument   taken as a whole are not materially less favorable to the Holders than (i) the encumbrances and restrictions   contained in the Credit Agreement, together with the security documents associated therewith as in effect   on the Issue Date or (ii) either (A) the Company determines at the time of entry into such agreement or in-   strument that such encumbrances or restrictions will not adversely affect, in any material respect, the Com-   pany’s ability to make principal or interest payments on the Notes or (B) such encumbrance or restriction   applies only during the continuance of a default relating to such agreement or instrument;   (13) any encumbrance or restriction existing by reason of any lien permitted under Sec-   tion 3.6; or   (14) any encumbrance or restriction pursuant to an agreement or instrument effecting a refi-   nancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument re-   ferred to in clauses (1) to (13) of this Section 3.4(b) or this clause (14) (an “Initial Agreement”) or con-   tained in any amendment, supplement or other modification to an agreement referred to in clauses (1) to   (13) of this Section 3.4(b) or this clause (14); provided, however, that the encumbrances and restrictions   with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favor-   able in any material respect to the Holders taken as a whole than the encumbrances and restrictions con-   tained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement   or other modification relates (as determined in good faith by the Company).   SECTION 3.5. Limitation on Sales of Assets and Subsidiary Stock.   (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, make any As-   set Disposition unless:     





 







   -67-                (1) the Company or such Restricted Subsidiary, as the case may be, receives consideration   (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contin-   gent or otherwise) at least equal to the fair market value (such fair market value to be determined on the   date of contractually agreeing to such Asset Disposition), as determined in good faith by the Company, of   the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset   Disposition is a Permitted Asset Swap);   (2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent   the Asset Disposition is a Permitted Asset Swap), at least 75% of the consideration from such Asset Dispo-   sition (including by way of relief from, or by any other Person assuming responsibility for, any liabilities,   contingent or otherwise), together with all other Asset Dispositions since the Issue Date (on a cumulative   basis), received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or   Cash Equivalents; and   (3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is ap-   plied:   (i) to the extent the Company or any Restricted Subsidiary, as the case may be, elects   (or is required by the terms of any Indebtedness), (A) to prepay, repay or purchase any Indebted-   ness of a Non-Guarantor (in each case, other than Indebtedness owed to the Company or any Re-   stricted Subsidiary) or any Secured Indebtedness; including Indebtedness under the Credit Agree-   ment (or any Refinancing Indebtedness in respect thereof) within 365 days from the later of (a) the   date of such Asset Disposition and (b) the receipt of such Net Available Cash; provided, however,   that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this   clause (i), the Company or Restricted Subsidiary will retire such Indebtedness and will cause the   related commitment (if any) to be reduced in an amount equal to the principal amount so prepaid,   repaid or purchased; or (B) to prepay, repay or purchase Pari Passu Indebtedness; provided further   that, to the extent the Company redeems, repays or repurchases Pari Passu Indebtedness pursuant   to this clause (B), the Company shall equally and ratably reduce Obligations under the Notes as   provided under Section 5.7, through open-market purchases (to the extent such purchases are at or   above 100% of the principal amount thereof) or by making an offer (in accordance with the proce-   dures set forth below for an Asset Disposition Offer) to all Holders to purchase their Notes at   100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on   the amount of Notes that would otherwise be prepaid; and   (ii) to the extent the Company or such Restricted Subsidiary elects, to invest in or   commit to invest in Additional Assets (including by means of an investment in Additional Assets   by a Restricted Subsidiary with Net Available Cash received by the Company or another Restrict-   ed  Subsidiary) within 365 days from the later of (A) the date of such Asset Disposition and   (B) the receipt of such Net Available Cash; provided, however, that any such reinvestment in Ad-   ditional Assets made pursuant to a definitive binding agreement or a commitment approved by the   Board of Directors of the Company that is executed or approved within such time will satisfy this   requirement, so long as such investment is consummated within 270 days of such 365th day;   provided that, pending the final application of the amount of any such Net Available Cash in accordance with   clause (i) or clause (ii) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or   otherwise use such Net Available Cash in any manner not prohibited by this Indenture.   (b) The amount of any Net Available Cash from Asset Dispositions that is not applied or invested or   committed to be applied or invested as provided in the preceding paragraph will be deemed to constitute “Excess   Proceeds” under this Indenture.  On the 366th day after an Asset Disposition or the receipt of such Net Available   Cash, if the aggregate amount of Excess Proceeds under this Indenture exceeds $15.0 million, the Company will   within 10 Business Days be required to make an offer (“Asset Disposition Offer”) to all Holders of Notes issued   under such indenture and, to the extent the Company elects, to all holders of other outstanding Pari Passu Indebted-   ness, to purchase the maximum principal amount of Notes and any such Pari Passu Indebtedness to which the Asset   Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes     





 







   -68-                in an amount equal to 100% of the principal amount of the Notes and Pari Passu Indebtedness, in each case, plus   accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set   forth in this Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, and, with respect to   the Notes, in minimum denominations of $2,000 and in integral multiples of $1,000 in excess thereof.  The Compa-   ny will deliver notice of such Asset Disposition Offer electronically or by first-class mail, with a copy to the Trustee,   to each Holder of Notes at the address of such Holder appearing in the security register or otherwise in accordance   with the procedures of DTC, describing the transaction or transactions that constitute the Asset Disposition and of-   fering to repurchase the Notes for the specified purchase price on the date specified in the notice, which date will be   no earlier than 30 days and no later than 60 days from the date such notice is delivered, pursuant to the procedures   required by this Indenture and described in such notice.  The Company may satisfy the foregoing obligations with   respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to   all Net Available Cash prior to the expiration of the relevant 365 days (or such longer period provided above) or   with respect to any unapplied Excess Proceeds.   (c) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered   and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company   may use any remaining Excess Proceeds for any purpose not prohibited in this Indenture.  If the aggregate principal   amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness sur-   rendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds, the Excess Proceeds shall be   allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggre-   gate principal amount of tendered Notes and Pari Passu Indebtedness; provided that no Notes or other Pari Passu   Indebtedness will be selected and purchased in an unauthorized denomination.  Upon completion of any Asset Dis-   position Offer, the amount of Excess Proceeds shall be reset at zero.  Additionally, the Company may, at its option,   make an Asset Disposition Offer using proceeds from any Asset Disposition at any time after the consummation of   such Asset Disposition.  Upon consummation or expiration of any Asset Disposition Offer, any remaining Net   Available Cash shall not be deemed Excess Proceeds and the Company may use such Net Available Cash for any   purpose not prohibited by the Indenture.   (d) Notwithstanding any other provisions of this Section 3.5,   (i) to the extent that any of or all the Net Available Cash of any Asset Disposition by a Foreign   Subsidiary (a “Foreign Disposition”) is prohibited or delayed by applicable local law from being repatriated   to the United States, the portion of such Net Available Cash so affected will not be required to be applied in   compliance with this Section 3.5, and such amounts may be retained by the applicable Foreign Subsidiary   so long, but only so long, as the applicable local law will not permit repatriation to the United States (the   Company hereby agreeing to cause the applicable Foreign Subsidiary to promptly take all commercially   reasonable actions available under the applicable local law to permit such repatriation), and once such re-   patriation of any such affected Net Available Cash is permitted under the applicable local law, such repatri-   ation will be promptly effected and such repatriated Net Available Cash will be promptly (and in any event   not later than three (3) Business Days after such repatriation) applied (net of additional Taxes payable or   reserved against a result thereof) in compliance with this Section 3.5; and   (ii) to the extent that the Company has determined in good faith that repatriation of any of or all   the Net Available Cash of any Foreign Disposition would have an adverse Tax consequence (which for the   avoidance of doubt, includes, but is not limited to, any repatriation whereby doing so the Company, any   Restricted Subsidiary, or any of their respective affiliates and/or equity owners would incur a tax liability,   including as a result of a dividend or deemed dividend, or a withholding tax, but taking into account any   foreign tax credit or benefit received in connection with such repatriation) with respect to such Net Availa-   ble Cash, the Net Available Cash so affected may be retained by the applicable Foreign Subsidiary.   (e) To the extent that any portion of Net Available Cash payable in respect of the Notes is denomi-   nated in a currency other than U.S. dollars, the amount thereof payable in respect of the Notes shall not exceed the   net amount of funds in U.S. dollars that is actually received by the Company upon converting such portion into U.S.   dollars.   (f) For the purposes of Section 3.5(a)(2) hereof, the following will be deemed to be cash:     





 







   -69-                (1) the assumption by the transferee of Indebtedness or other liabilities contingent or other-   wise of the Company or a Restricted Subsidiary (other than Subordinated Indebtedness of the Company or   a Guarantor) and the release of the Company or such Restricted Subsidiary from all liability on such In-   debtedness or other liability in connection with such Asset Disposition;   (2) securities, notes or other obligations received by the Company or any Restricted Subsidi-   ary of the Company from the transferee that are converted by the Company or such Restricted Subsidiary   into cash or Cash Equivalents within 180 days following the closing of such Asset Disposition;   (3) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a   result of such Asset Disposition, to the extent that the Company and each other Restricted Subsidiary are   released from any Guarantee of payment of such Indebtedness in connection with such Asset Disposition;   (4) consideration consisting of Indebtedness of the Company (other than Subordinated In-   debtedness) received after the Issue Date from Persons who are not the Company or any Restricted Subsid-   iary; and   (5) any Designated Non-Cash Consideration received by the Company or any Restricted   Subsidiary in such Asset Dispositions having an aggregate fair market value, taken together with all other   Designated Non-Cash Consideration received pursuant to this covenant that is at that time outstanding, not   to exceed the greater of (i) $20.0 million and (ii) 2.25% of Total Assets (with the fair market value of each   item of Designated Non-Cash Consideration being measured at the time received and without giving effect   to subsequent changes in value).   (g) The Company will comply, to the extent applicable, with the requirements of Rule 14e-1 of the   Exchange Act and any other securities laws, rules and regulations thereunder to the extent such laws or regulations   are applicable in connection with the repurchase of Notes pursuant to this Section 3.5.  To the extent that the provi-   sions of any securities laws, rules or regulations conflict with the provisions of this Indenture, the Company will   comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations   described in this Indenture by virtue thereof.   (h) The provisions of this Indenture relative to the Company’s obligation to make an offer to repur-   chase the Notes as a result of an Asset Disposition may be waived or modified with the written consent of the Hold-   ers of a majority in principal amount of the then outstanding Notes.   SECTION 3.6. Limitation on Liens.  The Company shall not, and shall not permit any Guarantor to,   directly or indirectly, create, Incur, assume or permit to exist any Lien (except Permitted Liens) (each, an “Initial   Lien”) that secures obligations under any Indebtedness or any related guarantee, on any asset or property of the   Company or any Guarantor, unless:   (1) in the case of Liens securing Subordinated Indebtedness, the Notes and related Guaran-   tees are secured by a Lien on such property, assets or proceeds that is senior in priority to such Liens; or   (2) in all other cases, the Notes or the Guarantees are equally and ratably secured.   Any Lien created for the benefit of the Holders of the Notes pursuant to the preceding sentence shall pro-   vide by its terms that such Lien shall be automatically and unconditionally released and discharged upon the release   and discharge of the Initial Lien.   With respect to any Lien securing Indebtedness that was permitted to secure such Indebtedness at the time   of the Incurrence of such Indebtedness, such Lien shall also be permitted to secure any Increased Amount of such   Indebtedness.  The “Increased Amount” of any Indebtedness shall mean any increase in the amount of such Indebt-   edness in connection with any accrual of interest, the accretion of accreted value, the amortization of original issue   discount, the payment of interest in the form of additional Indebtedness with the same terms, accretion of original     





 







   -70-                issue discount or liquidation preference and increases in the amount of Indebtedness outstanding solely as a result of   fluctuations in the exchange rate of currencies or increases in the value of property securing Indebtedness.   SECTION 3.7. Limitation on Guarantees.   (a) The Company (a) shall not permit any of its Wholly-Owned Restricted Domestic Subsidiaries   that are Restricted Subsidiaries (and non-Wholly-Owned Restricted Domestic Subsidiaries if such non-Wholly   Owned Restricted Domestic Subsidiaries guarantee, or are a co-issuer of, other capital markets debt securities of the   Company or any Restricted Subsidiary or guarantee all or a portion of, or are a co-borrower under, the Credit   Agreement), other than a Guarantor, to guarantee the payment of any capital markets debt securities or Indebtedness   under any Credit Facility with a bank or other financial institution, in each case of the Company or any other Guar-   antor unless:   (1) such Restricted Subsidiary within 60 days executes and delivers a supplemental indenture   to this Indenture providing for a senior Guarantee by such Restricted Subsidiary, except that with respect to   a guarantee of Indebtedness of the Company or any Guarantor, if such Indebtedness is by its express terms   subordinated in right of payment to the Notes or such Guarantor’s Note Guarantee, any such guarantee by   such Restricted Subsidiary with respect to such Indebtedness shall be subordinated in right of payment to   such Guarantee substantially to the same extent as such Indebtedness is subordinated to the Notes or such   Guarantor’s Note Guarantee; and   (2) such Restricted Subsidiary waives and will not in any manner whatsoever claim or take   the benefit or advantage of, any rights of reimbursement, indemnity or subrogation or any other rights   against the Company or any other Restricted Subsidiary as a result of any payment by such Restricted Sub-   sidiary under its Guarantee until payment in full of Obligations under this Indenture.   provided that this Section 3.7 shall not be applicable (i) to any guarantee of any Restricted Subsidiary that existed at   the time such Person became a Restricted Subsidiary and was not incurred in connection with, or in contemplation   of, such Person becoming a Restricted Subsidiary, or (ii) in the event that the Guarantee of the Company’s obliga-   tions under the Notes or this Indenture by such Subsidiary would not be permitted under applicable law.   (b) The Company may elect, in its sole discretion, to cause any Subsidiary that is not otherwise re-   quired to be a Guarantor to become a Guarantor, in which case, such Subsidiary shall not be required to comply with   the 60-day period described in Section 3.7(a).   (c) If any Guarantor becomes an Immaterial Subsidiary, the Company shall have the right, by execu-   tion and delivery of a supplemental indenture to the Trustee, to cause such Immaterial Subsidiary to cease to be a   Guarantor, subject to the requirement described in the first paragraph above that such Subsidiary shall be required to   become a Guarantor if it ceases to be an Immaterial Subsidiary (except that if such Subsidiary has been properly   designated as an Unrestricted Subsidiary it shall not be so required to become a Guarantor or execute a supplemental   indenture); provided, further, that such Immaterial Subsidiary shall not be permitted to Guarantee the Credit Agree-   ment or capital market debt securities of the Company or other Guarantors, unless it again becomes a Guarantor.   SECTION 3.8. Limitation on Affiliate Transactions.   (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or in-   directly, enter into or conduct any transaction (including the purchase, sale, lease or exchange of any property or the   rendering of any service) with any Affiliate of the Company (an “Affiliate Transaction”) involving aggregate value   in excess of $10.0 million 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 be obtained in a   comparable transaction at the time of such transaction or the execution of the agreement providing for such   transaction in arm’s length dealings with a Person who is not such an Affiliate; and     





 







   -71-                (2) in the event such Affiliate Transaction involves an aggregate value in excess of   $20.0 million, the terms of such transaction have been approved by a majority of the members of the Board   of Directors.   Any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in clause (2) of this Sec-   tion 3.8(a) if such Affiliate Transaction is approved by a majority of the Disinterested Directors, if any.   (b) The provisions of clause (a) of this Section 3.8 above shall not apply to:   (1) any Restricted Payment permitted to be made pursuant to Section 3.3, or any Permitted   Investment;   (2) any issuance or sale of Capital Stock, options, other equity-related interests or other secu-   rities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, or   entering into, or maintenance of, any employment, consulting, collective bargaining or benefit plan, pro-   gram, agreement or arrangement, related trust or other similar agreement and other compensation arrange-   ments, options, warrants or other rights to purchase Capital Stock of the Company, any Restricted Subsidi-   ary or any Parent Entity, restricted stock plans, long-term incentive plans, stock appreciation rights plans,   participation plans or similar employee benefits or consultants’ plans (including valuation, health, insur-   ance, deferred compensation, severance, retirement, savings or similar plans, programs or arrangements) or   indemnities provided on behalf of officers, employees, directors or consultants approved by the Board of   Directors of the Company, in each case in the ordinary course of business or consistent with past practice;   (3) any Management Advances and any waiver or transaction with respect thereto;   (4) any transaction between or among the Company and any Restricted Subsidiary (or entity   that becomes a Restricted Subsidiary as a result of such transaction), or between or among Restricted Sub-   sidiaries;   (5) the payment of compensation, reasonable fees and reimbursement of expenses to, and   customary indemnities (including under customary insurance policies) and employee benefit and pension   expenses provided on behalf of, directors, officers, consultants or employees of the Company or any Re-   stricted Subsidiary (whether directly or indirectly and including through any Person owned or controlled by   any of such directors, officers or employees);   (6) the entry into and performance of obligations of the Company or any of its Restricted   Subsidiaries under the terms of any transaction arising out of, and any payments pursuant to or for purposes   of funding, any agreement or instrument in effect as of or on the Issue Date, as these agreements and in-   struments may be amended, modified, supplemented, extended, renewed or refinanced from time to time in   accordance with the other terms of this covenant or to the extent not more disadvantageous to the Holders   in any material respect;   (7) transactions with customers, clients, suppliers or purchasers or sellers of goods or ser-   vices, in each case in the ordinary course of business or consistent with past practice, which are fair to the   Company or the relevant Restricted Subsidiary in the reasonable determination of the Board of Directors or   the senior management of the Company or the relevant Restricted Subsidiary, or are on terms no less favor-   able than those that could reasonably have been obtained at such time from an unaffiliated party;   (8) any transaction between or among the Company or any Restricted Subsidiary and any Af-   filiate of the Company or an Associate or similar entity that would constitute an Affiliate Transaction solely   because the Company or a Restricted Subsidiary owns an equity interest in or otherwise controls such Af-   filiate, Associate or similar entity;   (9) issuances or sales of Capital Stock (other than Disqualified Stock or Designated Preferred   Stock) of the Company or options, warrants or other rights to acquire such Capital Stock and the granting     





 







   -72-                of registration and other customary rights in connection therewith or any contribution to capital of the   Company or any Restricted Subsidiary;   (10) (i) payments by the Company or any Restricted Subsidiary to any Permitted Holder   (whether directly or indirectly) of annual customary management, consulting, monitoring, refinancing, sub-   sequent transaction exit fees, advisory fees and related costs and expenses and indemnitees in connection   therewith and (ii) customary payments by the Company or any Restricted Subsidiary to any Permitted   Holder (whether directly or indirectly, including through any Parent Entity) for financial advisory, financ-   ing, underwriting or placement services or in respect of other investment banking activities, including in   connection with acquisitions or divestitures, which payments are approved by a majority of the Board of   Directors in good faith;    (11) payment to any Permitted Holder of all reasonable out of pocket expenses Incurred by   such Permitted Holder in connection with its direct or indirect investment in the Company and its Subsidi-   aries;   (12) the Transactions and the payment of all costs and expenses (including all legal, account-   ing and other professional fees and expenses) related to the Transactions;   (13) transactions in which the Company or any Restricted Subsidiary, as the case may be, de-   livers to the Trustee a letter from an Independent Financial Advisor stating that such transaction is fair to   the Company or such Restricted Subsidiary from a financial point of view or meets the requirements of   Section 3.8(a)(1);   (14) the existence of, or the performance by the Company or any Restricted Subsidiary of its   obligations under the terms of, any equityholders’ agreement (including any registration rights agreement   or purchase agreements related thereto) to which it is party as of the Issue Date and any similar agreement   that it may enter into thereafter; provided, however, that the existence of, or the performance by the Com-   pany or any Restricted Subsidiary of its obligations under any future amendment to the equityholders’   agreement or under any similar agreement entered into after the Issue Date will only be permitted under   this clause (14) to the extent that the terms of any such amendment or new agreement are not otherwise dis-   advantageous to the Holders in any material respects; and   (15) (i) investments by Affiliates in securities of the Company or any of its Restricted Subsid-   iaries (and payment of reasonable out-of-pocket expenses incurred by such Affiliates in connection there-   with) so long as the investment is being offered by the Company or such Restricted Subsidiary generally to   other non-affiliated third party investors on the same or more favorable terms and (ii) payments to Affili-   ates in respect of securities of the Company or any of its Restricted Subsidiaries contemplated in the fore-   going subclause (i) or that were acquired from Persons other than the Company and its Restricted Subsidi-   aries, in each case, in accordance with the terms of such securities.   SECTION 3.9. Change of Control.   (a) If a Change of Control occurs, unless the Company has previously or concurrently delivered a   redemption notice with respect to all of the outstanding Notes as set forth under Section 5.7(a) or Section 5.7(d), the   Company shall make an offer to purchase all of the Notes pursuant to the offer (the “Change of Control Offer”) at a   price in cash (the “Change of Control Payment”) equal to 101% of the aggregate principal amount thereof plus ac-   crued and unpaid interest, if any, to but excluding the date of repurchase, subject to the right of Holders of the Notes   of record on the relevant record date to receive interest due on the relevant interest payment date.  Within 30 days   following any Change of Control, the Company will deliver notice of such Change of Control Offer electronically or   by first class mail, with a copy to the Trustee, to each Holder of Notes at the address of such Holder appearing in the   security register or otherwise in accordance with the procedures of DTC, with the following information:     





 







   -73-                (1) that a Change of Control Offer is being made pursuant to this Section 3.9, and that all   Notes properly tendered pursuant to such Change of Control Offer will be accepted for payment by the   Company;   (2) the purchase price and the purchase date, which will be no earlier than 30 days nor later   than 60 days from the date such notice is delivered (the “Change of Control Payment Date”);   (3) that any Note not properly tendered will remain outstanding and continue to accrue inter-   est;   (4) that unless the Company defaults in the payment of the Change of Control Payment, all   Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue interest, on the   Change of Control Payment Date;   (5) that Holders electing to have any Notes purchased pursuant to a Change of Control Offer   will be required to surrender such Notes, with the form entitled “Option of Holder to Elect Purchase” on the   reverse of such Notes completed, to the Paying Agent specified in the notice at the address specified in the   notice prior to the close of business on the third Business Day preceding the Change of Control Payment   Date;   (6) that Holders will be entitled to withdraw their tendered Notes and their election to require   the Company to purchase such Notes; provided that the Paying Agent receives, not later than the close of   business on the second Business Day prior to the expiration date of the Change of Control Offer, a tele-   gram, facsimile transmission or letter setting forth the name of the Holder of the Notes, the principal   amount of Notes tendered for purchase, and a statement that such Holder is withdrawing its tendered Notes   and its election to have such Notes purchased;   (7) that Holders whose Notes are being purchased only in part will be issued new Notes and   such new Notes will be equal in principal amount to the unpurchased portion of the Notes surrendered.  The   unpurchased portion of the Notes must be equal to at least $2,000 or any integral multiple of $1,000 in ex-   cess of $2,000;   (8) if such notice is delivered prior to the occurrence of a Change of Control, stating that the   Change of Control Offer is conditional on the occurrence of such Change of Control; and   (9) the other instructions, as determined by the Company, consistent with this Section 3.9,   that a Holder must follow.   The Paying Agent will promptly deliver to each Holder of the Notes tendered the Change of Control Pay-   ment 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 surrendered, if any;   provided that each such new Note will be in a minimum principal amount of $2,000 or an integral multiple of   $1,000 in excess thereof.  The Company will publicly announce the results of the Change of Control Offer on or as   soon as practicable after the Change of Control Payment Date.   If the Change of Control Payment Date is on or after an interest record date and on or before the related in-   terest payment date, any accrued and unpaid interest 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.   (b) On the Change of Control Payment Date, the Company will, to the extent permitted by law,   (1) accept for payment all Notes issued by it or portions thereof properly tendered pursuant   to the Change of Control Offer,     





 







   -74-                (2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Pay-   ment in respect of all Notes or portions thereof so tendered, and   (3) deliver, or cause to be delivered, to the Trustee for cancellation the Notes so accepted to-   gether with an Officer’s Certificate to the Trustee stating that such Notes or portions thereof have been ten-   dered to and purchased by the Company.   (c) The Company will not be required to make a Change of Control Offer following a Change of   Control if (x) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compli-   ance 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 withdrawn under such Change of Control Offer or (y) a notice of   redemption of all outstanding Notes has been given pursuant to Section 5.7 hereof unless and until there is a default   in the payment of the redemption price on the applicable redemption date or the redemption is not consummated due   to the failure of a condition precedent contained in the applicable redemption notice to be satisfied.   (d) Notwithstanding anything to the contrary in this Section 3.9, a Change of Control 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.   (e) [Reserved]   (f) While the Notes are in global form and the Company makes an offer to purchase all of the Notes   pursuant to the Change of Control Offer, a Holder may exercise its option to elect for the purchase of the Notes   through the facilities of DTC, subject to its rules and regulations.   (g) The Company will comply, to the extent applicable, with the requirements of Rule 14e-1 under   the Exchange Act and any other securities laws, rules and regulations thereunder to the extent such laws or regula-   tions are applicable in connection with the repurchase of the Notes pursuant to a Change of Control Offer.  To the   extent that the provisions of any securities laws, rules or regulations conflict with the provisions of this Indenture,   the Company will comply with the applicable securities laws and regulations and shall not be deemed to have   breached its obligations described in this Indenture by virtue thereof.   SECTION 3.10. Reports.   (a) Notwithstanding that the Company may not be subject to the reporting requirements of Section   13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such   annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, from and after the Issue   Date, the Company shall furnish to the Trustee, within 15 days after the time periods specified below:   (1) within 90 days after the end of each fiscal year, all financial information (including audit-   ed financial statements) that would be required to be contained in an annual report on Form 10-K, or any   successor or comparable form, filed with the SEC, including a “Management’s discussion and analysis of   financial condition and results of operations” and a report on the annual financial statements by the Com-   pany’s independent registered public accounting firm;   (2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, all   financial information that would be required to be contained in a quarterly report on Form 10-Q, including   (A) “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” and   (B) audited financial statements prepared in accordance with GAAP, or any successor or comparable form,   filed with the SEC; and   (3) promptly after the occurrence of any of the following events, all current reports that   would be required to be filed with the SEC on Form 8-K or any successor or comparable form (if the Com-   pany had been a reporting company under Section 15(d) of the Exchange Act); provided, that the foregoing   shall not obligate the Company to (i) make available any information otherwise required to be included on     





 







   -75-                a Form 8-K regarding the occurrence of any such events if the Company determines in its good faith judg-   ment that such event that would otherwise be required to be disclosed is not material to the Holders of the   Notes or the business, assets, operations, financial positions or prospects of the Company and its Restricted   Subsidiaries taken as a whole or (ii) make available copies of any agreements, financial statements or other   items that would be required to be filed as exhibits to a current report on Form 8-K except for (x) material   Indebtedness and (y) historical and pro forma financial statements to the extent reasonably available:   (A) the entry into or termination of material agreements;   (B) significant acquisitions or dispositions;   (C) the sale of equity securities;   (D) bankruptcy;   (E) cross-default under direct material financial obligations;   (F) a change in the Company’s certifying independent auditor;   (G) the appointment or departure of directors or executive officers;   (H) non-reliance on previously issued financial statements; and   (F) change of control transactions,   in each case, in a manner that complies in all material respects with the requirements specified in such form, except   as described above or below and subject to exceptions consistent with the presentation of information in the Offering   Memorandum; provided, however, that the Company shall not be required (i) comply with Regulation G under the   Exchange Act or Item 10(e) of Regulation S-K with respect to any “non-GAAP” financial information contained   therein, (ii) provide any information that is not otherwise similar to information currently included in the Offering   Memorandum or (iii) provide the type of information contemplated by Rule 3-10 of Regulation S-X with respect to   separate financial statements for Guarantors or any financial statements for unconsolidated Subsidiaries or 50% or   less owned Persons contemplated by Rule 3-09 of Regulation S-X or any schedules required by Regulation S-X, or   in each case any successor provisions.  In addition, notwithstanding the foregoing, the Company shall not be re-   quired to (i) comply with Sections 302, 906 and 404 of the Sarbanes-Oxley Act of 2002, as amended, or (ii) other-   wise furnish any information, certificates or reports required by Items 307 or 308 of Regulation S-K.  To the extent   any such information is not so filed or furnished, as applicable, within the time periods specified above and such   information is subsequently filed or furnished, as applicable, the Company will be deemed to have satisfied its obli-   gations with respect thereto at such time and any Default with respect thereto shall be deemed to have been cured;   provided that such cure shall not otherwise affect the rights of the Holders under Section 6.1 hereof if Holders of at   least 30% in principal amount of the then total outstanding Notes have declared the principal, premium, if any, inter-   est and any other monetary obligations on all the then outstanding Notes to be due and payable immediately and   such declaration shall not have been rescinded or cancelled prior to such cure.  In addition, to the extent not satisfied   by the foregoing, the Company shall agree that, for so long as any Notes are outstanding, it shall furnish to Holders   and to securities analysts and prospective investors, upon their request, the information required to be delivered pur-   suant to Rule 144A(d)(4) under the Securities Act.   (b) At any time that any of the Company’s Subsidiaries are Unrestricted Subsidiaries, then the annu-   al and quarterly financial information required by the preceding paragraph will include a reasonably detailed presen-   tation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion   and Analysis of Financial Condition and Results of Operations” 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 of the Company.     





 







   -76-                (c) Substantially concurrently with the furnishing or making such information available to the Trus-   tee pursuant to the immediately preceding paragraph, the Company shall also post copies of such information re-   quired by immediately preceding paragraph on a website (which may be nonpublic and may be maintained by the   Company or a third party) to which access will be given to the Holders, prospective investors in the Notes (which   prospective investors shall be limited to “qualified institutional buyers” within the meaning of Rule 144A of the   Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act) that certify their status as   such to the reasonable satisfaction of the Company), and securities analysts and market making financial institutions   that are reasonably satisfactory to the Company.   (d) The Company shall also hold quarterly conference calls for the Holders of Notes to discuss fi-   nancial information for the previous quarter (it being understood that such quarterly conference call may be the same   conference call as with the Company’s (or as applicable, any of any Parent Entity’s) equity investors and analysts).    The conference call will be following the last day of each fiscal quarter of the Company and not later than 10 Busi-   ness Days from the time that the Company distributes the financial information as set forth in clause (a) above.  No   fewer than two days prior to the conference call, the Company shall issue a press release announcing the time and   date of such conference call and providing instructions for Holders, securities analysts and prospective investors to   obtain access to such call; provided, however, that such press release can be distributed solely to certified users of   the website described in clause (c) above.   (e) The Company may satisfy its obligations pursuant to this Section 3.10 with respect to financial   information relating to the Company by furnishing financial information relating to a Parent Entity; provided that   the same is accompanied by consolidating information that explains in reasonable detail the differences between the   information relating to a Parent Entity, on the one hand, and the information relating to the Company and its Re-   stricted Subsidiaries on a standalone basis, on the other hand.  For the avoidance of doubt, the consolidating infor-   mation referred to in the proviso in the preceding sentence need not be audited.   (f) Notwithstanding anything to the contrary set forth in this Section 3.10, if the Company or any   Parent Entity of the Company has furnished to the Holders of Notes or filed with the SEC the reports described in   the preceding paragraphs with respect to the Company or any Parent Entity, the Company shall be deemed to be in   compliance with the provisions of this Section 3.10.   SECTION 3.11. Future Guarantors.   (a) If on or after the Issue Date (1) a Wholly Owned Restricted Domestic Subsidiary (other than an   Immaterial Subsidiary) that is not a Guarantor Guarantees the Credit Agreement, or (2) the Company or any of its   Restricted Subsidiaries acquires or creates a Wholly Owned Restricted Domestic Subsidiary (other than an Immate-   rial Subsidiary) and such Wholly Owned Restricted Domestic Subsidiary Guarantees the Credit Agreement, then, in   each case, the Company shall cause such Wholly Owned Restricted Domestic Subsidiary to become a Guarantor and   execute and deliver (within five Business Days of guaranteeing the Credit Agreement or becoming a Wholly Owned   Restricted Domestic Subsidiary, as the case may be) to the Trustee a supplemental indenture substantially in the   form of Exhibit B hereto, pursuant to which such Wholly Owned Restricted Domestic Subsidiary shall uncondition-   ally Guarantee, on a joint and several basis with the other Guarantors, the full and prompt payment of the principal   of, premium, if any, interest, in respect of the Notes on a senior basis and all other obligations under this Indenture.   (b) The Company shall not permit any Wholly Owned Restricted Domestic Subsidiary (other than   an Immaterial Subsidiary), directly or indirectly, to Guarantee the Credit Agreement unless such Wholly Owned   Restricted Domestic Subsidiary (i) is a Guarantor or (ii) within five Business Days executes and delivers to the Trus-   tee a supplemental indenture substantially in the form of Exhibit B hereto, pursuant to which such Wholly Owned   Restricted Domestic Subsidiary shall unconditionally Guarantee, on a joint and several basis with the other Guaran-   tors, the full and prompt payment of the principal of, premium, if any, interest in respect of the Notes on a senior   basis and all other obligations under this Indenture.   (c) Each Guarantee shall be released in accordance with Article X.     





 







   -77-                SECTION 3.12. Maintenance of Office or Agency.   The Company will maintain an office or agency where the Notes may be presented or surrendered for pay-   ment, where, if applicable, the Notes may be surrendered for registration of transfer or exchange.  The corporate   trust office of the Trustee, which initially shall be located at Wilmington Trust, National Association, 246 Goose   Lane, Suite 105, Guilford, Connecticut, Attention: Townsquare Media, Inc. Administrator, shall be such office or   agency of the Company, unless the Company shall designate and maintain some other office or agency for one or   more of such purposes.  The Company will give prompt written notice to the Trustee of any change in the location   of any 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 and surrenders may be made or served at   the corporate trust office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such   presentations and surrenders.   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 any such designa-   tion.  The Company will give prompt written notice to the Trustee of any such designation or rescission and any   change in the location of any such other office or agency.   SECTION 3.13. Corporate Existence.  Except as otherwise provided in this Article III, Article IV and   Section 10.2(b), the Company will 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   Restricted Subsidiary and the rights (charter and statutory), licenses and franchises of the Company and each Re-   stricted Subsidiary; provided, however, that the Company shall not be required to preserve any such right, license or   franchise or the corporate, partnership, limited liability company or other existence of any Restricted Subsidiary if   the respective Board of Directors or, with respect to a Restricted Subsidiary that is not a Significant Subsidiary (or   group of Restricted Subsidiaries that taken together would not be a Significant Subsidiary), senior management of   the Company determines that the preservation thereof is no longer desirable in the conduct of the business of the   Company and each of its Restricted Subsidiaries, taken as a whole, and that the loss thereof is not, and will not be,   disadvantageous in any material respect to the Holders.   SECTION 3.14. Payment of Taxes.  The Company shall pay or discharge or cause to be paid or dis-   charged, before the same shall become delinquent, all material taxes, assessments and governmental charges levied   or imposed upon the Company or any Subsidiary; provided, however, that the Company shall not be required to pay   or discharge or cause to be paid or discharged any such tax, assessment, charge or claim the amount, applicability or   validity of which is being contested in good faith by appropriate proceedings and for which appropriate reserves, if   necessary (in the good faith judgment of management of the Company), are being maintained in accordance with   GAAP or where the failure to effect such payment will not be disadvantageous to the Holders.   SECTION 3.15. [Reserved].   SECTION 3.16. Compliance Certificate.  The Company shall deliver to the Trustee within 120 days af-   ter the end of each fiscal year of the Company an Officer’s Certificate, one of the signers of which shall be the prin-   cipal executive officer, principal financial officer or principal accounting officer of the Company, stating that in the   course of the performance by the signer of his or her duties as an Officer of the Company he or she would normally   have knowledge of any Default or Event of Default and whether or not the signer knows of any Default or Event of   Default that occurred during the previous fiscal year; provided that no such Officer’s Certificate shall be required for   any fiscal year ended prior to the Issue Date.  If such Officer does have such knowledge, the certificate shall de-   scribe the Default or Event of Default, its status and the action the Company is taking or proposes to take with re-   spect thereto.   SECTION 3.17. Further Instruments and Acts.  Upon request of the Trustee or as necessary to comply   with future developments or requirements, the Company will execute and deliver such further instruments and do   such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Inden-   ture.     





 







   -78-                SECTION 3.18. Conduct of Business.  The Company will not, and will not permit any of its Restricted   Subsidiaries to, engage in any businesses other than any business conducted or proposed to be conducted by the   Company and its Restricted Subsidiaries on the Issue Date or any business that is similar, reasonably related, inci-   dental or ancillary thereto or any reasonable extension thereof.   SECTION 3.19. Statement by Officers as to Default.  The Company shall deliver to the Trustee, as   soon as possible and in any event within 30 days after the Company becomes aware of the occurrence of any Default   or Event of Default, an Officer’s Certificate setting forth the details of such Event of Default or Default, its status   and the actions which the Company is taking or proposes to take with respect thereto.   SECTION 3.20. Designation of Restricted and Unrestricted Subsidiaries.  The Company may designate   any Restricted Subsidiary to be an Unrestricted Subsidiary if that designation would not cause a Default. If a Re-   stricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate fair market value of all outstanding   Investments owned by the Company and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted   Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount   available for Restricted Payments as described in Section 3.3 herein or under one or more clauses of the definition of   Permitted Investments, as determined by the Company. That designation will only be permitted if the Investment   would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted   Subsidiary. The Company may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesig-   nation would not cause a Default.   Any designation of a Subsidiary of the Company as an Unrestricted Subsidiary will be evidenced to the   Trustee by filing with the Trustee an Officer’s Certificate certifying that such designation complies with the preced-   ing conditions and was permitted by Section 3.3 herein. If, at any time, any Unrestricted Subsidiary would fail to   meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidi-   ary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Re-   stricted Subsidiary of the Company as of such date and, if such Indebtedness is not permitted to be incurred as of   such date by Section 3.2 herein, the Company will be in default of such covenant.   The Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of the   Company; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Sub-   sidiary of the Company of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will   only be permitted if (1) such Indebtedness is permitted under Section 3.2 herein, calculated on a pro forma basis as   if such designation had occurred at the beginning of the applicable reference period; and (2) no Default or Event of   Default would be in existence following such designation. Any such designation by the Company shall be evidenced   to the Trustee by filing with the Trustee an Officer’s Certificate certifying that such designation complies with the   preceding conditions.   SECTION 3.21. Suspension of Certain Covenants on Achievement of Investment Grade Status.  Fol-   lowing the first day the Notes have achieved Investment Grade Status and no Default or Event of Default has oc-   curred and is continuing under this Indenture, the beginning on that day and ending on a Reversion Date (such peri-   od a “Suspension Period”), the Company and its Restricted Subsidiaries will not be subject to Sections 3.2, 3.3, 3.4,   3.5, 3.7, 3.8 and 4.1(a)(3).   On each Reversion Date, all Indebtedness Incurred during the Suspension Period will be classified as hav-   ing been Incurred pursuant to Section 3.2(a) or one of the clauses of Section 3.2(b) (to the extent such Indebtedness   would be permitted to be Incurred thereunder as of the Reversion Date and after giving effect to the Indebtedness   Incurred prior to the Suspension Period and outstanding on the Reversion Date).  To the extent such Indebtedness   would not be so permitted to be Incurred pursuant to Sections 3.2(a) or (b), such Indebtedness will be deemed to   have been outstanding on the Issue Date, so that it is classified as permitted under Section 3.2(b)(5)(iii).  Calcula-   tions made after the Reversion Date of the amount available to be made as Restricted Payments under Section 3.3   will be made as though Section 3.3 had been in effect since the Issue Date and throughout the Suspension Period.    Accordingly, Restricted Payments made during the Suspension Period will reduce the amount available to be made   as Restricted Payments under Section 3.3(a).  As described above, however, no Default, Event of Default or breach   of any kind shall be deemed to have occurred as a result of the Reversion Date occurring on the basis of any actions   taken or the continuance of any circumstances resulting from actions taken or the performance of obligations under     





 







   -79-                agreements entered into by the Company or any of the Restricted Subsidiaries during the Suspension Period (other   than agreements to take actions after the Reversion Date that would not be permitted outside of the Suspension Peri-   od entered into in contemplation of the Reversion Date).   During the Suspension Period, no Restricted Subsidiary may be designated as an Unrestricted Subsidiary.   The Company, in an Officer’s Certificate, shall provide the Trustee notice of any Covenant Suspension or   Reversion Date.  The Trustee will have no obligation to (i) independently determine or verify if such events have   occurred or (ii) make any determination regarding the impact of actions taken during the Suspension Period on the   Company’s future compliance with its covenants.  In addition, the Trustee shall have no duty to monitor the ratings   of the Notes, shall not be deemed to have any knowledge of the ratings of the Notes and shall have no duty to notify   Holders if the Notes achieve Investment Grade Status or if the Reversion Date occurs.   SECTION 3.22. Limitation on Activities of License Subsidiaries.  So long as a License Subsidiary does   not Guarantee the Notes, such License Subsidiary shall not (i) incur any Indebtedness or (ii) create, incur, assume or   suffer to exist any Liens upon any of its property, assets, income or profits, whether now owned or hereafter ac-   quired, except Permitted Liens.   ARTICLE IV      SUCCESSOR COMPANY; SUCCESSOR PERSON   SECTION 4.1. Merger and Consolidation.   (a) The Company will not consolidate with or merge or amalgamate with or into or convey, transfer   or lease all or substantially all its assets to, any Person, unless:   (1) the resulting, surviving or transferee Person (the “Successor Company”) will be a Person   organized and existing under the laws of the United States of America, any State of the United States or the   District of Columbia and the Successor Company (if not the Company) will expressly assume, by supple-   mental indenture, executed and delivered to the Trustee, all the obligations of the Company under the Notes   and this Indenture and if such Successor Company is not a corporation, a co-obligor of the Notes is a cor-   poration organized or existing under such laws;   (2) immediately after giving effect to such transaction (and treating any Indebtedness that   becomes an obligation of the applicable Successor Company or any Subsidiary of the applicable Successor   Company as a result of such transaction as having been Incurred by the applicable Successor Company or   such Subsidiary at the time of such transaction), no Default or Event of Default shall have occurred and be   continuing;   (3) immediately after giving effect to such transaction, either (a) the applicable Successor   Company would be able to Incur at least an additional $1.00 of Indebtedness pursuant to Section 3.2(a)   hereof or (b) the Leverage Ratio would not be greater than it was immediately prior to giving effect to such   transaction; and   (4) the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion   of Counsel, each to the effect that such consolidation, merger, amalgamation or transfer and such supple-   mental indenture (if any) comply with this Indenture and an Opinion of Counsel to the effect that such sup-   plemental indenture (if any) have been duly authorized, executed and delivered and are a legal, valid and   binding agreement enforceable against the applicable Successor Company; provided that in giving an Opin-   ion of Counsel, counsel may rely on an Officer’s Certificate as to any matters of fact, including as to satis-   faction of clauses (2) and (3) above.   (b) For purposes of this Section 4.1, the sale, lease, conveyance, assignment, transfer, or other dispo-   sition of all or substantially all of the properties and assets of one or more Subsidiaries of the Company, which prop-    





 







   -80-                erties 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 transfer of all or substantial-   ly all of the properties and assets of the Company.   (c) The Successor Company will succeed to, and be substituted for, and may exercise every right   and power of, the Company under the Notes and this Indenture but in the case of a lease of all or substantially all its   assets, the predecessor company will not be released from its obligations under such Notes and this Indenture.   (d) Notwithstanding the preceding clauses (a)(2), (a)(3) and (a)(4) (which do not apply to transac-   tions referred to in this sentence), (i) any Restricted Subsidiary of the Company may consolidate or otherwise com-   bine with, merge or amalgamate into or transfer all or part of its properties and assets to the Company and (ii) any   Restricted Subsidiary may consolidate or otherwise combine with, merge or amalgamate into or transfer all or part   of its properties and assets to any other Restricted Subsidiary.  Notwithstanding the preceding clauses (a)(2) and   (a)(3) (which do not apply to the transactions referred to in this sentence), the Company may consolidate or other-   wise combine with or merge or amalgamate into an Affiliate incorporated or organized for the purpose of changing   the legal domicile of the Company, reincorporating the Company in another jurisdiction, or changing the legal form   of the Company.   (e) The foregoing provisions (other than the requirements of clause (a)(2)) shall not apply to the cre-   ation of a new Subsidiary as a Restricted Subsidiary of the Company.   (f) No Guarantor may:   (1) consolidate with or merge or amalgamate with or into any Person; or   (2) sell, convey, transfer or dispose of, all or substantially all its assets, in one transaction or   a series of related transactions, to, any Person; or   (3) permit any Person to merge or amalgamate with or into such Guarantor, unless   (i) the other Person is the Company or any Restricted Subsidiary that is a Guarantor or   becomes a Guarantor concurrently with the transaction; or   (ii) (A) either (x) the Company or a Guarantor is the continuing Person or (y) the re-   sulting, surviving or transferee Person expressly assumes all of the obligations of the Guarantor   under its Guarantee and this Indenture; and   (B) immediately after giving effect to the transaction, no Default has occurred and is   continuing; or   (iii) The transaction constitutes a sale or other disposition (including by way of consoli-   dation, merger or amalgamation) of the Guarantor or the sale or disposition of all or substantially   all the assets of the Guarantor (in each case other than to the Company or a Restricted Subsidiary)   otherwise permitted by this Indenture.   ARTICLE V      REDEMPTION OF SECURITIES   SECTION 5.1. Notices to Trustee.  If the Company elects to redeem Notes pursuant to the optional   redemption provisions of Section 5.7 hereof, it must furnish to the Trustee, at least 30 days but not more than 60   days before a redemption date, an Officer’s Certificate setting forth:   (1) the clause of this Indenture pursuant to which the redemption shall occur;     





 







   -81-                (2) the redemption date;   (3) the principal amount of Notes to be redeemed; and   (4) the redemption price.   Any optional redemption referenced in such Officer’s Certificate may be cancelled by the Company at any   time prior to notice of redemption being sent to any Holder and thereafter shall be null and void.   SECTION 5.2. Selection of Notes to Be Redeemed or Purchased.  If less than all of the Notes are to be   redeemed pursuant to Section 5.7 or purchased in an Asset Disposition Offer pursuant to Section 3.5 or a redemption   pursuant to Section 5.9, the Trustee will select Notes for redemption or purchase (a) if the Notes are in global form,   on a pro rata basis or by lot or such similar method in accordance with the procedures of DTC and (b) if the Notes   are in definitive form, on a pro rata basis (subject to adjustments to maintain the authorized Notes denomination   requirements) except:   (1) if the Notes are listed on any national securities exchange, in compliance with the re-   quirements of the principal national securities exchange on which the Notes are listed; or   (2) if otherwise required by law.   No Notes in an unauthorized denomination or of $2,000 in aggregate principal amount or less shall be re-   deemed in part.  In the event of partial redemption, the particular Notes to be redeemed or purchased will be select-   ed, unless otherwise provided herein, not less than 30 days nor more than 60 days prior to the redemption or pur-   chase date by the Trustee from the outstanding Notes not previously called for redemption or purchase.   The Trustee will promptly notify the Company in writing of the Notes selected for redemption or purchase   and, in the case of any Note selected for partial redemption or purchase, the principal amount thereof to be redeemed   or purchased.  Notes and portions of Notes selected will be in amounts of $2,000 or whole multiples of $1,000; ex-   cept that if all of the Notes of a Holder are to be redeemed or purchased, the entire outstanding amount of Notes held   by such Holder, even if not a multiple of $1,000, shall be redeemed or purchased.  Except as provided in the preced-   ing sentence, provisions of this Indenture that apply to Notes called for redemption or purchase also apply to por-   tions of Notes called for redemption or purchase.   SECTION 5.3. Notice of Redemption.  At least 30 days but not more than 60 days before a redemp-   tion date, the Company will send or cause to be sent, by electronic delivery or by first class mail postage prepaid, a   notice of redemption to each Holder whose Notes are to be redeemed at the address of such Holder appearing in the   security register or otherwise in accordance with the procedures of DTC, except that redemption notices may be sent   more than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of the Notes or a   satisfaction and discharge of this Indenture pursuant to Articles VIII or XI hereof.   The notice will identify the Notes (including the CUSIP or ISIN number) to be redeemed and will state:   (1) the redemption date;   (2) the redemption price;   (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 prin-   cipal amount equal to the unredeemed portion will be issued upon cancellation of the original Note;   (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;     





 







   -82-                (6) that, unless the Company defaults in making such redemption payment, interest 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; and   (8) that no representation is made as to the correctness or accuracy of the CUSIP number, if   any, listed in such notice or printed on the Notes.   At Company’s request, the Trustee will give the notice of redemption in the Company’s name and at its ex-   pense; provided, however, that the Company has delivered to the Trustee, at least 45 days prior to the redemption   date (or such shorter period as the Trustee may agree but in no event less than 30 days), an Officer’s Certificate re-   questing that the Trustee give such notice and setting forth the information to be stated in such notice as provided in   the preceding paragraph.   Notice of any redemption of the Notes in connection with a corporate transaction (including but not limited   to an Equity Offering, an incurrence of Indebtedness or a Change of Control) may, at the Company’s discretion, be   given prior to the completion thereof and any such redemption or notice may, at the Company’s discretion, be sub-   ject to one or more conditions precedent, including, but not limited to, completion of the related transaction.  If such   redemption or purchase is so subject to satisfaction of one or more conditions precedent such notice shall describe   each such condition, and if applicable, shall state that, in the Company’s discretion, the redemption date may be de-   layed until such time as any or all such conditions shall be satisfied, or such redemption or purchase may not occur   and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied by the   redemption date, or by the redemption date as so delayed.  In addition, the Company may provide in such notice that   payment of the redemption price and performance of the Company’s obligations with respect to such redemption   may be performed by another Person.   SECTION 5.4. [Reserved]   SECTION 5.5. Deposit of Redemption or Purchase Price.  Prior to 11:00 a.m. Eastern Time on the re-   demption or purchase date, the Company will deposit with the Trustee or with the Paying Agent money sufficient to   pay the redemption or purchase price of and accrued interest on, all Notes to be redeemed or purchased on that date.    The Trustee or the Paying Agent will 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 or purchase price of, and   accrued interest, on, all Notes to be redeemed or purchased.   If the Company complies with the provisions of the preceding paragraph, on and after the redemption or   purchase date, interest will cease to accrue on the Notes or the portions of Notes called for redemption or purchase.    If a Note is redeemed or purchased 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 or purchase is not so paid upon surrender   for redemption or purchase because of the failure of the Company to comply with the preceding paragraph, interest   shall be paid on the unpaid principal, from the redemption or purchase 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 3.1 hereof.   SECTION 5.6. Notes Redeemed or Purchased in Part.  Upon surrender of a Note that is redeemed or   purchased in part, the Company will issue and, upon receipt of an Issuer Order, the Trustee will authenticate for the   Holder at the expense of the Company a new Note equal in principal amount to the unredeemed or unpurchased por-   tion of the Note surrendered; provided, that each such new Note will be in a minimum principal amount of $2,000 or   integral multiple of $1,000 in excess thereof.     





 







   -83-                SECTION 5.7. Optional Redemption.   (a) At any time prior to April 1, 2018, the Company may redeem the Notes in whole or in part, at its   option, upon not less than 30 nor more than 60 days’ prior notice, with a copy to the Trustee, to each Holder of   Notes to the address of such Holder appearing in the Notes Register, at a redemption price (expressed as percentages   of principal amount of the Notes to be redeemed) equal to 100.000% of the principal amount of Notes redeemed   plus the relevant Applicable Premium as of, and accrued and unpaid interest, to but excluding the date of redemption   (the “Redemption Date”), subject to the rights of holders of the Notes on the relevant record date to receive interest   due on the relevant interest payment date.   (b) At any time and from time to time prior to April 1, 2018, the Company may, at its option, on one   or more occasions, upon not less than 30 nor more than 60 days’ prior notice, with a copy to the Trustee, to each   Holder of Notes to the address of such Holder appearing in the Notes Register, redeem up to 40% of the original   aggregate principal amount of Notes issued under this Indenture at a redemption price (expressed as percentages of   principal amount of the Notes to be redeemed) equal to 106.500% of the aggregate principal amount thereof, plus   accrued and unpaid interest, to but excluding the applicable Redemption Date, subject to the right of Holders of rec-   ord of the Notes on the relevant record date to receive interest due on the relevant interest payment date, with the net   cash proceeds received by the Company of one or more Equity Offerings of the Company; provided that not less   than 60% of the original aggregate principal amount of Notes initially issued under the Indenture remains outstand-   ing immediately after the occurrence of each such redemption (excluding Notes held by the Company or any of its   Restricted Subsidiaries); provided further that each such redemption occurs not later than 180 days after the date of   closing of the related Equity Offering. The Trustee shall select the Notes to be purchased in the manner described   under Sections 5.1 through 5.6.   (c) Except pursuant to clauses (a) and (b) of this Section 5.7, the Notes will not be redeemable at the   Company’s option prior to April 1, 2018.   (d) At any time and from time to time on or after April 1, 2018, the Company may redeem the   Notes, in whole or in part, upon not less than 30 nor more than 60 days’ prior notice, with a copy to the Trustee, to   each Holder of Notes to the address of such Holder appearing in the Notes Register at the redemption prices (ex-   pressed as percentages of principal amount of the Notes to be redeemed) set forth in the table below, plus accrued   and unpaid interest thereon, if any, to but excluding the applicable Redemption Date, subject to the right of Holders   of record of the Notes on the relevant record date to receive interest due on the relevant interest payment date, if   redeemed during the twelve-month period beginning on April 1 of each of the years indicated in the table below:   Period Percentage   2018 ................................................................................................  104.875%   2019 ................................................................................................  103.250%   2020 ................................................................................................  101.625%   2021 and thereafter .........................................................................  100.000%      (e) Notwithstanding the foregoing, in connection with any tender offer for the Notes, including a   Change of Control Offer or Asset Disposition 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 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 shall have the right upon not less than 30 nor more   than 60 days’ prior notice, with a copy to the Trustee, to each Holder of Notes to the address of such Holder appear-   ing in the Notes Register, given not more than 30 days following such purchase date to redeem all Notes that remain   outstanding following such purchase at a redemption 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, thereon,   to but not including, the date of such redemption.   (f) Unless the Company defaults in the payment of the redemption price, interest will cease to ac-   crue on the Notes or portions thereof called for redemption on the applicable Redemption Date.     





 







   -84-                (g) Any redemption pursuant to this Section 5.7 shall be made pursuant to the provisions of Sec-   tions 5.1 through 5.6.   SECTION 5.8. Mandatory Redemption.  The Company is not required to make mandatory redemption   or sinking fund payments with respect to the Notes; provided however, that under certain circumstances, the Com-   pany may be required to offer to purchase Notes under Section 3.5 and Section 3.9.  The Company may at any time   and from time to time purchase Notes in the open market or otherwise.   ARTICLE VI      DEFAULTS AND REMEDIES   SECTION 6.1. Events of Default.    (a) Each of the following is an “Event of Default”:   (1) default in any payment of interest on any Note when due and payable, continued   for 30 days;   (2) default in the payment of the principal amount of or premium, if any, on any   Note issued under this Indenture when due at its Stated Maturity, upon optional redemption, upon   required repurchase, upon declaration or otherwise;   (3) failure to comply with the Company’s agreements or obligations contained in   this Indenture for 60 days after written notice by the Trustee on behalf of the Holders or by the   Holders of at least 30% in principal amount of the outstanding Notes;   (4) default under any mortgage, indenture or instrument under which there may be   issued or by which there may be secured or evidenced any Indebtedness for money borrowed by   the Company or any of its Restricted Subsidiaries (or the payment of which is Guaranteed by the   Company or any of its Restricted Subsidiaries), other than Indebtedness owed to the Company or a   Restricted Subsidiary, whether such Indebtedness or Guarantee now exists, or is created after the   date hereof, which default:   (A) is caused by a failure to pay principal of such Indebtedness, at its stated   final maturity (after giving effect to any applicable grace periods provided in such In-   debtedness); or   (B) results in the acceleration of such Indebtedness prior to its stated final   maturity;   and, in each case, the principal amount of any such Indebtedness, together with the principal amount of any   other such Indebtedness under which there has been a payment default or the maturity of which has been so   accelerated, aggregates to $30.0 million or more;   (5) failure by the Company or any Significant Subsidiary (or group of Restricted   Subsidiaries that together (as of the latest audited consolidated financial statements of the Compa-   ny and its Restricted Subsidiaries) would constitute a Significant Subsidiary), to pay final judg-   ments aggregating in excess of $30.0 million other than any judgments covered by indemnities   provided by, or insurance policies issued by, reputable and creditworthy issuers, which final   judgments remain unpaid, undischarged and unstayed for a period of more than 60 days after such   judgment becomes final, and in the event such judgment is covered by insurance, an enforcement   proceeding has been commenced by any creditor upon such judgment or decree which is not   promptly stayed;     





 







   -85-                (6) any Note Guarantee ceases to be in full force and effect, other than (x) in ac-   cordance with the terms of this Indenture, (y) a Guarantor denies or disaffirms its obligations un-   der its Note Guarantee, other than in accordance with the terms of this Indenture or upon release of   such Note Guarantee in accordance with this Indenture or (z) in connection with the bankruptcy of   a Guarantor, so long as the aggregate assets of such Guarantor and any other Guarantor whose   Note Guarantee ceased or ceases to be in full force as a result of a bankruptcy as less than $2.0   million;   (7) the Company or any Guarantor that is Significant Subsidiary or any group of   Guarantors that together (as of the latest audited consolidated financial statements of the Company   and its Restricted Subsidiaries), would constitute a Significant Subsidiary pursuant to or within the   meaning of any Bankruptcy Law:   (A) commences a voluntary case or proceeding;   (B) consents to the entry of an order for relief against it in an involuntary   case or proceeding;   (C) consents to the appointment of a Custodian of it or for substantially all   of its property;   (D) makes a general assignment for the benefit of its creditors;   (E) consents to or acquiesces in the institution of a bankruptcy or an insol-   vency proceeding against it; or   (F) takes any comparable action under any foreign laws relating to insol-   vency;   (8) a court of competent jurisdiction enters an order or decree under any Bankruptcy   Law that:   (A) is for relief against the Company or any Guarantor that is a Significant   Subsidiary or any group of Guarantors that, taken together as of the latest audited consol-   idated financial statements for the Company, would constitute a Significant Subsidiary, in   an involuntary case;   (B) appoints a Custodian of the Company, any Guarantor that is a Signifi-   cant Subsidiary or any group of Guarantors that, taken together as of the latest audited   consolidated financial statements for the Company, would constitute a Significant Sub-   sidiary, for substantially all of its property;   (C) orders the winding up or liquidation of the Company, any Guarantor   that is a Significant Subsidiary or any group of Guarantors that, taken together as of the   latest audited consolidated financial statements for the Company, would constitute a Sig-   nificant Subsidiary; or   (D) or any similar relief is granted under any foreign laws and the order,   decree or relief remains unstayed and in effect for 60 consecutive days.   (b) If a Default for a failure to report or failure to deliver a required certificate in connection with an-   other default (the “Initial Default”) occurs, then at the time such Initial Default is cured, such Default for a failure to   report or failure to deliver a required certificate in connection with another default that resulted solely because of   that Initial Default shall also be cured without any further action.     





 







   -86-                (c) Any Default or Event of Default for the failure to comply with the time periods prescribed in Sec-   tion 3.10 hereof or otherwise to deliver any notice or certificate pursuant to any other provision of this Indenture   shall be deemed to be cured upon the delivery of any such report required by such provision or such notice or certif-   icate, as applicable, even though such delivery is not within the prescribed period specified in this Indenture.   SECTION 6.2. Acceleration.  If any Event of Default (other than an Event of Default described in   clause (7) or (8) of Section 6.1(a)) occurs and is continuing, the Trustee by notice to the Company, or the Holders of   at least 30% in principal amount of the outstanding Notes by written notice to the Company and the Trustee, may,   and the Trustee at the request of such Holders shall (subject to the Trustee’s rights under Section 6.5), declare the   principal of, premium, if any, and accrued and unpaid interest, if any, on all the Notes to be immediately due and   payable.  Upon such a declaration, such principal, premium and accrued and unpaid interest, will be due and payable   immediately.     In the event of any Event of Default specified in clause (4) of Section 6.1(a), such Event of Default and all   consequences thereof 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) (x) the Indebtedness that gave rise to such Event of Default shall have been dis-   charged in full; or   (y) 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   (z) if the default that is the basis for such Event of Default has been cured; and   (2) (a) the annulment of the acceleration of the Notes would not conflict with any   judgment or decree of a court of competent jurisdiction; and   (b) all existing Events of Default, except nonpayment of principal, premium or interest, on   the Notes that became due solely because of the acceleration of the Notes, have been cured or waived.   If an Event of Default described in clause (7) or (8) of Section 6.1(a) occurs and is continuing, the principal   of, premium and accrued and unpaid interest, on all Notes will become and be immediately due and payable without   any declaration or other act on the part of the Trustee or any Holders.   SECTION 6.3. Other Remedies.  If an Event of Default occurs and is continuing, the Trustee may pur-   sue any available remedy by proceeding at law or in equity to collect the payment of principal of, or premium, if   any, or interest, 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.  No remedy is exclusive of any other remedy.  All available remedies are cumulative.   SECTION 6.4. Waiver of Past Defaults.  The Holders of a majority in aggregate principal amount of   the then outstanding Notes by written notice to the Trustee may, on behalf of all of the Holders, (a) waive, by their   consent (including, without limitation, consents obtained in connection with a purchase of, or tender offer or ex-   change offer for, Notes), an existing Default or Event of Default and its consequences under this Indenture except   (i) a Default or Event of Default in the payment of the principal of, or premium, if any, or interest, on a Note or (ii) a   Default or Event of Default in respect of a provision that under Section 9.2 cannot be amended without the consent   of each Holder affected and (b) rescind any acceleration with respect to the Notes and its consequences if (1) such   rescission would not conflict with any judgment or decree of a court of competent jurisdiction, (2) all existing   Events of Default have been cured or waived except nonpayment of principal, premium, if any, interest that has be-   come due solely because of the acceleration, (3) to the extent the payment of such interest is lawful, interest on   overdue installments of interest, premium, if any, and overdue principal, which has become due otherwise than by     





 







   -87-                such declaration of acceleration, has been paid, (4) the Company has paid the Trustee its compensation and reim-   bursed the Trustee for its reasonable expenses, disbursements and advances and (5) in the event of the cure or waiv-   er of an Event of Default of the type described in clause (4) of Section 6.1(a), the Trustee shall have received an   Officer’s Certificate and an Opinion of Counsel stating that such Event of Default has been cured or waived.  No   such rescission shall affect any subsequent Default or impair any right consequent thereto.  When a Default or Event   of Default is waived, it is deemed cured, but no such waiver shall extend to any subsequent or other Default or Event   of Default or impair any consequent right.   SECTION 6.5. Control by Majority.  The Holders of a majority in principal amount of the outstanding   Notes may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee   or of exercising any trust or power conferred on the Trustee.  However, the Trustee may refuse to follow any direc-   tion that conflicts with law or this Indenture or the Notes or, subject to Sections 7.1 and 7.2, that the Trustee deter-   mines is unduly prejudicial to the rights of other Holders or would involve the Trustee in personal liability; provid-   ed, however, that the Trustee may take any other action deemed proper by the Trustee that is not inconsistent with   such direction.  Prior to taking any such action hereunder, the Trustee shall be entitled to indemnification satisfacto-   ry to it against all fees, losses and expenses (including attorney’s fees and expenses) caused by taking or not taking   such action.   SECTION 6.6. Limitation on Suits.  Subject to Section 6.7, a Holder may not pursue any remedy with   respect to this Indenture or the Notes unless:   (1) such Holder has previously given the Trustee written notice that an Event of Default is   continuing;   (2) Holders of at least 30% in principal amount of the outstanding Notes have requested in   writing the Trustee to pursue the remedy;   (3) such Holders have offered in writing the Trustee security or indemnity satisfactory to the   Trustee against any loss, liability or expense;   (4) the Trustee has not complied with such request within 60 days after the receipt of the   written request and the offer of security or indemnity; and   (5) Holders of a majority in principal amount of the outstanding Notes have not given the   Trustee a written direction that, in the opinion of the Trustee, is inconsistent with such request within such   60-day period.   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 such actions or forbearances are unduly prejudicial to such Holders).   SECTION 6.7. Rights of Holders to Receive Payment.  Notwithstanding any other provision of this   Indenture (including, without limitation, Section 6.6), the right of any Holder to receive payment of principal of,   premium, if any, or interest, on the Notes held by such Holder, on or after the respective due dates expressed or pro-   vided for in the Notes, or to bring suit for the enforcement of any such payment on or after such respective dates,   shall not be impaired or affected without the consent of such 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 may recover judgment in its own name and as trustee of an ex-   press trust against the Company for the whole amount then due and owing (together with interest on any unpaid in-   terest to the extent lawful) and the amounts provided for in Section 7.7.   SECTION 6.9. Trustee May File Proofs of Claim.  The Trustee may file such proofs of claim and oth-   er 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)     





 







   -88-                and the Holders allowed in any judicial proceedings relative to the Company, its Subsidiaries or its or their respec-   tive creditors or properties and, unless prohibited by law or applicable regulations, may be entitled and empowered   to participate as a member of any official committee of creditors appointed in such matter and may vote on behalf of   the Holders in any election of a trustee in bankruptcy or other Person performing similar functions, and any Custodi-   an in any such judicial proceeding is hereby authorized by each Holder to make 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 it for the compensation, expenses, disbursements and advances of the Trustee, its agents and its counsel,   and any other amounts due the Trustee under Section 7.7.   No provision of this Indenture 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 thereof or to authorize the Trustee to vote in respect of the claim of any Holder in   any such proceeding.   SECTION 6.10. Priorities.   (a) If the Trustee collects any money or property pursuant to this Article VI, it shall pay out the   money or property in the following order:   FIRST:  to the Trustee for amounts due to it under Section 7.7;   SECOND:  to Holders for amounts due and unpaid on the Notes for principal of, or premium, if   any, and interest, ratably, without preference or priority of any kind, according to the amounts due and pay-   able on the Notes for principal of, or premium, if any, and interest, respectively; and   THIRD:  to the Company, or to the extent the Trustee collects any amount for any Guarantor, to   such Guarantor.   (b) The Trustee may fix a record date and payment date for any payment to Holders pursuant to this   Section 6.10.  At least 15 days before such record date, the Company shall send or cause to be sent to each Holder   and the Trustee a notice that states the record date, the payment date and amount to be paid.   SECTION 6.11. Undertaking for Costs.  In any suit for the enforcement of any right or remedy under   this Indenture or in any suit against the Trustee for any action taken or omitted by it as Trustee, a court in its discre-   tion 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 liti-   gant.  This Section 6.11 does not apply to a suit by the Trustee, a suit by the Company, a suit by a Holder pursuant to   Section 6.7 or a suit by Holders of more than 10% in outstanding principal amount of the Notes.   ARTICLE VII      TRUSTEE   SECTION 7.1. Duties of Trustee.   (a) If an Event of Default has occurred and is continuing, the Trustee shall exercise 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 such person’s own affairs.   (b) Except during the continuance of an Event of Default:   (1) the Trustee undertakes to perform such duties and only such duties as are specifically set   forth in this Indenture and no implied covenants or obligations shall be read into this Indenture against the   Trustee; and     





 







   -89-                (2) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of   the statements and the correctness of the opinions expressed therein, upon certificates, opinions or orders   furnished to the Trustee and conforming to the requirements of this Indenture or the Notes, as the case may   be.  However, in the case of any such certificates or opinions which by any provisions hereof are specifical-   ly required to be furnished to the Trustee, the Trustee shall examine such certificates and opinions to de-   termine whether or not they conform to the requirements of this Indenture or the Notes, as the case may be   (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein).   (c) The Trustee may not be relieved from liability for its own negligent action, its own negligent   failure to act or its own willful misconduct, except that:   (1) this paragraph does not limit the effect of paragraph (b) of this Section 7.1;   (2) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Of-   ficer 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 or the Notes shall require the Trustee to expend or risk its   own funds or otherwise incur financial liability in the performance of any of its duties hereunder or there-   under or in the exercise of any of its rights or powers, if it shall have reasonable grounds to believe that re-   payment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.   (d) Every provision of this Indenture that in any way relates to the Trustee is subject to para-   graphs (a), (b) and (c) of this Section 7.1.   (e) The Trustee shall not be liable for interest on any money received by it except as the Trustee may   agree in writing with the Company.   (f) Money held in trust by the Trustee need not be segregated from other funds except to the extent   required by law.   (g) Every provision of this Indenture relating to the conduct or affecting the liability of or affording   protection to the Trustee shall be subject to the provisions of this Section 7.1.   SECTION 7.2. Rights of Trustee.  Subject to Section 7.1:   (a) The Trustee may conclusively rely on and shall be fully protected in acting or refraining from   acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent,   order or other paper or document (whether in its original or facsimile form) reasonably 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 stat-   ed in the document.  The Trustee shall receive and retain financial reports and statements of the Company as provid-   ed herein, but shall have no duty to review or analyze such reports or statements to determine compliance with cov-   enants or other obligations of the Company.   (b) Before the Trustee acts or refrains from acting, it may require an Officer’s Certificate and/or an   Opinion of Counsel.  The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance   on an Officer’s Certificate or Opinion of Counsel.   (c) The Trustee may execute any of the trusts and powers hereunder or perform any duties hereunder   either directly by or through its attorneys and agents and shall not be responsible for the misconduct or negligence of   any agent or attorney appointed with due care by it hereunder.     





 







   -90-                (d) The Trustee shall not be liable for any action it takes or omits to take in good faith which it be-   lieves to be authorized or within its rights or powers conferred upon it by this Indenture.   (e) The Trustee may consult with counsel of its selection, and the advice or opinion of counsel relat-   ing to this Indenture or the Notes shall be full and complete authorization and protection from liability in respect of   any action taken, omitted or suffered by it hereunder or under the Notes in good faith and in accordance with the   advice or opinion of such counsel.   (f) The Trustee shall not be deemed to have notice of any Default or Event of Default or whether   any entity or group of entities constitutes a Significant Subsidiary unless a Trust Officer of the Trustee has actual   knowledge thereof or unless written notice of any event which is in fact such a Default or of any such Significant   Subsidiary is received by the Trustee at the corporate trust office of the Trustee specified in Section 3.12, and such   notice references the Notes and this Indenture.   (g) The rights, privileges, protections, immunities and benefits given to the Trustee, including, with-   out limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its ca-   pacities hereunder, and to each agent, custodian and other Person employed to act hereunder.   (h) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by   this Indenture or the Notes at the request, order or direction of any of the Holders pursuant to the provisions of this   Indenture, unless such Holders shall have offered to the Trustee security or indemnity satisfactory to it against the   costs, expenses and liabilities which may be incurred therein or thereby.   (i) The Trustee shall not be deemed to have knowledge of any fact or matter unless such fact or mat-   ter is known to a Trust Officer of the Trustee.   (j) Whenever in the administration of this Indenture or the Notes the Trustee shall deem it desirable   that a matter be proved or established prior to taking, suffering or omitting any action hereunder or thereunder, the   Trustee (unless other evidence be herein specifically prescribed) may, in the absence of negligence or willful mis-   conduct on its part, conclusively rely upon an Officer’s Certificate.   (k) The Trustee shall not be bound to make any investigation into the facts or matters stated in any   resolution, certificate, statement, instrument, report, notice, request, direction, consent, order, bond, debenture, cou-   pon or other paper or document, 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 inves-   tigation, it shall be entitled to examine, during business hours and upon reasonable notice, the books, records and   premises of the Company and the Restricted Subsidiaries, 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.   (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) The Trustee may request that the Company deliver an Officer’s Certificate setting forth the   names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Inden-   ture or the Notes.   (n) In no event shall the Trustee be liable to any Person for special, punitive, indirect, consequential   or incidental loss or damage of any kind whatsoever (including, but not limited to, lost profits), even if the Trustee   has been advised of the likelihood of such loss or damage.   (o) Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice   from the Company shall be sufficient if signed by one Officer of the Company.   SECTION 7.3. Individual Rights of 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, Guarantors or their Affiliates     





 







   -91-                with the same rights it would have if it were not Trustee.  Any Paying Agent, Registrar, co-registrar or co-paying   agent may do the same with like rights.  However, the Trustee must comply with Sections 7.10 and 7.11.  In addi-   tion, the Trustee shall be permitted to engage in transactions with the Company; provided, however, that if the Trus-   tee acquires any conflicting interest, the Trustee must (i) eliminate such conflict within 90 days of acquiring such   conflicting interest, (ii) apply to the SEC for permission to continue acting as Trustee or (iii) resign.   SECTION 7.4. Trustee’s Disclaimer.  The Trustee shall not be responsible for and makes no represen-   tation as to the validity or adequacy of this Indenture or the Notes, shall not be accountable for the Company’s use   of the proceeds from the sale of the Notes, shall not be responsible for the use or application of any money received   by any Paying Agent other than the Trustee or any money paid to the Company pursuant to the terms of this Inden-   ture and shall not be responsible for any statement of the Company in this Indenture or in any document issued in   connection with the sale of the Notes or in the Notes other than the Trustee’s certificate of authentication.   SECTION 7.5. Notice of Defaults.  If a Default or Event of Default occurs and is continuing and if a   Trust Officer has actual knowledge thereof, the Trustee shall send electronically or by first class mail to each Holder   at the address set forth in the Notes Register notice of the Default or Event of Default within 60 days after it is actu-   ally known to a Trust Officer.  Except in the case of a Default or Event of Default in payment of principal of, or   premium, if any, or interest on any Note (including payments pursuant to the optional redemption or required repur-   chase provisions of such Note), the Trustee may withhold the notice if and so long it in good faith determines that   withholding the notice is in the interests of Holders.   SECTION 7.6. [Reserved].   SECTION 7.7. Compensation and Indemnity.  The Company shall pay to the Trustee from time to   time compensation for its services hereunder and under the Notes as the Company and the Trustee shall from time to   time agree 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 upon request for all reasonable out-of-pocket expenses   incurred or made by it, including, but not limited to, costs of collection, costs of preparing reports, certificates and   other documents, costs of preparation and mailing of notices to Holders.  Such expenses shall include the reasonable   compensation and expenses, disbursements and advances of the agents, counsel, accountants and experts of the   Trustee.  The Company shall indemnify the Trustee against any and all loss, liability, damages, claims or expense,   including taxes (other than taxes based upon the income of the Trustee) (including reasonable attorneys’ and agents’   fees and expenses) incurred by it without willful misconduct or gross negligence, as determined by a final nonap-   pealable order of a court of competent jurisdiction, on its part in connection with the administration of this trust and   the performance of its duties hereunder and under the Notes, including the costs and expenses of enforcing this In-   denture (including this Section 7.7) and the Notes and of defending itself against any claims (whether asserted by   any Holder, the Company or otherwise).  The Trustee shall notify the Company promptly of any claim for which it   may seek indemnity of which it has received written notice.  Failure by the Trustee to so notify the Company shall   not relieve the Company of its obligations hereunder.  The Company shall defend the claim and the Trustee shall   provide reasonable cooperation at the Company’s expense in the defense.  The Trustee may have separate counsel   and the Company shall pay the fees and expenses of such counsel; provided that the Company shall not be required   to pay the fees and expenses of such separate counsel if it assumes the Trustee’s defense, and, in the reasonable   judgment of outside counsel to the Trustee, there is no conflict of interest between the Company and the Trustee in   connection with such defense.   To secure the Company’s payment obligations in this Section 7.7, the Trustee shall have a lien prior to the   Notes on all money or property held or collected by the Trustee other than money or property held in trust to pay   principal of and interest on particular Notes.  Such lien shall survive the satisfaction and discharge of this Indenture.    The Trustee’s respective right to receive payment of any amounts due under this Section 7.7 shall not be subordinate   to any other liability or Indebtedness of the Company.   The Company’s payment obligations pursuant to this Section 7.7 shall survive the discharge of this Inden-   ture and any resignation or removal of the Trustee under Section 7.8.  Without prejudice to any other rights available   to the Trustee under applicable law, when the Trustee incurs fees, expenses or renders services after the occurrence   of a Default specified in clause (7) or clause (8) of Section 6.1(a), the expenses (including the reasonable fees and   expenses of its counsel) are intended to constitute expenses of administration under any Bankruptcy Law.     





 







   -92-                SECTION 7.8. Replacement of Trustee.  The Trustee may resign at any time by so notifying the   Company in writing not less than 30 days prior to the effective date of such resignation.  The Holders of a majority   in principal amount of the Notes may remove the Trustee by so notifying the removed Trustee in writing not less   than 30 days prior to the effective date of such removal and may appoint a successor Trustee with the Company’s   written consent, which consent will not be unreasonably withheld.  The Company shall remove the Trustee if:   (1) the Trustee fails to comply with Section 7.10 hereof;   (2) the Trustee is adjudged bankrupt or insolvent;   (3) a receiver or other public officer takes charge of the Trustee or its property; or   (4) the Trustee otherwise becomes incapable of acting.   If the Trustee resigns or is removed by the Company or by the Holders of a majority in principal amount of   the Notes and such Holders do not reasonably promptly appoint a successor Trustee as described in the preceding   paragraph, or if a vacancy exists in the office of the Trustee for any reason (the Trustee in such event being referred   to herein as the retiring Trustee), the Company shall promptly appoint 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 duties of the Trustee under this Indenture.  The successor Trustee shall   mail a notice of its succession to Holders.  The retiring Trustee shall, at the expense of the Company, promptly   transfer all property held by it as Trustee to the successor Trustee, subject to the lien provided for in Section 7.7.   If a successor Trustee does not take office within 60 days after the retiring Trustee resigns or is removed,   the retiring Trustee or the Holders of at least 10% in principal amount of the Notes may petition, at the Company’s   expense, any court of competent jurisdiction for the appointment of a successor Trustee.   If the Trustee fails to comply with Section 7.10, unless the Trustee’s duty to resign is stayed as provided in   TIA Section 310(b), any Holder, who has been a bona fide holder of a Note for at least six months, may petition any   court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.   Notwithstanding the replacement of the Trustee pursuant to this Section 7.8, the Company’s obligations   under Section 7.7 shall continue for the benefit of the retiring Trustee.  The predecessor Trustee shall have no liabil-   ity for any action or inaction of any successor Trustee.   SECTION 7.9. Successor Trustee by Merger.  If the Trustee consolidates with, merges or converts in-   to, or transfers all or substantially all its corporate trust business or assets to, another corporation or banking associa-   tion, the resulting, surviving or transferee corporation without any further act shall be the successor Trustee.   In case at the time such successor or successors by merger, conversion or consolidation to the Trustee shall   succeed to the trusts created by this Indenture, any of the Notes shall have been authenticated but not delivered, any   such successor to the Trustee may adopt the certificate of authentication of any predecessor trustee, and deliver such   Notes so authenticated; and in case at that time any of the Notes shall not have been authenticated, any successor to   the Trustee may authenticate such Notes either in the name of any predecessor hereunder or in the name of the suc-   cessor to the Trustee; provided that the right to adopt the certificate of authentication of any predecessor Trustee or   authenticate Notes in the name of any predecessor Trustee shall only apply to its successor or successors by merger,   consolidation or conversion.   SECTION 7.10. Eligibility; Disqualification.  This Indenture shall always have a Trustee.  The Trustee   shall have a combined capital and surplus of at least $100 million as set forth in its most recent published annual   report of condition.   SECTION 7.11. [Reserved].     





 







   -93-                SECTION 7.12. Trustee’s Application for Instruction from the Company.  Any application by the Trus-   tee for written instructions from the Company may, at the option of the Trustee, set forth in writing any action pro-   posed to be taken or omitted by the Trustee under this Indenture and the date on and/or after which such action shall   be taken or such omission shall be effective.  The Trustee shall not be liable for any action taken by, or omission of,   the Trustee in accordance with a proposal included in such application on or after the date specified in such applica-   tion (which date shall not be less than three Business Days after the date any Officer of the Company actually re-   ceives such application, unless any such Officer shall have consented in writing to any earlier date) unless prior to   taking any such action (or the effective date in the case of an omission), the Trustee shall have received written in-   structions in response to such application specifying the action to be taken or omitted.   ARTICLE VIII      LEGAL DEFEASANCE AND COVENANT DEFEASANCE   SECTION 8.1. Option to Effect Legal Defeasance or Covenant Defeasance; Defeasance.  The Com-   pany may, at its option and at any time, elect to have either Section 8.2 or 8.3 hereof be applied to all outstanding   Notes upon compliance with the conditions set forth below in this Article VIII.   SECTION 8.2. Legal Defeasance and Discharge.  Upon the Company’s exercise under Section 8.1   hereof of the option applicable to this Section 8.2, the Company and each of the Guarantors will, subject to the satis-   faction of the conditions set forth in Section 8.4 hereof, be deemed to have been discharged from their obligations   with respect to all outstanding Notes (including the Guarantees) on the date the conditions set forth below are satis-   fied (hereinafter, “Legal Defeasance”).  For this purpose, Legal Defeasance means that the Company and the Guar-   antors will be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes   (including the Guarantees), which will thereafter be deemed to be “outstanding” only for the purposes of Section 8.5   hereof and the other Sections of this Indenture referred to in clauses (1) and (2) below, and to have satisfied all of   their other obligations under such Notes, the Guarantees and this Indenture (and the Trustee, on written demand of   and at the expense of the Company, shall execute such instruments reasonably requested by the Company acknowl-   edging the same) and to have cured all then existing Events of Default, except for the following provisions which   will survive until otherwise terminated or discharged hereunder:   (1) the rights of Holders of Notes issued under this Indenture to receive payments in respect   of the principal of, premium, if any, and interest, on the Notes when such payments are due solely out of   the trust referred to in Section 8.4 hereof;   (2) the Company’s obligations with respect to the Notes under Article II concerning issuing   temporary Notes, registration of such Notes, mutilated, destroyed, lost or stolen Notes and Section 3.12   hereof concerning the maintenance of an office or agency for payment and money for security payments   held in trust;   (3) the rights, powers, trusts, duties and immunities of the Trustee and the Company’ or   Guarantors’ obligations in connection therewith; and   (4) this Article VIII with respect to provisions relating to Legal Defeasance.   SECTION 8.3. Covenant Defeasance.  Upon the Company’ exercise under Section 8.1 hereof of the   option applicable to this Section 8.3, the Company and each of the Guarantors will, subject to the satisfaction of the   conditions set forth in Section 8.4 hereof, be released from each of their obligations under the covenants contained   in Section 3.2, 3.3, 3.4, 3.5, 3.6, 3.7, 3.8, 3.9, 3.10, 3.11, 3.16, 3.19, 3.21 and Section 4.1 (except Section 4.1(a)(1)   and (a)(2)) hereof with respect to the outstanding Notes on and after the date the conditions set forth in Section 8.4   hereof are satisfied (hereinafter, “Covenant Defeasance”), and the Notes will 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 will continue to be deemed “outstanding” for all other purposes   hereunder.  For this purpose, Covenant Defeasance means that, with respect to the outstanding Notes and Guaran-   tees, the Company and the Guarantors 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     





 







   -94-                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(a) hereof, but, except as specified above, the remainder of this Indenture and such Notes and   Guarantees will be unaffected thereby.  In addition, upon the Company’s exercise under Section 8.1 hereof of the   option applicable to this Section 8.3, subject to the satisfaction of the conditions set forth in Section 8.4 hereof, Sec-   tions 6.1(a)(3) (other than with respect to Section 4.1(a)(1) and (a)(2)), 6.1(a)(4), 6.1(a)(5), 6.1(a)(6), 6.1(a)(7) (with   respect only to a Guarantor that is a Significant Subsidiary or any group of Guarantors that taken together would   constitute a Significant Subsidiary), and 6.1(a)(8) (with respect only to a Guarantor that is a Significant Subsidiaries   or any group of Guarantors that taken together would constitute a Significant Subsidiary) hereof shall not constitute   Events of Default.   SECTION 8.4. Conditions to Legal or Covenant Defeasance.  In order to exercise either Legal Defea-   sance or Covenant Defeasance under either Section 8.2 or 8.3 hereof:   (1) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the   Holders, cash in U.S. dollars, U.S. Government Obligations, or a combination thereof, in such amounts as   will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay   the principal of and premium, if any, interest, due on the Notes issued under this Indenture on the stated   maturity date or on the applicable redemption date, as the case may be, and the Company must specify   whether such Notes are being defeased to maturity or to a particular redemption date;   (2) in the case of Legal Defeasance, the Company shall have delivered to the Trustee an   Opinion of 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 issuance of such Notes, 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 in the United States shall con-   firm that, subject to customary assumptions and exclusions, the Holders, in their capacity as Holders of the   Notes; will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Le-   gal 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 in the United States confirming that, subject to customary assumptions and exclusions,   the Holders, in their capacity as Holders of the Notes, will not recognize income, gain or loss for   U.S. federal income tax purposes as a result of such 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 (other than that resulting from borrowing funds to be ap-   plied to make such deposit and the granting of Liens in connection therewith) shall have occurred and be   continuing on the date of such deposit;   (5) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation   of, or constitute a default under the Credit Facilities or any other material agreement or instrument (other   than this Indenture) to which, the Company or any Guarantor is a party or by which the Company or any   Guarantor is bound;   (6) the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that,   as of the date of such opinion and subject to customary assumptions and exclusions following the deposit,   the trust funds will not be subject to the effect of Sections 547 and 548 of Title 11 of the United States     





 







   -95-                Code, as amended, or any applicable bankruptcy, insolvency, reorganization or similar laws affecting credi-   tors’ rights generally under any applicable U.S. federal or state law;   (7) 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 defeating, hindering, delaying, defrauding or pre-   ferring any creditors of the Company or any Guarantor or others; and   (8) the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion   of Counsel in the United States (which Opinion of Counsel may be subject to customary assumptions and   exclusions) each stating that all conditions precedent provided for or relating to the Legal Defeasance or the   Covenant Defeasance, as the case may be, have been complied with.   SECTION 8.5. Deposited Money and U.S. Government Obligations to be Held in Trust; Other Mis-   cellaneous Provisions.  Subject to Section 8.6 hereof, all money and U.S. Government Obligations (including the   proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Sec-   tion 8.5, the “Trustee”) pursuant to Section 8.4 hereof in respect of the outstanding Notes will be held in trust and   applied by the 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 acting as Paying Agent) as the Trustee may deter-   mine, to the Holders of such Notes of all sums due and to become due thereon in respect of principal, premium, and   interest, but such money need not be segregated from other funds except to the extent required by law.   The Company will pay and indemnify the Trustee against any tax, fee or other charge imposed on or as-   sessed against the cash or U.S. Government Obligations deposited pursuant to Section 8.4 hereof 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.   Notwithstanding anything in this Article VIII to the contrary, the Trustee will deliver or pay to the Compa-   ny from time to time upon the request of the Company any money or U.S. Government Obligations held by it as   provided in Section 8.4 hereof which, in the opinion of a nationally recognized firm of independent public account-   ants expressed in a written certification thereof delivered to the Trustee (which may be the opinion delivered under   Section 8.4(1) hereof), are in excess of the amount thereof that would then be required to be deposited to effect an   equivalent Legal Defeasance or Covenant Defeasance.   SECTION 8.6. Repayment to the Company.  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 or interest on, any Note   and remaining unclaimed for two years after such principal, premium or interest has become due and payable shall   be paid to the Company on their written request unless an abandoned property law designates another Person or (if   then held by the Company) will be discharged from such trust; and the Holder of such Note will thereafter be per-   mitted to look only to the Company for payment thereof unless an abandoned property law designates another Per-   son, 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, will thereupon cease; provided, however, that the Trustee or such Paying Agent, before   being required to make any such repayment, shall at the expense 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 will not be less than 30 days from the date of such notification or publica-   tion, any unclaimed balance of such money then remaining will be repaid to the Company.   SECTION 8.7. Reinstatement.  If the Trustee or Paying Agent is unable to apply any money or U.S.   dollars or U.S. Government Obligations in accordance with Section 8.2 or 8.3 hereof, 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 Company’s and the Guarantors’ obligations under this Indenture and the Notes and the   Guarantees will be revived and reinstated as though no deposit had occurred pursuant to Section 8.2 or 8.3 hereof   until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 8.2   or 8.3 hereof, as the case may be; provided, however, that, if the Company make any payment of principal of, pre-   mium, or interest on, any Note following the reinstatement of its obligations, the Company will be subrogated to the   rights of the Holders of such Notes to receive such payment from the money or U.S. Government Obligations held   by the Trustee or Paying Agent.     





 







   -96-                ARTICLE IX      AMENDMENTS   SECTION 9.1. Without Consent of Holders.  Notwithstanding Section 9.2 of this Indenture, the Com-   pany, any Guarantor (with respect to its Guarantee or this Indenture) and the Trustee may amend, supplement or   modify this Indenture, any Guarantee and the Notes without the consent of any Holder:   (1) to cure any ambiguity, omission, mistake, defect, error or inconsistency, conform any   provision to any provision under the heading “Description of the Notes” in the Offering Memorandum or   reduce the minimum denomination of the Notes;   (2) to provide for the assumption by a successor Person of the obligations of the Company   under any Note Document;   (3) to provide for uncertificated Notes in addition to or in place of certificated Notes;   (4) to add to the covenants or provide for a Note Guarantee for the benefit of the Holders or   to surrender any right or power conferred upon the Company or any Restricted Subsidiary;   (5) to make any change that does not adversely affect the rights of any Holder in any material   respect;   (6) at the Company’s election, comply with any requirement of the SEC in connection with   the qualification of the Indenture under the TIA, if such qualification is required;   (7) make such provisions as necessary (as determined in good faith by the Company) for the   issuance of Additional Notes;   (8) provide for any Restricted Subsidiary to provide a Note Guarantee in accordance with   Section 3.2, to add Guarantees with respect to the Notes, to add security to or for the benefit of the Notes,   or to confirm and evidence the release, termination, discharge or retaking of any Guarantee or Lien with re-   spect to or securing the Notes when such release, termination, discharge or retaking is provided for under   this Indenture;   (9) evidence and provide for the acceptance and appointment under this Indenture of a suc-   cessor Trustee pursuant to the requirements hereof or to provide for the accession by the Trustee to any   Note Document; or   (10) make any amendment to the provisions of this Indenture relating to the transfer and   legending of Notes as permitted by this Indenture, including to facilitate the issuance and administration of   Notes; provided, however, that (i) compliance with this Indenture as so amended would not result in Notes   being transferred in violation of the Securities Act or any other applicable securities law and (ii) such   amendment does not adversely affect the rights of Holders to transfer Notes in any material respect.   Subject to Section 9.2, upon the request of the Company accompanied by a Board Resolution authorizing   the execution of any such amended or supplemental indenture, and upon receipt by the Trustee of the documents   described in Sections 9.6 and 12.4 hereof, the Trustee will join with the Company and the Guarantors in the execu-   tion of such amended or supplemental indenture unless such amended or supplemental indenture affects the Trus-   tee’s own rights, duties, liabilities or immunities under this Indenture or otherwise, in which case the Trustee may in   its discretion, but will not be obligated to, enter into such amended or supplemental Indenture.   After an amendment or supplement under this Section 9.1 becomes effective, the Company shall mail to   Holders a notice briefly describing such amendment or supplement.  The failure to give such notice to all Holders, or   any defect therein, shall not impair or affect the validity of an amendment or supplement under this Section 9.1.     





 







   -97-                SECTION 9.2. With Consent of Holders.  Except as provided below in this Section 9.2, the Company,   the Guarantors and the Trustee may amend or supplement this Indenture, any Guarantee and the Notes issued here-   under with the consent of the Holders of at least a majority in aggregate principal amount of the Notes then out-   standing and issued under this Indenture, including, without limitation, consents obtained in connection with a pur-   chase of, or tender offer or exchange offer for, Notes, and, subject to Sections 6.4 and 6.7 hereof, any existing De-   fault or Event of Default (other than a Default or Event of Default in the payment of the principal of, premium, if   any, or interest on the Notes, except a payment default resulting from an acceleration that has been rescinded) or   compliance with any provision of this Indenture, the Notes and the Guarantees may be waived with the consent of   the Holders of a majority in aggregate principal amount of the then outstanding Notes issued under this Indenture   (including consents obtained in connection with a purchase of or tender offer or exchange offer for Notes).  Sec-   tion 2.12 hereof and Section 12.4 hereof shall determine which Notes are considered to be “outstanding” for the   purposes of this Section 9.2.   Upon the request of the Company accompanied by a resolution of its Board of Directors authorizing the ex-   ecution of any such amended or supplemental indenture, and upon the filing with the Trustee of evidence of the con-   sent of the Holders of Notes as aforesaid, and upon receipt by the Trustee of the documents described in Sections 9.6   and 12.4 hereof, the Trustee will join with the Company and the Guarantors in the execution of such amended or   supplemental indenture unless such amended or supplemental indenture affects the Trustee’s own rights, duties, lia-   bilities or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but will not   be obligated to, enter into such amended or supplemental Indenture.   Without the consent of each Holder of Notes affected, an amendment, supplement or waiver may not, with   respect to any Notes issued thereunder and held by a nonconsenting Holder:   (1) reduce the principal amount of such Notes whose Holders must consent to an amend-   ment;   (2) reduce the stated rate of or extend the stated time for payment of interest on any such   Note (other than provisions relating to Section 3.5 and Section 3.9);   (3) reduce the principal of or extend the Stated Maturity of any such Note (other than provi-   sions relating to Section 3.5 and Section 3.9);   (4) reduce the premium payable upon the redemption of any such Note or change the time at   which any such Note may be redeemed, in each case as set forth in Section 5.7;   (5) make any such Note payable in currency other than that stated in such Note;   (6) impair the right of any Holder to receive payment of principal of and interest on such   Holder’s Notes on or after the due dates therefor or to institute suit for the enforcement of any such pay-   ment on or with respect to such Holder’s Notes;   (7) waive a Default or Event of Default with respect to the nonpayment of principal, premi-   um or interest (except pursuant to a rescission of acceleration of the Notes by the Holders of at least a ma-   jority in aggregate principal amount of such Notes and a waiver of the payment default that resulted from   such acceleration);   (8) release any Guarantor from any of its obligations under its Note Guarantee or this Inden-   ture, except in accordance with the terms of this Indenture; or   (9) make any change in the amendment or waiver provisions which require the Holders’ con-   sent described in this Section 9.2.   It shall not be necessary for the consent of the Holders under this Indenture to approve the particular form   of any proposed amendment, supplement or waiver, but it shall be sufficient if such consent approves the substance     





 







   -98-                thereof.  A consent to any amendment, supplement or waiver under this Indenture by any Holder of the Notes given   in connection with a tender or exchange of such Holder’s Notes will not be rendered invalid by such tender or ex-   change.   After an amendment or supplement under this Section 9.2 becomes effective, the Company shall mail to   Holders a notice briefly describing such amendment or supplement.  The failure to give such notice to all Holders, or   any defect therein, shall not impair or affect the validity of an amendment or supplement.   SECTION 9.3. Compliance with this Indenture.  Every amendment or supplement to this Indenture,   any Guarantee and the Notes will be set forth in an amended or supplemental indenture that complies with this In-   denture as then in effect.   SECTION 9.4. Revocation and Effect of Consents and Waivers.  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 of a Note and   every subsequent Holder of a Note or portion of a Note that evidences the same debt as the consenting Holder’s   Note, even if notation of the consent or waiver is not made on any Note.  However, any such Holder of a Note or   subsequent Holder of a Note may revoke the consent or waiver as to such Holder’s Note or portion of its Note if the   Trustee receives written notice of revocation before the date the amendment, supplement or waiver becomes effec-   tive.  An amendment, supplement or waiver becomes effective in accordance with its terms and thereafter binds eve-   ry Holder.   The Company may, but shall not be obligated to, fix a record date for the purpose of determining the Hold-   ers entitled to give their consent or take any other action described above or required or permitted to be taken pursu-   ant to this Indenture.  If a record date is fixed, then notwithstanding the immediately preceding paragraph, those   Persons who were Holders at such record date (or their duly designated proxies), and only those Persons, shall be   entitled to give such consent or to revoke any consent previously given or to take any such action, whether or not   such Persons continue to be Holders after such record date.  No such consent shall be valid or effective for more   than 120 days after such record date.   SECTION 9.5. 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, upon receipt of an Issuer Order, authenticate new Notes that reflect the   amendment, supplement or waiver.   Failure to make the appropriate notation or issue a new Note will not affect the validity and effect of such   amendment, supplement or waiver.   SECTION 9.6. Trustee to Sign Amendments.  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.  The Company may not sign an amended or supplemental indenture   until the Board of Directors of the Company approves it.  In executing any amended or supplemental indenture, the   Trustee will be entitled to receive and (subject to Sections 7.1 and 7.2 hereof) shall be fully protected in conclusively   relying upon, in addition to the documents required by Section 12.2 hereof, an Officer’s Certificate and an Opinion   of Counsel stating that the execution of such amended or supplemental indenture is authorized or permitted by this   Indenture and is valid, binding and enforceable against the Company in accordance with its terms.   ARTICLE X      GUARANTEE   SECTION 10.1. Guarantee.  Subject to the provisions of this Article X, each Guarantor hereby fully,   unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, jointly and severally with   each other Guarantor, to each Holder of the Notes, and the Trustee the full and punctual payment when due, whether   at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, and interest on the   Notes and all other obligations and liabilities of the Company under this Indenture (including without limitation in-    





 







   -99-                terest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization   or like proceeding, relating to the Company or any Guarantor whether or not a claim for post-filing or post-petition   interest is allowed in such proceeding and the obligations under Section 7.7), (all the foregoing being hereinafter   collectively called the “Guaranteed Obligations”).  Each Guarantor agrees that the Guaranteed Obligations will rank   equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness   is subordinate to the Guaranteed Obligations, in which case the obligations of the Guarantors under the Guarantees   will rank senior in right of payment to such other Indebtedness.   To evidence its Guarantee set forth in this Section 10.1, each Guarantor hereby agrees that this Indenture   shall be executed on behalf of such Guarantor by an Officer of such Guarantor.   Each Guarantor hereby agrees that its Guarantee set forth in this Section 10.1 shall remain in full force and   effect notwithstanding the absence of the endorsement of any notation of such Guarantee on the Notes.   If an Officer whose signature is on this Indenture no longer holds that office at the time the Trustee authen-   ticates the Note, the Guarantee shall be valid nevertheless.   Each Guarantor further agrees (to the extent permitted by law) that the Guaranteed Obligations may be ex-   tended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under   this Article X notwithstanding any extension or renewal of any Guaranteed Obligation.   Each Guarantor waives presentation to, demand of payment from and protest to the issuer of any of the   Guaranteed Obligations and also waives notice of protest for nonpayment.  Each Guarantor waives notice of any   default under the Notes or the Guaranteed Obligations.   Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee of payment when due (and   not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security   held for payment of the Guaranteed Obligations.   Except as set forth in Section 10.2, the obligations of each Guarantor hereunder shall not be subject to any   reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations   in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any   defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or   unenforceability of the Guaranteed Obligations or otherwise.  Without limiting the generality of the foregoing, the   Guaranteed Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by   (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or   any other person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal   of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this In-   denture, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guaranteed   Obligations; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any   change in the ownership of the Company; (g) any default, failure or delay, willful or otherwise, in the performance   of the Guaranteed Obligations, or (h) any other act or thing or omission or delay to do any other act or thing which   may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a dis-   charge of such Guarantor as a matter of law or equity.   Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of   all the Guaranteed Obligations or such Guarantor is released from its Guarantee in compliance with Section 10.2,   Article VIII or Article XI.  Each Guarantor further agrees that its Guarantee herein shall continue to be effective or   be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of, premium, if any, inter-   est on any of the Guaranteed Obligations is rescinded or must otherwise be restored by any Holder upon the bank-   ruptcy or reorganization of the Company or otherwise.   In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in   equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guaranteed Obli-   gations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise,     





 







   -100-                each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause   to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the un-   paid amount of such Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest on such Guar-   anteed Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing   after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like pro-   ceeding relating to the Company or any Guarantor whether or not a claim for post-filing or post-petition interest is   allowed in such proceeding).   Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the   other hand, (x) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in this   Indenture for the purposes of its Guarantee herein, notwithstanding any stay, injunction or other prohibition prevent-   ing such acceleration in respect of the Guaranteed Obligations guaranteed hereby and (y) in the event of any such   declaration of acceleration of such Guaranteed Obligations, such Guaranteed Obligations (whether or not due and   payable) shall forthwith become due and payable by the Guarantor for the purposes of this Guarantee.   Each Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and ex-   penses) incurred by the Trustee or the Holders in enforcing any rights under this Section.   SECTION 10.2. Limitation on Liability; Termination, Release and Discharge.   (a) Any term or provision of this Indenture to the contrary notwithstanding, the obligations of each   Guarantor hereunder will be limited to the maximum amount as will, after giving effect to all other contingent and   fixed liabilities of such Guarantor and after giving effect to any collections from or payments made by or on behalf   of any other Guarantor in respect of the obligations of such other Guarantor under its Guarantee or pursuant to its   contribution obligations under this Indenture, result in the obligations of such Guarantor under its Guarantee not   constituting a fraudulent conveyance or fraudulent transfer under federal, foreign or state law and not otherwise be-   ing void or voidable under any similar laws affecting the rights of creditors generally.   (b) Any Note Guarantee of a Guarantor shall be automatically and unconditionally released and dis-   charged upon:   (1) a sale or other disposition (including by way of consolidation, merger or amalgamation)   of the Capital Stock of such Guarantor or the sale or disposition of all or substantially all the assets of the   Guarantor to a Person other than to the Company or a Restricted Subsidiary and as otherwise permitted by   this Indenture;   (2) the designation in accordance with this Indenture of the Guarantor as an Unrestricted   Subsidiary or the occurrence of any event after which the Guarantor is no longer a Restricted Subsidiary;   (3) defeasance or discharge of the Notes pursuant to Article VIII or Article XI;   (4) to the extent that such Guarantor is not an Immaterial Subsidiary solely due to the opera-   tion of clause (i) of the definition of “Immaterial Subsidiary,” upon the release of the guarantee referred to   in such clause;   (5) such Guarantor being released from all of (i) its obligations under all of its Guarantees of   payment by the Company of any Indebtedness of the Company under the Credit Agreement or (ii) in the   case of a Note Guarantee made by a Guarantor (each, an “Other Guarantee”) as a result of its guarantee of   other Indebtedness of the Company or a Guarantor pursuant to the Section 3.7 hereof, the relevant Indebt-   edness, except in the case of (i) or (ii), a release as a result of the repayment in full of the Indebtedness   specified in clause (i) or (ii) (it being understood that a release subject to a contingent reinstatement is still   considered a release, and if any such Indebtedness of such Guarantor under the Credit Agreement or any   Other Guarantee is so reinstated, such Note Guarantee shall also be reinstated); or     





 







   -101-                (6) upon the achievement of Investment Grade Status by the Notes; provided that such Note   Guarantee shall be reinstated upon the Reversion Date.   SECTION 10.3. Right of Contribution.  Each Guarantor hereby agrees that to the extent that any Guar-   antor shall have paid more than its proportionate share of any payment made on the obligations under the Guaran-   tees, such Guarantor shall be entitled to seek and receive contribution from and against the Company or any other   Guarantor who has not paid its proportionate share of such payment.  The provisions of this Section 10.3 shall in no   respect limit the obligations and liabilities of each Guarantor to the Trustee and the Holders and each Guarantor   shall remain liable to the Trustee and the Holders for the full amount guaranteed by such Guarantor hereunder.   SECTION 10.4. No Subrogation.  Notwithstanding any payment or payments made by each Guarantor   hereunder, no Guarantor shall be entitled to be subrogated to any of the rights of the Trustee or any Holder against   the Company or any other Guarantor or any collateral security or guarantee or right of offset held by the Trustee or   any Holder for the payment of the Guaranteed Obligations, nor shall any Guarantor seek or be entitled to seek any   contribution or reimbursement from the Company or any other Guarantor in respect of payments made by such   Guarantor hereunder, until all amounts owing to the Trustee and the Holders by the Company on account of the   Guaranteed Obligations are paid in full.  If any amount shall be paid to any Guarantor on account of such subroga-   tion rights at any time when all of the Guaranteed Obligations shall not have been paid in full, such amount shall be   held by such Guarantor in trust for the Trustee and the Holders, segregated from other funds of such Guarantor, and   shall, forthwith upon receipt by such Guarantor, be turned over to the Trustee in the exact form received by such   Guarantor (duly indorsed by such Guarantor to the Trustee, if required), to be applied against the Guaranteed Obli-   gations.   ARTICLE XI      SATISFACTION AND DISCHARGE   SECTION 11.1. Satisfaction and Discharge.  This Indenture will be discharged and will cease to be of   further effect as to all Notes issued hereunder, when:   (a) either:   (1) all Notes that have been authenticated and delivered, except lost, stolen or destroyed   Notes that have been replaced or paid and Notes for whose payment money has theretofore been deposited   in trust, have been delivered to the Trustee for cancellation; or   (2) all such Notes not theretofore delivered to the Trustee for cancellation (i) have become   due and payable by reason of the making of a notice of redemption or otherwise or (ii) will become due and   payable within one year at their Stated Maturity or (iii) are to be called for redemption within one year un-   der arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee, in the   name, and at the expense of the Company;   (b) the Company 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, U.S. Government Obligations, or a combination   thereof, in such amounts as will be sufficient, without consideration of any reinvestment of interest, to pay and dis-   charge the entire Indebtedness on such Notes not previously delivered to the Trustee for cancellation, for principal,   premium, if any, and interest to the date of deposit (in the case of Notes that have become due and payable), or to   the Stated Maturity or redemption date, as the case may be;   (c) no Default or Event of Default (other than that resulting from borrowing funds to be applied to   make such deposit and the granting of Liens in connection therewith) with respect to this Indenture or the Notes   issued hereunder shall have occurred and be continuing on the date of such deposit or shall occur as a result of such   deposit and such deposit will not result in a breach or violation of, or constitute a default under the Credit Facilities   or any other material agreement or instrument (other than this Indenture) to which the Company or any Guarantor is   a party or by which the Company or any Guarantor is bound;     





 







   -102-                (d) the Company or any Guarantor has paid or caused to be paid all sums payable by the Company   under this Indenture; and   (e) the Company has delivered irrevocable instructions to the Trustee to apply the deposited money   toward the payment of such Notes issued hereunder at maturity or the redemption date, as the case may be.   In addition, the Company shall deliver an Officer’s Certificate and an Opinion of Counsel to the Trustee   stating that all conditions precedent to satisfaction and discharge have been satisfied.   Notwithstanding the satisfaction and discharge of this Indenture, if money has been deposited with the   Trustee pursuant to clause (a)(2) of this Section 11.1, the provisions of Sections 11.2 and 8.6 hereof will survive.   SECTION 11.2. Application of Trust Money.  Subject to the provisions of Section 8.6 hereof, all mon-   ey or U.S. Government Obligations deposited with the Trustee pursuant to Section 11.1 hereof shall be held in trust   and applied by it, in accordance with the provisions of the Notes and this Indenture, to the payment, either directly   or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may deter-   mine, to the Persons entitled thereto, of the principal (and premium) and interest for whose payment such money or   U.S. Government Obligations has been deposited with the Trustee; but such money or U.S. Government Obligations   need not be segregated from other funds except to the extent required by law.   If the Trustee or Paying Agent is unable to apply any money or U.S. Government Obligations in accord-   ance with Section 11.1 hereof by reason of any legal proceeding or by reason of any order or judgment of any court   or Governmental Authority enjoining, restraining or otherwise prohibiting such application, the Company’s and any   Guarantor’s obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit had   occurred pursuant to Section 11.1 hereof; provided that if the Company has made any payment of principal of, pre-   mium or interest on, any Notes because of 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 or U.S. Government Obligations   held by the Trustee or Paying Agent.   ARTICLE XII      MISCELLANEOUS   SECTION 12.1. Notices.  Any notice, request, direction, consent or communication made pursuant to   the provisions of this Indenture or the Notes shall be in writing and delivered in person, sent by facsimile, sent by   electronic mail in pdf format, delivered by commercial courier service or mailed by first-class mail, postage prepaid,   addressed as follows:   if to the Company or to any Guarantor:   Townsquare Media, Inc.   240 Greenwich Avenue   Greenwich, CT 06830   Attention:  Chief Financial Officer   Facsimile:  (203) 861-0900   with a copy to:   Kirkland & Ellis LLP   601 Lexington Ave   New York, New York 10022   Attention:  Joshua Korff, Esq.   Facsimile:  (212) 446-4900     





 







   -103-                if to the Trustee, at its corporate trust office, which corporate trust office for purposes of this Indenture is at   the date hereof located at:      Wilmington Trust, National Association   246 Goose Lane, Suite 105   Guilford, Connecticut 06437-2186   Attention:  Townsquare Media, Inc. Administrator   Telecopy:  203-453-1183   The Company or the Trustee by written notice to the other may designate additional or different addresses   for subsequent notices or communications.   Any notice or communication to the Company or the Guarantors shall be deemed to have been given or   made as of the date so delivered if personally delivered or if delivered electronically, in pdf format; when receipt is   acknowledged, if telecopied; and seven calendar days after mailing if sent by registered or certified mail, postage   prepaid (except that a notice of change of address shall not be deemed to have been given until actually received by   the addressee).  Any notice or communication to the Trustee shall be deemed delivered upon receipt.   Any notice or communication sent to a Holder shall be mailed to the Holder at the Holder’s address as it   appears in the Notes Register and shall be sufficiently given if so sent within the time prescribed.   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.  If a notice or communication is sent in the manner provided above, it is duly given, wheth-   er or not the addressee receives it, except that notices to the Trustee shall be effective only upon receipt.   Notwithstanding any other provision of this Indenture or any Note, where this Indenture or any Note pro-   vides for notice of any event (including any notice of redemption or purchase) to a Holder of a Global Note (whether   by mail or otherwise), such notice shall be sufficiently given if given to DTC (or its designee) pursuant to the stand-   ing instructions from DTC or its designee.   SECTION 12.2. Certificate and Opinion as to Conditions Precedent.  Upon any request or application   by the Company or any of the Guarantors to the Trustee to take or refrain from taking any action under this Inden-   ture, the Company or such Guarantor, as the case may be, shall furnish to the Trustee:   (1) an Officer’s Certificate in form satisfactory to the Trustee (which shall include the state-   ments set forth in Section 12.3 hereof) stating that, in the opinion of the signers, all conditions precedent, if   any, provided for in this Indenture relating to the proposed action have been satisfied; and   (2) an Opinion of Counsel in form satisfactory to the Trustee (which shall include the state-   ments set forth in Section 12.3 hereof) stating that, in the opinion of such counsel, all such conditions prec-   edent have been satisfied and all covenants have been complied with.   SECTION 12.3. Statements Required in Certificate or Opinion.  Each certificate or opinion with respect   to compliance with a covenant or condition provided for in this Indenture:   (1) a statement that the individual making such certificate or opinion has read such covenant   or condition;   (2) a brief statement as to the nature and scope of the examination or investigation upon   which the statements or opinions contained in such certificate or opinion are based;   (3) a statement that, in the opinion of such individual, he has made such examination or in-   vestigation as is necessary to enable him to express an informed opinion as to whether or not such covenant   or condition has been complied with; and     





 







   -104-                (4) a statement as to whether or not, in the opinion of such individual, such covenant or con-   dition has been complied with.   In giving such Opinion of Counsel, counsel may rely as to factual matters on an Officer’s Certificate or on   certificates of public officials.   SECTION 12.4. When Notes Disregarded.  In determining whether the Holders of the required aggre-   gate principal amount of Notes have concurred in any direction, waiver or consent, Notes owned by the Company,   any Guarantor or any Affiliate of them shall be disregarded and deemed not to be outstanding, except that, for the   purpose of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent,   only Notes which a Trust Officer of the Trustee actually knows are so owned shall be so disregarded.  Also, subject   to the foregoing, only Notes outstanding at the time shall be considered in any such determination.   SECTION 12.5. Rules by Trustee, Paying Agent and Registrar.  The Trustee may make reasonable   rules for action by, or at meetings of, Holders.  The Registrar and the Paying Agent may make reasonable rules for   their functions.   SECTION 12.6. Legal Holidays.  A “Legal Holiday” is a Saturday, a Sunday or other day on which   commercial banking institutions are authorized or required to be closed in New York, New York or the state of the   place of payment.  If a payment date is a Legal Holiday, payment shall be made on the next succeeding day that is   not a Legal Holiday, and no interest shall accrue for the intervening period.  If a regular record date is a Legal Holi-   day, the record date shall not be affected.   SECTION 12.7. Governing Law.  THIS INDENTURE, THE NOTES AND THE GUARANTEES   SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF   NEW YORK.   SECTION 12.8. Jurisdiction.  The Company and the Guarantors agree that any suit, action or proceed-   ing against the Company or any Guarantor brought by any Holder or the Trustee arising out of or based upon this   Indenture, the Guarantee or the Notes may be instituted in any state or Federal court in the Borough of Manhattan,   New York, New York, and any appellate court from any thereof, and each of them irrevocably submits to the   non-exclusive jurisdiction of such courts in any suit, action or proceeding.  The Company and the Guarantors irrevo-   cably waive, to the fullest extent permitted by law, any objection to any suit, action, or proceeding that may be   brought in connection with this Indenture, the Guarantee or the Notes, including such actions, suits or proceedings   relating to securities laws of the United States of America or any state thereof, in such courts whether on the grounds   of venue, residence or domicile or on the ground that any such suit, action or proceeding has been brought in an in-   convenient forum.  The Company and the Guarantors agree that final judgment in any such suit, action or proceed-   ing brought in such court shall be conclusive and binding upon the Company or the Guarantors, as the case may be,   and may be enforced in any court to the jurisdiction of which the Company or the Guarantors, as the case may be,   are subject by a suit upon such judgment.   SECTION 12.9. Waivers of Jury Trial.  EACH OF THE COMPANY, THE GUARANTORS AND   THE TRUSTEE HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST   EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY   LEGAL ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE   NOTES OR THE GUARANTEES AND FOR ANY COUNTERCLAIM THEREIN.   SECTION 12.10. USA PATRIOT Act.  The parties hereto acknowledge that in accordance with Sec-   tion 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 parties to this Indenture agree that they will   provide the Trustee with such information as it may request in order to satisfy the requirements of the USA   PATRIOT Act.     





 







   -105-                SECTION 12.11. No Recourse Against Others.  No director, officer, employee, incorporator or share-   holder of the Company or any of its Subsidiaries or Affiliates, or such (other than the Company and the Guarantors),   shall have any liability for any obligations of the Company or the Guarantors under the Notes, the Guarantees 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 issu-   ance of the Notes.  Such waiver may not be effective to waive liabilities under the federal securities laws and it is the   view of the SEC that such a waiver is against public policy.   SECTION 12.12. Successors.  All agreements of the Company and each Guarantor in this Indenture and   the Notes shall bind their respective successors.  All agreements of the Trustee in this Indenture shall bind its suc-   cessors.   SECTION 12.13. Multiple Originals.  The parties may sign any number of copies of this Indenture.    Each signed copy shall be an original, but all of them together represent the same agreement.  The exchange of cop-   ies 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.   SECTION 12.14. Table of Contents; Headings.  The table of contents, cross-reference table and head-   ings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not in-   tended to be considered a part hereof and shall not modify or restrict any of the terms or provisions hereof.   SECTION 12.15. Force Majeure.  In no event shall the Trustee 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 be-   yond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or   military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utili-   ties, communications or computer (software and hardware) services, it being understood that the Trustee shall use   reasonable best efforts which are consistent with accepted practices in the banking industry to resume performance   as soon as practicable under the circumstances.   SECTION 12.16. Severability.  In case any provision in this Indenture or in the Notes shall be invalid, il-   legal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be   affected or impaired thereby.   [Signature on following pages]     





 







   [Signature Page to the Indenture]             IN WITNESS WHEREOF, the parties have caused this Indenture to be duly executed all as of the date and   year first written above.   TOWNSQUARE MEDIA, INC.   By: /s/ Stuart Rosenstein     Name:  Stuart Rosenstein    Title:  Executive Vice President and      Chief Financial Officer   ON BEHALF OF EACH OF THE GUARANTORS   LISTED ON SCHEDULE I HERETO   By: /s/ Stuart Rosenstein     Name: Stuart Rosenstein    Title: Executive Vice President and     Chief Financial Officer     





 







   [Signature Page to the Indenture]             WILMINGTON TRUST, NATIONAL ASSOCIATION,   as Trustee   By: /s/ Joseph P. O’Donnell     Name: Joseph P. O’Donnell    Title: Vice President     





 







                SCHEDULE I      Guarantors      1. Bryton Acquisition Company, LLC, a Delaware limited liability company   2. GAP Broadcasting Burlington License, LLC, a Delaware limited liability company   3. GAP Broadcasting Burlington, LLC, a Delaware limited liability company   4. GAP Broadcasting Midland-Odessa License, LLC, a Delaware limited liability company   5. GAP Broadcasting Midland-Odessa, LLC, a Delaware limited liability company   6. Lyla Acquisition Company, LLC, a Delaware limited liability company (f/k/a Peak II   Holding LLC)   7. Lyla Intermediate Holding, LLC, a Delaware limited liability company (f/k/a Peak II In-   termediate Holding LLC)   8. Millennium Atlantic City II Holdco, LLC, a Delaware limited liability company   9. Regent Licensee of Chico, Inc., a Delaware corporation   10. Regent Licensee of Erie, Inc., a Delaware corporation   11. Regent Licensee of Flagstaff, Inc., a Delaware corporation   12. Regent Licensee of Kingman, Inc., a Delaware corporation   13. Regent Licensee of Lake Tahoe, Inc., a Delaware corporation   14. Regent Licensee of Lexington, Inc., a Delaware corporation   15. Regent Licensee of Palmdale, Inc., a Delaware corporation   16. Regent Licensee of Redding, Inc., a Delaware corporation   17. Regent Licensee of San Diego, Inc., a Delaware corporation   18. Regent Licensee of South Carolina, Inc., a Delaware corporation   19. Regent Licensee of Watertown, Inc., a Delaware corporation   20. Special Events Management, LLC, a Delaware limited liability company   21. Townsquare Active Events, LLC, a Delaware limited liability company   22. Townsquare Beverage, LLC, a Delaware limited liability company   23. Townsquare Commerce, LLC, a Delaware limited liability company (f/k/a Seize the   Deal, LLC)   24. Townsquare Experimental, LLC, a Delaware limited liability company   25. Townsquare Expos, LLC, a Delaware limited liability company   26. Townsquare Interactive, LLC, a Delaware limited liability company   27. Townsquare Lifestyle Events, LLC, a Delaware limited liability company   28. Townsquare Live Events Colorado, LLC, a Delaware limited liability company   29. Townsquare Live Events International, LLC, a Delaware limited liability company   30. Townsquare Live Events Minnesota, LLC, a Delaware limited liability company   31. Townsquare Live Events Montana, LLC, a Delaware limited liability company   32. Townsquare Live Events Texas, LLC, a Delaware limited liability company   33. Townsquare Live Events Wisconsin, LLC, a Delaware limited liability company   34. Townsquare Live Events, LLC, a Delaware limited liability company   35. Townsquare Live Productions, LLC, a Delaware limited liability company   36. Townsquare Management Company, LLC, a Delaware limited liability company   37. Townsquare Media 2010, Inc., a Delaware corporation   38. Townsquare Media Abilene License, LLC, a Delaware limited liability company     





 







   I-2                39. Townsquare Media Abilene, LLC, a Delaware limited liability company   40. Townsquare Media Acquisition III, LLC, a Delaware limited liability company   41. Townsquare Media Acquisition IV, LLC, a Delaware limited liability company   42. Townsquare Media Amarillo License, LLC, a Delaware limited liability company   43. Townsquare Media Amarillo, LLC, a Delaware limited liability company   44. Townsquare Media Atlantic City II License, LLC, a Delaware limited liability company   45. Townsquare Media Atlantic City II, LLC, a Delaware limited liability company   46. Townsquare Media Atlantic City III Holdco, LLC, a Delaware limited liability company   47. Townsquare Media Atlantic City III License, LLC, a Delaware limited liability company   48. Townsquare Media Atlantic City III, LLC, a Delaware limited liability company   49. Townsquare Media Atlantic City License, LLC, a Delaware limited liability company   50. Townsquare Media Atlantic City, LLC, a Delaware limited liability company   51. Townsquare Media Augusta Waterville License, LLC, a Delaware limited liability com-   pany   52. Townsquare Media Augusta Waterville, LLC, a Delaware limited liability company   53. Townsquare Media Bangor License, LLC, a Delaware limited liability company   54. Townsquare Media Bangor, LLC, a Delaware limited liability company   55. Townsquare Media Battle Creek License LLC, a Delaware limited liability company   56. Townsquare Media Battle Creek LLC, a Delaware limited liability company   57. Townsquare Media Billings License, LLC, a Delaware limited liability company   58. Townsquare Media Billings, LLC, a Delaware limited liability company   59. Townsquare Media Binghampton License, LLC, a Delaware limited liability company   60. Townsquare Media Binghampton, LLC, a Delaware limited liability company   61. Townsquare Media Bismarck License, LLC, a Delaware limited liability company   62. Townsquare Media Bismarck, LLC, a Delaware limited liability company   63. Townsquare Media Boise License, LLC, a Delaware limited liability company   64. Townsquare Media Boise, LLC, a Delaware limited liability company (f/k/a/ Peak   Broadcasting of Boise, LLC)   65. Townsquare Media Bozeman License, LLC, a Delaware limited liability company   66. Townsquare Media Bozeman, LLC, a Delaware limited liability company   67. Townsquare Media Broadcasting, LLC, a Delaware limited liability company   68. Townsquare Media Casper License, LLC, a Delaware limited liability company   69. Townsquare Media Casper, LLC, a Delaware limited liability company   70. Townsquare Media Cedar Rapids License LLC, a Delaware limited liability company   71. Townsquare Media Cedar Rapids LLC, a Delaware limited liability company   72. Townsquare Media Cheyenne License, LLC, a Delaware limited liability company   73. Townsquare Media Cheyenne, LLC, a Delaware limited liability company   74. Townsquare Media Danbury License LLC, a Delaware limited liability company   75. Townsquare Media Danbury LLC, a Delaware limited liability company   76. Townsquare Media Dubuque License, LLC, a Delaware limited liability company   77. Townsquare Media Dubuque, LLC, a Delaware limited liability company   78. Townsquare Media Duluth License, LLC, a Delaware limited liability company   79. Townsquare Media Duluth, LLC, a Delaware limited liability company   80. Townsquare Media Faribault License LLC, a Delaware limited liability company   81. Townsquare Media Faribault LLC, a Delaware limited liability company   82. Townsquare Media Grand Junction License, LLC, a Delaware limited liability company     





 







   I-3                83. Townsquare Media Grand Junction, LLC, a Delaware limited liability company   84. Townsquare Media Kalamazoo License LLC, a Delaware limited liability company   85. Townsquare Media Kalamazoo LLC, a Delaware limited liability company   86. Townsquare Media Killeen-Temple License, LLC, a Delaware limited liability company   87. Townsquare Media Lake Charles License, LLC, a Delaware limited liability company   88. Townsquare Media Lake Charles, LLC, a Delaware limited liability company   89. Townsquare Media Lansing License LLC, a Delaware limited liability company   90. Townsquare Media Lansing LLC, a Delaware limited liability company   91. Townsquare Media Laramie License, LLC, a Delaware limited liability company   92. Townsquare Media Laramie, LLC, a Delaware limited liability company   93. Townsquare Media Lawton License, LLC, a Delaware limited liability company   94. Townsquare Media Lawton, LLC, a Delaware limited liability company   95. Townsquare Media Licensee of Albany and Lafayette, Inc., a Delaware corporation   96. Townsquare Media Licensee of Peoria, Inc., a Delaware corporation   97. Townsquare Media Licensee of St. Cloud, Inc., a Delaware corporation   98. Townsquare Media Licensee of Utica/Rome, Inc., a Delaware corporation   99. Townsquare Media Lubbock License, LLC, a Delaware limited liability company   100. Townsquare Media Lubbock, LLC, a Delaware limited liability company   101. Townsquare Media Lufkin License, LLC, a Delaware limited liability company   102. Townsquare Media Lufkin, LLC, a Delaware limited liability company   103. Townsquare Media Missoula License, LLC, a Delaware limited liability company   104. Townsquare Media Missoula, LLC, a Delaware limited liability company   105. Townsquare Media Monmouth-Ocean License, LLC, a Delaware limited liability com-   pany   106. Townsquare Media Monmouth-Ocean, LLC, a Delaware limited liability company   107. Townsquare Media New Bedford License, LLC, a Delaware limited liability company   108. Townsquare Media New Bedford, LLC, a Delaware limited liability company   109. Townsquare Media Odessa-Midland II License, LLC, a Delaware limited liability com-   pany   110. Townsquare Media Odessa-Midland II, LLC, a Delaware limited liability company   111. Townsquare Media Odessa-Midland License, LLC, a Delaware limited liability compa-   ny   112. Townsquare Media Odessa-Midland, LLC, a Delaware limited liability company   113. Townsquare Media of Albany and Lafayette, Inc., a Delaware corporation   114. Townsquare Media of Albany, Inc., a Delaware corporation   115. Townsquare Media of Buffalo, Inc., a Delaware corporation   116. Townsquare Media of El Paso, Inc., a Delaware corporation   117. Townsquare Media of Evansville/Owensboro, Inc., a Delaware corporation   118. Townsquare Media of Flint, Inc., a Delaware corporation   119. Townsquare Media of Ft. Collins and Grand Rapids, LLC, a California limited liability   company   120. Townsquare Media of Ft. Collins, Inc., a Delaware corporation   121. Townsquare Media of Grand Rapids, Inc., a Delaware corporation   122. Townsquare Media of Killeen-Temple, Inc., a Delaware corporation (f/k/a Townsquare   Media of Bloomington, Inc.)   123. Townsquare Media of Lafayette, LLC, a Delaware limited liability company     





 







   I-4                124. Townsquare Media of Midwest, LLC, a Delaware limited liability company   125. Townsquare Media of Presque Isle, Inc., a Delaware corporation (f/k/a Townsquare Me-   dia of Peoria, Inc.)   126. Townsquare Media of St. Cloud, Inc., a Delaware corporation   127. Townsquare Media of Utica/Rome, Inc., a Delaware corporation   128. Townsquare Media Oneonta License, LLC, a Delaware limited liability company   129. Townsquare Media Oneonta, LLC, a Delaware limited liability company   130. Townsquare Media Pocatello License, LLC, a Delaware limited liability company   131. Townsquare Media Pocatello, LLC, a Delaware limited liability company   132. Townsquare Media Portland License LLC, a Delaware limited liability company   133. Townsquare Media Portland LLC, a Delaware limited liability company   134. Townsquare Media Portsmouth License LLC, a Delaware limited liability company   135. Townsquare Media Portsmouth LLC, a Delaware limited liability company   136. Townsquare Media Poughkeepsie License, LLC, a Delaware limited liability company   137. Townsquare Media Poughkeepsie, LLC, a Delaware limited liability company (f/k/a   Peak Broadcasting of Fresno, LLC)   138. Townsquare Media Presque Isle License, LLC, a Delaware limited liability company   139. Townsquare Media Quad Cities License LLC, a Delaware limited liability company   140. Townsquare Media Quad Cities LLC, a Delaware limited liability company   141. Townsquare Media Quincy-Hannibal License, LLC, a Delaware limited liability compa-   ny   142. Townsquare Media Quincy-Hannibal, LLC, a Delaware limited liability company   143. Townsquare Media Rochester License LLC, a Delaware limited liability company   144. Townsquare Media Rochester LLC, a Delaware limited liability company   145. Townsquare Media Rockford License LLC, a Delaware limited liability company   146. Townsquare Media Rockford LLC, a Delaware limited liability company   147. Townsquare Media San Angelo License, LLC, a Delaware limited liability company   148. Townsquare Media San Angelo, LLC, a Delaware limited liability company   149. Townsquare Media Sedalia License, LLC, a Delaware limited liability company   150. Townsquare Media Sedalia, LLC, a Delaware limited liability company   151. Townsquare Media Shelby License, LLC, a Delaware limited liability company   152. Townsquare Media Shelby, LLC, a Delaware limited liability company   153. Townsquare Media Shreveport License, LLC, a Delaware limited liability company   154. Townsquare Media Shreveport, LLC, a Delaware limited liability company   155. Townsquare Media Sioux Falls License, LLC, a Delaware limited liability company   156. Townsquare Media Sioux Falls, LLC, a Delaware limited liability company   157. Townsquare Media Texarkana License, LLC, a Delaware limited liability company   158. Townsquare Media Texarkana, LLC, a Delaware limited liability company   159. Townsquare Media Trenton License, LLC, a Delaware limited liability company   160. Townsquare Media Trenton, LLC, a Delaware limited liability company   161. Townsquare Media Tri-Cities License, LLC, a Delaware limited liability company   162. Townsquare Media Tri-Cities, LLC, a Delaware limited liability company   163. Townsquare Media Tuscaloosa License, LLC, a Delaware limited liability company   164. Townsquare Media Tuscaloosa, LLC, a Delaware limited liability company   165. Townsquare Media Twin Falls License, LLC, a Delaware limited liability company   166. Townsquare Media Twin Falls, LLC, a Delaware limited liability company     





 







   I-5                167. Townsquare Media Tyler License, LLC, a Delaware limited liability company   168. Townsquare Media Tyler, LLC, a Delaware limited liability company   169. Townsquare Media Victoria License, LLC, a Delaware limited liability company   170. Townsquare Media Victoria, LLC, a Delaware limited liability company   171. Townsquare Media Waterloo License LLC, a Delaware limited liability company   172. Townsquare Media Waterloo LLC, a Delaware limited liability company   173. Townsquare Media West Central Holdings, LLC, a Delaware limited liability company   174. Townsquare Media West Central Intermediate Holdings, LLC, a Delaware limited liabil-   ity company   175. Townsquare Media West Central Radio Broadcasting, LLC, a Delaware limited liability   company   176. Townsquare Media Wichita Falls License, LLC, a Delaware limited liability company   177. Townsquare Media Wichita Falls, LLC, a Delaware limited liability company   178. Townsquare Media Yakima License, LLC, a Delaware limited liability company   179. Townsquare Media Yakima, LLC, a Delaware limited liability company   180. Townsquare MMN, LLC, a Delaware limited liability company   181. Townsquare New Jersey Holdco, LLC, a Delaware limited liability company   182. Townsquare Next, LLC, a Delaware limited liability company   183. Townsquare Radio Holdings, LLC, a Delaware limited liability company   184. Townsquare Radio, Inc., a Delaware corporation   185. Townsquare Radio, LLC, a Delaware limited liability company   186. Zader Acquisition Company LLC, a Delaware limited liability company           





 







   A-1             EXHIBIT A   [FORM OF FACE OF GLOBAL RESTRICTED NOTE]   [Applicable Restricted Notes Legend]   [Depository Legend, if applicable]   [OID Legend, if applicable]   [Temporary Regulation S Legend, if applicable]   No. [___] Principal Amount $[___________] [as revised by the Sched-   ule of Increases and Decreases in Global Note attached here-   to]1   CUSIP NO. _________________________   TOWNSQUARE MEDIA, INC.   6.500% Senior Notes due 2023   Townsquare Media, Inc., a Delaware corporation (“Company”), promises to pay to [Cede & Co.],2 or its   registered assigns, the principal sum of _______________ Dollars, [as revised by the Schedule of Increases and De-   creases in Global Note attached hereto],3 on April 1, 2023.   Interest Payment Dates:  April 1 and October 1, commencing on October 1, 2015   Record Dates: March 15 and September 15   Additional provisions of this Note are set forth on the other side of this Note.          1 Insert in Global Notes only.   2 Insert in Global Notes only.   3 Insert in Global Notes only.     





 







   A-2                IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.   TOWNSQUARE MEDIA, INC.   By:       Name:    Title:        





 







   A-3             TRUSTEE CERTIFICATE OF AUTHENTICATION   This Note is one of the 6.500% Senior Notes due 2023 referred to in the within-mentioned Indenture.   WILMINGTON TRUST, NATIONAL ASSOCIATION,   as Trustee   By:       Name:    Title:   Dated:          





 







   A-4             [FORM OF REVERSE SIDE OF NOTE]   TOWNSQUARE MEDIA, INC.   6.500% SENIOR NOTES DUE 2023   Capitalized terms used herein and not defined herein have the meanings ascribed thereto in the Indenture.   1. Interest   The Company promises to pay interest on the principal amount of this Note at 6.500% per annum from   April 1, 2015 until maturity.  The Company will pay interest semi-annually in arrears every April 1 and October 1 of   each year, or if any such day is not a Business Day, on the next succeeding Business Day (each, an “Interest Pay-   ment Date”).  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 the date of issuance; provided, that the first Interest Payment Date shall be October 1,   2015.  The Company shall pay interest on overdue principal at the rate specified herein, and it shall pay interest (in-   cluding 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 on the Notes will be   computed on the basis of a 360-day year comprised of twelve 30-day months.   [Until this Regulation S Temporary Global Note is exchanged for one or more Regulation S Permanent   Global Notes, the Holder hereof shall not be entitled to receive payments of interest hereon; until so exchanged in   full, this Regulation S Temporary Global Note shall in all other respects be entitled to the same benefits as other   Notes under the Indenture.]   2. Method of Payment   By no later than 11:00 a.m. (New York City time) on the date on which any principal of, premium, if any,   interest, on any Note is due and payable, the Company shall deposit with the Paying Agent a sum sufficient in im-   mediately available funds to pay such principal, premium, interest when due.  Interest on any Note which is payable,   and is timely paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name   such Note (or one or more Predecessor Notes) is registered at the close of business on the preceding March 15 and   September 15 at the office or agency of the Company maintained for such purpose pursuant to Section 2.3 of the   Indenture.  The principal of (and premium, if any) and interest on the Notes shall be payable at the office or agency   of Paying Agent or Registrar designated by the Company maintained for such purpose (which shall initially be the   office of the Trustee maintained for such purpose), or at such other office or agency of the Company as may be   maintained for such purpose pursuant to Section 2.3 of the Indenture; provided, however, that, at the option of the   Paying Agent, each installment of interest may be paid by (i) check mailed to addresses of the Persons entitled there-   to as such addresses shall appear on the Notes Register or (ii) wire transfer to an account located in the United States   maintained by the payee, subject to the last sentence of this paragraph. Payments in respect of Notes represented by   a Global Note (including principal, premium, if any, interest) will be made by wire transfer of immediately available   funds to the accounts specified by The Depository Trust Company or any successor depository.  Payments in respect   of Notes represented by Definitive Notes (including principal, premium, if any, interest) held by a Holder of at least   $1,000,000 aggregate principal amount of Notes represented by Definitive Notes will be made in accordance with   the Notes Register, or by wire transfer to a U.S. dollar account maintained by the payee with a bank in the United   States if such Holder elects payment by wire transfer by giving written notice to the Trustee or the Paying Agent to   such effect designating such account no later than 15 days immediately preceding the relevant due date for payment   (or such other date as the Trustee may accept in its discretion).  If an Interest Payment Date is a Legal Holiday,   payment shall be made on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the   intervening period.  If a regular record date is a Legal Holiday, the record date shall not be affected.   3. Paying Agent and Registrar   The Company initially appoints Wilmington Trust, National Association (the “Trustee”) as Registrar and   Paying Agent for the Notes.  The Company may change any Registrar or Paying Agent without prior notice to the   Holders.  The Company or any Guarantor may act as Paying Agent, Registrar or transfer agent.     





 







   A-5             4. Indenture   The Company issued the Notes under an Indenture dated as of April 1, 2015 (as it may be amended or sup-   plemented from time to time in accordance with the terms thereof, the “Indenture”), among the Company, the guar-   antors named therein and the Trustee.  The terms of the Notes include those stated in the Indenture and those made   part of the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C. Sections 77aaa-77bbbb) as in effect   on the date of the Indenture (the “Act”).  The Notes are subject to all terms and provisions of the Indenture, and   Holders are referred to the Indenture and the Act for a statement of those terms.   The Notes are senior obligations of the Company.  The aggregate principal amount of Notes that may be   authenticated and delivered under the Indenture is unlimited.  This Note is one of the 6.500% Senior Notes due 2023   referred to in the Indenture.  The Notes include (i) $300,000,000 principal amount of the Company’s 6.500% Senior   Notes due 2023 issued under the Indenture on April 1, 2015 (the “Initial Notes”) and (ii) if and when issued, addi-   tional Notes that may be issued from time to time under the Indenture subsequent to April 1, 2015 (the “Additional   Notes”) as provided in Section 2.1(a) of the Indenture.  The Initial Notes and the Additional Notes shall be consid-   ered collectively as a single class for all purposes of the Indenture; provided that the Additional Notes will not be   issued with the same CUSIP as the existing Notes unless such Additional Notes are fungible with the existing Notes   for U.S. federal income tax purposes.  The Indenture imposes certain limitations on the incurrence of indebtedness,   the making of restricted payments, the sale of assets, the incurrence of certain liens, the making of payments for   consents, the entering into of agreements that restrict distribution from restricted subsidiaries and the consummation   of mergers and consolidations.  The Indenture also imposes requirements with respect to the provision of financial   information and the provision of guarantees of the Notes by certain subsidiaries.   5. [Reserved]   6. Guarantees   To guarantee the due and punctual payment of the principal, premium, if any, interest (including post-filing   or post-petition interest in any proceeding under Bankruptcy Law) on the Notes and all other amounts payable by   the Company under the Indenture and the Notes when and as the same shall be due and payable, whether at maturi-   ty, by acceleration or otherwise, according to the terms of the Notes and the Indenture, the Guarantor will uncondi-   tionally guarantee (and future guarantors, jointly and severally with the Guarantor, will fully and unconditionally   Guarantee) such obligations on a senior basis pursuant to the terms of the Indenture.   7. Redemption   (a) At any time prior to April 1, 2018, the Company may redeem the Notes in whole or in part, at its   option, upon not less than 30 nor more than 60 days’ prior notice, with a copy to the Trustee, to each Holder of   Notes to the address of such Holder appearing in the Notes Register, at a redemption price (expressed as percentages   of principal amount of the Notes to be redeemed) equal to 100% of the principal amount of Notes redeemed plus the   relevant Applicable Premium as of, and accrued and unpaid interest, to but excluding the date of redemption (the   “Redemption Date”), subject to the rights of holders of the Notes on the relevant record date to receive interest due   on the relevant interest payment date.   (b) At any time and from time to time prior to April 1, 2018, the Company may, at its option, on one   or more occasions, upon not less than 30 nor more than 60 days’ prior notice, with a copy to the Trustee, to each   Holder of Notes to the address of such Holder appearing in the Notes Register, redeem up to 40% of the original   aggregate principal amount of Notes issued under this Indenture at a redemption price (expressed as percentages of   principal amount of the Notes to be redeemed) equal to 106.500% of the aggregate principal amount thereof, plus   accrued and unpaid interest, thereon, if any, to but excluding the applicable Redemption Date, subject to the right of   Holders of record of the Notes on the relevant record date to receive interest due on the relevant interest payment   date, with the net cash proceeds received by the Company of one or more Equity Offerings of the Company; provid-   ed that not less than 60% of the original aggregate principal amount of Notes initially issued under the Indenture   remains outstanding immediately after the occurrence of each such redemption (excluding Notes held by the Com-   pany or any of its Restricted Subsidiaries); provided further that each such redemption occurs not later than     





 







   A-6             180 days after the date of closing of the related Equity Offering. The Trustee shall select the Notes to be purchased   in the manner described under Sections 5.1 through 5.6 of the Indenture.   (c) Except pursuant to clauses (a) and (b) of this paragraph 7, the Notes will not be redeemable at the   Company’s option prior to April 1, 2018.   (d) At any time and from time to time on or after April 1, 2018, the Company may redeem the Notes,   in whole or in part, upon not less than 30 nor more than 60 days’ prior notice, with a copy to the Trustee, to each   Holder of Notes to the address of such Holder appearing in the Notes Register at the redemption prices (expressed as   percentages of principal amount of the Notes to be redeemed) set forth in the table below, plus accrued and unpaid   interest thereon, to but excluding the applicable Redemption Date, subject to the right of Holders of record of the   Notes on the relevant record date to receive interest due on the relevant interest payment date, if redeemed during   the twelve-month period beginning on April 1 of each of the years indicated in the table below:   Period Percentage   2018 ................................................................................................  104.875%   2019 ................................................................................................  103.250%   2020 ................................................................................................  101.625%   2021 and thereafter .........................................................................  100.000%      (e) Notwithstanding the foregoing, in connection with any tender offer for the Notes, including a   Change of Control Offer or Asset Disposition 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 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 shall have the right upon not less than 30 nor more   than 60 days’ prior notice, with a copy to the Trustee, to each Holder of Notes to the address of such Holder appear-   ing in the Notes Register, given not more than 30 days following such purchase date to redeem all Notes that remain   outstanding following such purchase at a redemption 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, thereon,   to but not including, the date of such redemption.   (f) Unless the Company defaults in the payment of the redemption price, interest will cease to accrue   on the Notes or portions thereof called for redemption on the applicable Redemption Date.   (g) Any redemption pursuant to this paragraph 7 shall be made pursuant to the provisions of Sec-   tions 5.1 through 5.6 of the Indenture.   Except as set forth in paragraph 5 above, the Company is not required to make mandatory redemption or   sinking fund payments with respect to the Notes.   8. Repurchase Provisions   If a Change of Control occurs, each Holder will have the right to require the Company to repurchase from   each Holder all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s   Notes at a purchase price in cash equal to 101% of the aggregate principal amount thereof plus accrued and unpaid   interest, to but excluding the date of purchase, subject to the right of Holders of record on the relevant record date to   receive interest due on the relevant interest payment date as provided in, and subject to the terms of, the Indenture.   Upon certain Asset Dispositions, the Company may be required to use the Excess Proceeds from such As-   set Dispositions to offer to offer to purchase the maximum aggregate principal amount of Notes (that is $2,000 or an   integral multiple of $1,000 in excess thereof) and, at the Company’s option, Pari Passu Indebtedness  that may be   purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount   thereof, plus accrued and unpaid interest, to the date fixed for the closing of such offer, in accordance with the pro-   cedures set forth in Section 3.5 and in Article V of the Indenture.     





 







   A-7             9. Denominations; Transfer; Exchange   The Notes shall be issuable only in fully registered form in minimum denominations of principal amount of   $2,000 and any integral multiple of $1,000 in excess thereof.  A Holder may transfer or exchange Notes in accord-   ance with the Indenture.  The Registrar may require a Holder, among other things, to furnish appropriate endorse-   ments or transfer documents and to pay a sum sufficient to cover any tax and fees required by law or permitted by   the Indenture.  The Registrar need not register the transfer of or exchange of any Note (A) for a period beginning   (1) 15 days before the mailing of a notice of an offer to repurchase or redeem Notes and ending at the close of busi-   ness on the day of such mailing or (2) 15 days before an Interest Payment Date and ending on such Interest Payment   Date or (B) called for redemption, except the unredeemed portion of any Note being redeemed in part.   [This Regulation S Temporary Global Note is exchangeable in whole or in part for one or more Global   Notes only (i) on or after the expiration of the Restricted Period and (ii) upon presentation of certificates (accompa-   nied by an Opinion of Counsel, if applicable) required by Article II of the Indenture.  Upon exchange of this Regula-   tion S Temporary Global Note for one or more Global Notes, the Trustee shall cancel this Regulation S Temporary   Global Note.]   10. Persons Deemed Owners   The registered Holder of this Note may be treated as the owner of it for all purposes.   11. Unclaimed Money   If money for the payment of principal, premium, if any, interest remains unclaimed for two years, the Trus-   tee or Paying Agent shall pay the money back to the Company at its written request unless an abandoned property   law designates another Person to receive such money.  After any such payment, Holders entitled to the money must   look only to the Company and not to the Trustee for payment as general creditors unless an abandoned property law   designates another person for payment.   12. Discharge and Defeasance   Subject to certain exceptions and conditions set forth in the Indenture, the Company at any time may termi-   nate some or all of its obligations under the Notes and the Indenture if the Company deposits with the Trustee mon-   ey or U.S. Government Obligations for the payment of principal, premium, if any and interest on the Notes to re-   demption or maturity, as the case may be.   13. Amendment, Supplement, Waiver   Subject to certain exceptions contained in the Indenture, the Indenture and the Notes may be amended, or a   Default thereunder may be waived, with the consent of the Holders of a majority in aggregate principal amount of   the outstanding Notes.  Without notice to or the consent of any Holder, the Company, the Guarantors and the Trus-   tee may amend or supplement the Indenture and the Notes as provided in the Indenture.   14. Defaults and Remedies   If an Event of Default (other than an Event of Default relating to certain events of bankruptcy, insolvency   or reorganization of the Company or certain Guarantors) occurs and is continuing, the Trustee by notice to the Com-   pany, or the Holders of at least 30% in principal amount of the outstanding Notes by notice to the Company and the   Trustee, may, and the Trustee (subject to the provisions of the Indenture) at the request of such Holders shall, de-   clare the principal of, premium, if any, and accrued and unpaid interest, and any other monetary obligations on all   the Notes to be due and payable immediately.  Upon the effectiveness of such declaration, such principal, premium,   interest, and other monetary obligations will be due and payable immediately.  If a bankruptcy, insolvency or reor-   ganization of the Company or certain Guarantors occurs and is continuing, the principal of, premium, if any, and   accrued and unpaid interest and any other monetary obligations on all the Notes will become and be immediately   due and payable without any declaration or other act on the part of the Trustee or any Holders.  Under certain cir-    





 







   A-8             cumstances, the Holders of a majority in principal amount of the outstanding Notes may rescind any such accelera-   tion with respect to the Notes and its consequences.   15. Trustee Dealings with the Company   Subject to certain limitations set forth in the Indenture, the Trustee in its individual or any other capacity   may become the owner or pledgee of Notes and may otherwise deal with the Company, Guarantors or their Affili-   ates with the same rights it would have if it were not Trustee.  In addition, the Trustee shall be permitted to engage   in transactions with the Company; provided, however, that if the Trustee acquires any conflicting interest under the   Act, the Trustee must (i) eliminate such conflict within 90 days of acquiring such conflicting interest, (ii) apply to   the Commission for permission to continue acting as Trustee or (iii) resign.   16. No Recourse Against Others   No director, officer, employee, incorporator or shareholder of the Company or any of its Subsidiaries or Af-   filiates, as such (other than the Company and the Guarantors), shall have any liability for any obligations of the   Company or the Guarantors under the Notes, the Guarantees or the 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.  Such waiver may not be   effective to waive liabilities under the federal securities laws and it is the view of the SEC that such a waiver is   against public policy.   17. Authentication   This Note shall not be valid until an authorized signatory of the Trustee (or an authenticating agent acting   on its behalf) manually signs the certificate of authentication on the other side of this Note.   18. Abbreviations   Customary abbreviations may be used in the name of a Holder or an assignee, such as TEN COM (= ten-   ants in common), TEN ENT (= tenants by the entirety), JT TEN (= joint tenants with rights of survivorship and not   as tenants in common), CUST (= custodian) and U/G/M/A (= Uniform Gift to Minors Act).   19. CUSIP and ISIN Numbers   The Company has caused CUSIP and ISIN numbers, if applicable, to be printed on the Notes and has di-   rected the Trustee to use CUSIP and ISIN numbers, if applicable, in notices of redemption or purchase as a conven-   ience to 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 or purchase and reliance may be placed only on the other identification num-   bers placed thereon.   20. Governing Law   This Note shall be governed by, and construed in accordance with, the laws of the State of New York.   The Company will furnish to any Holder upon written request and without charge to the Holder a copy of   the Indenture.  Requests may be made to:   Townsquare Media, Inc.   240 Greenwich Avenue    Greenwich, CT  06830   Facsimile:  (203) 861-0920   Attention:  Chief Financial Officer     





 







   A-9             ASSIGNMENT FORM   To assign this Note, fill in the form below:   I or we assign and transfer this Note to:       (Print or type assignee’s name, address and zip code)       (Insert assignee’s social security or tax I.D. No.)   and irrevocably appoint ___________ agent to transfer this Note on the books of the Company.  The agent may sub-   stitute another to act for him.   Date: Your Signature:      Signature Guarantee:     (Signature must be guaranteed)       Sign exactly as your name appears on the other side of this Note.   The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan   associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to   Exchange Act Rule 17Ad-15.   The undersigned hereby certifies that it  is /  is not an Affiliate of the Company and that, to its knowledge, the   proposed transferee  is /  is not an Affiliate of the Company.   In connection with any transfer or exchange of any of the Notes evidenced by this certificate occurring pri-   or to the date that is one year after the later of the date of original issuance of such Notes and the last date, if any, on   which such Notes were owned by the Company or any Affiliate of the Company, the undersigned confirms that such   Notes are being:   CHECK ONE BOX BELOW:   (1)  acquired for the undersigned’s own account, without transfer; or   (2)  transferred to the Company; or   (3)  transferred pursuant to and in compliance with Rule 144A under the Securities Act of   1933, as amended (the “Securities Act”); or   (4)  transferred pursuant to an effective registration statement under the Securities Act; or   (5)  transferred pursuant to and in compliance with Regulation S under the Securities Act; or   (6)  transferred to an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3)   or (7) under the Securities Act) or an “accredited investor” (as defined in Rule 501(a)(4)   under the Securities Act), that has furnished to the Trustee a signed letter containing cer-   tain representations and agreements (the form of which letter appears as Section 2.8 or   2.10 of the Indenture, respectively); or     





 







   A-10             (7)  transferred pursuant to another available exemption from the registration requirements of   the Securities Act of 1933, as amended.   Unless one of the boxes is checked, the Trustee 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 (5), (6) or (7) is   checked, the Company may require, prior to registering any such transfer of the Notes, in its sole discretion, such   legal opinions, certifications and other information as the Company may reasonably request 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 of 1933, as amended, such as the exemption provided by Rule 144 under such Act.         Signature   Signature Guarantee:         (Signature must be guaranteed) Signature   The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan   associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to   Exchange Act Rule 17Ad-15.   TO BE COMPLETED BY PURCHASER IF BOX (1) OR (3) 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 it and any such account is a “qualified institu-   tional buyer” within the meaning of Rule 144A under the Securities Act of 1933, as amended, 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 infor-   mation 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.         Dated:     





 







   A-11             [TO BE ATTACHED TO GLOBAL NOTES]   SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTES   The following increases or decreases in this Global Note have been made:            Date of Exchange      Amount of decrease   in Principal Amount   of this Global Note      Amount of increase   in Principal Amount   of this Global Note   Principal Amount of   this Global Note   following such de-   crease or increase   Signature of author-   ized signatory of   Trustee or Notes   Custodian               





 







   A-12             OPTION OF HOLDER TO ELECT PURCHASE   If you elect to have this Note purchased by the Company pursuant to Section 3.5 or 3.9 of the Indenture,   check either box:   Section 3.5  Section 3.9    If you want to elect to have only part of this Note purchased by the Company pursuant to Section 3.5 or 3.9   of the Indenture, state the amount in principal amount (must be in denominations of $2,000 or an integral multiple of   $1,000 in excess thereof):  $___________________________________ and specify the denomination or denomina-   tions (which shall not be less than the minimum authorized denomination) of the Notes to be issued to the Holder for   the portion of the within Note not being repurchased (in the absence of any such specification, one such Note will be   issued for the portion not being repurchased):  _________________.   Date:  __________ Your Signature ____________________________________________________   (Sign exactly as your name appears on the other side of the Note)   Signature Guarantee:  _______________________________________________________________   (Signature must be guaranteed)   The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan   associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to   Exchange Act Rule 17Ad-15.    





 







   B-1             EXHIBIT B   Form of Supplemental Indenture to Add Guarantors   SUPPLEMENTAL INDENTURE, (this “Supplemental Indenture”) dated as of [                ], by and among   the parties that are signatories hereto as Guarantors (the “Guaranteeing Subsidiary”), Townsquare Media, Inc., a   Delaware corporation (the “Company”), the other Guarantors (as defined in the Indenture referred to herein) and   Wilmington Trust, National Association, as Trustee under the Indenture referred to below.   W I T N E S S E T H:   WHEREAS, each of the Company, the Guarantors and the Trustee have heretofore executed and delivered   an indenture dated as of April 1, 2015 (as amended, supplemented, waived or otherwise modified, the “Indenture”),   providing for the issuance of an aggregate principal amount of $300.0 million of 6.500% Senior Notes due 2023 of   the Company (the “Notes”);   WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiary shall ex-   ecute and deliver to the Trustee a supplemental indenture to which the Guaranteeing Subsidiary shall unconditional-   ly guarantee, on a joint and several basis with the other Guarantors, all of the Company’s Obligations under the   Notes and the Indenture on the terms and conditions set forth herein and under the Indentures’ (the “Guarantee”);   and   WHEREAS, pursuant to Section 9.1 of the Indenture, the Company, any Guarantor and the Trustee are au-   thorized to execute and deliver a supplemental indenture to add additional Guarantors, without the consent of any   Holder;   NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the   receipt of which is hereby acknowledged, the Guaranteeing Subsidiary, the Company, the other Guarantors and the   Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:   ARTICLE I      DEFINITIONS   SECTION 1.1. Defined Terms.  As used in this Supplemental Indenture, terms defined in the Indenture   or in the preamble or recitals hereto 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 Guaranteeing Subsidiary hereby becomes a party to the In-   denture as a Guarantor and as such will have all of the rights and be subject to all of the obligations and agreements   of a Guarantor under the Indenture.   SECTION 2.2. Guarantee.  The Guaranteeing Subsidiary agrees, on a joint and several basis with all the   existing Guarantors, to fully, unconditionally and irrevocably Guarantee to each Holder of the Notes and the Trustee   the Guaranteed Obligations pursuant to Article X of the Indenture on a senior basis.     





 







   B-2             ARTICLE III      MISCELLANEOUS   SECTION 3.1. Notices.  All notices and other communications to the Guarantor shall be given as pro-   vided in the Indenture to the Guarantor, at its address set forth below, with a copy to the Company as provided in the   Indenture for notices to the Company.   [INSERT ADDRESS]   SECTION 3.2. Merger and Consolidation.  The Guaranteeing Subsidiary shall not sell or otherwise dis-   pose of all or substantially all of its assets to, or consolidate with or merge with or into another Person (other than   the Company or any Restricted Subsidiary that is a Guarantor or becomes a Guarantor concurrently with the transac-   tion) except in accordance with Section 4.1(f) of the Indenture.   SECTION 3.3. Release of Guarantee.  This Guarantee shall be released in accordance with Section 10.2   of the Indenture.   SECTION 3.4. Parties.  Nothing expressed or mentioned herein is intended or shall be construed to give   any Person, firm or corporation, other than the Holders and the Trustee, any legal or equitable right, remedy or claim   under or in respect of this Supplemental Indenture or the Indenture or any provision herein or therein contained.   SECTION 3.5. Governing Law.  This Supplemental Indenture shall be governed by, and construed in ac-   cordance with, the laws of the State of New York.   SECTION 3.6. Severability.  In case any provision in this Supplemental Indenture shall be invalid, ille-   gal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be   affected or impaired thereby and such provision shall be ineffective only to the extent of such invalidity, illegality or   unenforceability.   SECTION 3.7. Benefits Acknowledged.  The Guaranteeing Subsidiary’s Guarantee is subject to the   terms and conditions set forth in the Indenture.  The Guaranteeing Subsidiary acknowledges that it will receive di-   rect and indirect benefits from the financing arrangements contemplated by the Indenture and this Supplemental   Indenture and that the guarantee and waivers made by it pursuant to this Guarantee are knowingly made in contem-   plation of such benefits.   SECTION 3.8. Ratification of Indenture; Supplemental Indentures Part of Indenture.  Except as express-   ly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provi-   sions 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 Notes heretofore or hereafter authenticated and delivered shall be bound hereby.   SECTION 3.9. The Trustee.  The Trustee makes no representation or warranty as to the validity or suffi-   ciency of this Supplemental Indenture or with respect to the recitals contained herein, all of which recitals are made   solely by the other parties hereto.   SECTION 3.10. Counterparts.  The parties hereto may sign any number of copies of this Supplemental   Indenture.  Each signed copy shall be an original, but all of them together represent the same agreement.  The ex-   change of copies of this Supplemental Indenture and of signature pages by facsimile or PDF transmission shall con-   stitute 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 facsimi-   le or PDF shall be deemed to be their original signatures for all purposes.   SECTION 3.11. Execution and Delivery.  The Guaranteeing Subsidiary agrees that the Guarantee shall   remain in full force and effect notwithstanding any failure to endorse on each Note a notation of any such Guaran-   tee.     





 







   B-3             SECTION 3.12. 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.     





 







   [Signature Page to Supplemental Indenture]             IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed   as of the date first above written.   TOWNSQUARE MEDIA, INC.   as a Guarantor   By:       Name:      Title:   [SUBSIDIARY GUARANTOR],   as a Guarantor   By:       Name:      Title:        





 







   [Signature Page to Supplemental Indenture]             WILMINGTON TRUST, NATIONAL ASSOCIATION,    as Trustee    By:       Name:      Title: