exv4w9






Exhibit 4.9




EXECUTION COPY




 





NORTEK, INC.,




the GUARANTORS named herein




and




U.S. BANK NATIONAL ASSOCIATION,

as Trustee and Collateral Agent




 






INDENTURE




 






Dated as of May 20, 2008




 






10% Senior Secured Notes due 2013




          Reference is made to the Lien Subordination and Intercreditor Agreement dated as of May 20,
2008, among Bank of America, N.A., as collateral agent for the Revolving Facility Secured Parties
referred to therein; U.S. Bank National Association, as Trustee and as Noteholder Collateral Agent;
Nortek, Inc.; and the other subsidiaries of Nortek, Inc. named therein (the “Intercreditor
Agreement”). Each Noteholder, by its acceptance of a Note, (a) consents to the subordination of
Liens provided for in the Intercreditor Agreement, (b) agrees that it will be bound by and will
take no actions contrary to the provisions of the Intercreditor Agreement and (c) authorizes and
instructs the Trustee to enter into the Intercreditor Agreement as Trustee and on behalf of such
Noteholder. The foregoing provisions are intended as an inducement to the lenders under the Credit
Agreement to extend credit and such lenders are intended third party beneficiaries of such
provisions and the provisions of the Intercreditor Agreement.




 





 









 





CROSS-REFERENCE TABLE



	 	 	 	 	 
	TIA	 	 	 	Indenture
	Section	 	 	 	Section
	 
	310(a)(1)	 	 
	 	     7.10
	(a)(2)
	 	 
	 	      7.10
	           (a)(3)
	 	 
	 	           N.A.
	         (a)(4)
	 	 
	 	          N.A.
	             (a)(5)
	 	 
	 	        7.08; 7.10
	  (b)
	 	 
	 	          7.08; 7.10; 12.02
	  (c)
	 	 
	 	           N.A.
	311(a)	 	 
	 	      7.11
	   (b)
	 	 
	 	                7.11
	  (c)
	 	 
	 	         N.A.
	312(a)	 	 
	 	    2.06
	   (b)
	 	 
	 	        12.03
	  (c)
	 	 
	 	      12.03
	313(a)	 	 
	 	    7.06; 10.02
	  (b)(1)
	 	 
	 	    7.06; 10.02
	  (b)(2)
	 	 
	 	   7.06
	 (c)
	 	 
	 	      7.06; 12.02
	  (d)
	 	 
	 	      7.06
	314(a)	 	 
	 	           4.06; 4.17
	   (b)
	 	 
	 	      10.02
	   (c)(1)
	 	 
	 	    7.02; 12.04; 12.05
	       (c)(2)
	 	 
	 	    7.02; 12.04; 12.05
	    (c)(3)
	 	 
	 	    N.A.
	  (d)
	 	 
	 	       10.02; 10.03; 10.05
	  (e)
	 	 
	 	       12.05
	  (f)
	 	 
	 	       N.A.
	315(a)	 	 
	 	           7.01(b)
	   (b)
	 	 
	 	     7.05; 12.02
	   (c)
	 	 
	 	     7.01(a)
	  (d)
	 	 
	 	     6.05; 7.01(c)
	   (e)
	 	 
	 	    6.11
	316(a)(last sentence)	 	 
	 	            2.10
	   (a)(1)(A)
	 	 
	 	                  6.05
	  (a)(1)(B)
	 	 
	 	           6.04
	   (a)(2)
	 	 
	 	     9.02
	  (b)
	 	 
	 	           6.07
	  (c)
	 	 
	 	         9.04
	317(a)(1)	 	 
	 	           6.08
	                 (a)(2)
	 	 
	 	      6.09
	   (b)
	 	 
	 	         2.05
	318(a)	 	 
	 	       12.01








 




			
	N.A.	 	means Not Applicable
	 
	Note:	 	This Cross-Reference Table shall not, for any purpose, be
deemed to be a part of this Indenture.






 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page
	ARTICLE I

	 	 	 
	 	 	 	 
	DEFINITIONS AND INCORPORATION BY REFERENCE

	 	 	 
	 	 	 	 
	SECTION 1.01.
	 	Definitions.

	 	 	1	 
	SECTION 1.02.
	 	Other Definitions.

	 	 	32	 
	SECTION 1.03.
	 	Incorporation by Reference of TIA.

	 	 	33	 
	SECTION 1.04.
	 	Rules of Construction.

	 	 	34	 
	 	 	 
	 	 	 	 
	ARTICLE II

	 	 	 
	 	 	 	 
	THE NOTES

	 	 	 
	 	 	 	 
	SECTION 2.01.
	 	Amount of Notes.

	 	 	34	 
	SECTION 2.02.
	 	Form and Dating.

	 	 	35	 
	SECTION 2.03.
	 	Execution and Authentication.

	 	 	35	 
	SECTION 2.04.
	 	Registrar and Paying Agent.

	 	 	36	 
	SECTION 2.05.
	 	Paying Agent To Hold Assets in Trust.

	 	 	37	 
	SECTION 2.06.
	 	Holder Lists.

	 	 	37	 
	SECTION 2.07.
	 	Transfer and Exchange.

	 	 	37	 
	SECTION 2.08.
	 	Replacement Notes.

	 	 	38	 
	SECTION 2.09.
	 	Outstanding Notes.

	 	 	38	 
	SECTION 2.10.
	 	Treasury Notes.

	 	 	39	 
	SECTION 2.11.
	 	Temporary Notes.

	 	 	39	 
	SECTION 2.12.
	 	Cancellation.

	 	 	39	 
	SECTION 2.13.
	 	Defaulted Interest.

	 	 	40	 
	SECTION 2.14.
	 	CUSIP Number.

	 	 	40	 
	SECTION 2.15.
	 	Deposit of Moneys.

	 	 	40	 
	SECTION 2.16.
	 	Book-Entry Provisions for Global Notes.

	 	 	41	 
	SECTION 2.17.
	 	Special Transfer Provisions.

	 	 	43	 
	SECTION 2.18.
	 	Computation of Interest.

	 	 	45	 
	 	 	 
	 	 	 	 
	ARTICLE III

	 	 	 
	 	 	 	 
	REDEMPTION

	 	 	 
	 	 	 	 
	SECTION 3.01.
	 	Notices to Trustee.

	 	 	45	 
	SECTION 3.02.
	 	Selection of Notes To Be Redeemed.

	 	 	46	 
	SECTION 3.03.
	 	Notice of Redemption.

	 	 	46	 






-i -









 






	 	 	 	 	 	 	 
	 	 	 	 	Page
	SECTION 3.04.
	 	RESERVED.

	 	 	47	 
	SECTION 3.05.
	 	Effect of Notice of Redemption.

	 	 	47	 
	SECTION 3.06.
	 	Deposit of Redemption Price.

	 	 	47	 
	SECTION 3.07.
	 	Notes Redeemed in Part.

	 	 	48	 
	 	 	 
	 	 	 	 
	ARTICLE IV

	 	 	 
	 	 	 	 
	COVENANTS

	 	 	 
	 	 	 	 
	SECTION 4.01.
	 	Payment of Notes.

	 	 	48	 
	SECTION 4.02.
	 	Maintenance of Office or Agency.

	 	 	48	 
	SECTION 4.03.
	 	Corporate Existence.

	 	 	49	 
	SECTION 4.04.
	 	Payment of Taxes and Other Claims.

	 	 	49	 
	SECTION 4.05.
	 	Maintenance of Properties and Insurance.

	 	 	49	 
	SECTION 4.06.
	 	Compliance Certificate; Notice of Default.

	 	 	50	 
	SECTION 4.07.
	 	RESERVED

	 	 	50	 
	SECTION 4.08.
	 	Waiver of Stay, Extension or Usury Laws.

	 	 	50	 
	SECTION 4.09.
	 	Change of Control.

	 	 	50	 
	SECTION 4.10.
	 	Incurrence of Indebtedness and Issuance of Preferred Stock.

	 	 	52	 
	SECTION 4.11.
	 	Limitation on Restricted Payments.

	 	 	57	 
	SECTION 4.12.
	 	Limitation on Liens.

	 	 	62	 
	SECTION 4.13.
	 	Asset Sales.

	 	 	63	 
	SECTION 4.14.
	 	Limitation on Transactions with Affiliates.

	 	 	69	 
	SECTION 4.15.
	 	Dividend and Other Payment Restrictions Affecting Restricted
Subsidiaries.

	 	 	71	 
	SECTION 4.16.
	 	Limitations on Issuances of Guarantees of Indebtedness.

	 	 	73	 
	SECTION 4.17.
	 	Reports.

	 	 	73	 
	SECTION 4.18.
	 	Payments for Consent.

	 	 	75	 
	SECTION 4.19.
	 	RESERVED.

	 	 	75	 
	SECTION 4.20.
	 	Additional Note Guarantees and Security for the Notes.

	 	 	75	 
	SECTION 4.21.
	 	Designation of Restricted and Unrestricted Subsidiaries.

	 	 	75	 
	SECTION 4.22.
	 	Business Activities.

	 	 	76	 
	SECTION 4.23.
	 	Impairment of Security Interest.

	 	 	76	 
	SECTION 4.24.
	 	After-Acquired Property.

	 	 	76	 
	SECTION 4.25.
	 	Information Regarding Collateral.

	 	 	76	 
	SECTION 4.26.
	 	Further Assurances.

	 	 	77	 
	 	 	 
	 	 	 	 
	ARTICLE V

	 	 	 
	 	 	 	 
	SUCCESSOR CORPORATION

	 	 	 
	 	 	 	 
	SECTION 5.01.
	 	Merger, Consolidation, or Sale of Assets.

	 	 	77	 






-ii -









 






	 	 	 	 	 	 	 
	 	 	 	 	Page
	ARTICLE VI

	 	 	 
	 	 	 	 
	DEFAULT AND REMEDIES

	 	 	 
	 	 	 	 
	SECTION 6.01.
	 	Events of Default.

	 	 	79	 
	SECTION 6.02.
	 	Acceleration.

	 	 	82	 
	SECTION 6.03.
	 	Other Remedies.

	 	 	82	 
	SECTION 6.04.
	 	Waiver of Defaults.

	 	 	83	 
	SECTION 6.05.
	 	Control by Majority

	 	 	83	 
	SECTION 6.06.
	 	Limitation on Suits

	 	 	83	 
	SECTION 6.07.
	 	Rights of Holders To Receive Payment.

	 	 	84	 
	SECTION 6.08.
	 	Collection Suit by Trustee.

	 	 	84	 
	SECTION 6.09.
	 	Trustee May File Proofs of Claim.

	 	 	84	 
	SECTION 6.10.
	 	Priorities.

	 	 	85	 
	SECTION 6.11.
	 	Undertaking for Costs.

	 	 	85	 
	 	 	 
	 	 	 	 
	ARTICLE VII

	 	 	 
	 	 	 	 
	TRUSTEE

	 	 	 
	 	 	 	 
	SECTION 7.01.
	 	Duties of Trustee.

	 	 	85	 
	SECTION 7.02.
	 	Rights of Trustee.

	 	 	87	 
	SECTION 7.03.
	 	Individual Rights of Trustee.

	 	 	88	 
	SECTION 7.04.
	 	Trustee’s Disclaimer.

	 	 	88	 
	SECTION 7.05.
	 	Notice of Default.

	 	 	88	 
	SECTION 7.06.
	 	Reports by Trustee to Holders.

	 	 	89	 
	SECTION 7.07.
	 	Compensation and Indemnity.

	 	 	89	 
	SECTION 7.08.
	 	Replacement of Trustee.

	 	 	90	 
	SECTION 7.09.
	 	Successor Trustee by Merger, Etc.

	 	 	91	 
	SECTION 7.10.
	 	Eligibility; Disqualification.

	 	 	91	 
	SECTION 7.11.
	 	Preferential Collection of Claims Against the Issuer.

	 	 	92	 
	 	 	 
	 	 	 	 
	ARTICLE VIII

	 	 	 
	 	 	 	 
	DISCHARGE OF INDENTURE; DEFEASANCE

	 	 	 
	 	 	 	 
	SECTION 8.01.
	 	Termination of the Issuer’s Obligations.

	 	 	92	 
	SECTION 8.02.
	 	Legal Defeasance and Covenant Defeasance.

	 	 	93	 
	SECTION 8.03.
	 	Conditions to Legal Defeasance or Covenant Defeasance.

	 	 	95	 
	SECTION 8.04.
	 	Application of Trust Money.

	 	 	96	 
	SECTION 8.05.
	 	Repayment to the Issuer.

	 	 	96	 
	SECTION 8.06.
	 	Reinstatement.

	 	 	97	 






-iii -









 






	 	 	 	 	 	 	 
	 	 	 	 	Page
	ARTICLE IX

	 	 	 
	 	 	 	 
	AMENDMENTS, SUPPLEMENTS AND WAIVERS

	 	 	 
	 	 	 	 
	SECTION 9.01.
	 	Without Consent of Holders.

	 	 	97	 
	SECTION 9.02.
	 	With Consent of Holders.

	 	 	98	 
	SECTION 9.03.
	 	Compliance with TIA.

	 	 	100	 
	SECTION 9.04.
	 	Revocation and Effect of Consents.

	 	 	100	 
	SECTION 9.05.
	 	Notation on or Exchange of Notes.

	 	 	101	 
	SECTION 9.06.
	 	Trustee To Sign Amendments, Etc.

	 	 	101	 
	 	 	 
	 	 	 	 
	ARTICLE X

	 	 	 
	 	 	 	 
	SECURITY DOCUMENTS

	 	 	 
	 	 	 	 
	SECTION 10.01.
	 	Collateral and Security Documents.

	 	 	101	 
	SECTION 10.02.
	 	Recordings and Opinions.

	 	 	103	 
	SECTION 10.03.
	 	Release of Collateral.

	 	 	104	 
	SECTION 10.04.
	 	Permitted Releases Not To Impair Lien; Trust Indenture Act
Requirements.

	 	 	105	 
	SECTION 10.05.
	 	Certificates of the Trustee.

	 	 	105	 
	SECTION 10.06.
	 	Suits To Protect the Collateral.

	 	 	105	 
	SECTION 10.07.
	 	Authorization of Receipt of Funds by the Trustee Under the
Security Documents.

	 	 	106	 
	SECTION 10.08.
	 	Purchaser Protected.

	 	 	106	 
	SECTION 10.09.
	 	Powers Exercisable by Receiver or Trustee.

	 	 	106	 
	SECTION 10.10.
	 	Release Upon Termination of the Issuer’s Obligations.

	 	 	106	 
	SECTION 10.11.
	 	Collateral Agent.

	 	 	107	 
	SECTION 10.12.
	 	Designations.

	 	 	112	 
	ARTICLE XI

	 
	GUARANTY OF NOTES

	SECTION 11.01.
	 	Guaranty.

	 	 	112	 
	SECTION 11.02.
	 	Execution Delivery of Note Guarantee.

	 	 	114	 
	SECTION 11.03.
	 	Additional Guarantors.

	 	 	114	 
	SECTION 11.04.
	 	Release of Guarantor.

	 	 	115	 
	SECTION 11.05.
	 	Guarantors May Consolidate, etc., on Certain Terms.

	 	 	116	 






-iv -









 






	 	 	 	 	 	 	 
	 	 	 	 	Page
	ARTICLE XII

	 
	MISCELLANEOUS

	SECTION 12.01.
	 	TIA Controls.

	 	 	117	 
	SECTION 12.02.
	 	Notices.

	 	 	117	 
	SECTION 12.03.
	 	Communications by Holders with Other Holders.

	 	 	118	 
	SECTION 12.04.
	 	Certificate and Opinion as to Conditions Precedent.

	 	 	119	 
	SECTION 12.05.
	 	Statements Required in Certificate or Opinion.

	 	 	119	 
	SECTION 12.06.
	 	Rules by Trustee, Paying Agent and Registrar.

	 	 	119	 
	SECTION 12.07.
	 	Legal Holidays.

	 	 	120	 
	SECTION 12.08.
	 	Governing Law.

	 	 	120	 
	SECTION 12.09.
	 	No Adverse Interpretation of Other Agreements.

	 	 	120	 
	SECTION 12.10.
	 	No Personal Liability of Directors, Officers, Employees and
Stockholders.

	 	 	120	 
	SECTION 12.11.
	 	Successors.

	 	 	120	 
	SECTION 12.12.
	 	Duplicate Originals.

	 	 	120	 
	SECTION 12.13.
	 	Severability.

	 	 	120	 
	SECTION 12.14.
	 	Intercreditor Agreement Governs.

	 	 	121	 
	 	 	 
	 	 	 	 
	Signatures
	 	 

	 	 	S-1	 






-v -









 






	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page
	EXHIBITS
	 	 
	 
	 	 	 	 	 	 
	Exhibit A

	 	-
	 	Form of Note
	 	A-1
	Exhibit B

	 	-
	 	Form of Legend for 144A Notes and Other Notes That Are Restricted Notes
	 	B-1
	Exhibit C

	 	-
	 	Form of Legend for Regulation S Note
	 	C-1
	Exhibit D

	 	-
	 	Form of Legend for Global Note
	 	D-1
	Exhibit E

	 	-
	 	Form of Certificate To Be Delivered in Connection with Transfers to Non-QIB Accredited Investors
	 	E-1
	Exhibit F

	 	-
	 	Form of Certificate To Be Delivered in Connection with Transfers Pursuant to
Regulation S
	 	F-1
	Exhibit G

	 	-
	 	Form of Notation of Guarantee
	 	G-1
	Exhibit H

	 	-
	 	Form of Supplemental Indenture to be Delivered by Subsequent Guarantors
	 	H-1
	 
	 	 	 	 	 	 
	Note: This Table of Contents shall not, for any
purpose, be deemed to be part of this
Indenture.	 	 
	 
	 	 	 	 	 	 
	SCHEDULES
	 	 
	 
	 	 	 	 	 	 
	Schedule I

	 	-
	 	Assets Under Contract	 	 
	Schedule II

	 	-
	 	Existing Liens	 	 
	Schedule III

	 	-
	 	Mortgaged Property	 	 






-vi -









 





          INDENTURE dated as of May 20, 2008, by and among NORTEK, INC., a Delaware corporation (the
“Issuer”), as Issuer, the Guarantors party hereto and U.S. BANK NATIONAL ASSOCIATION, a national
banking association, as trustee (the “Trustee”) and collateral agent (the “Collateral Agent”).




          Each party hereto agrees as follows for the benefit of each other party and for the equal and
ratable benefit of the Holders.




ARTICLE I




DEFINITIONS AND INCORPORATION BY REFERENCE




SECTION 1.01. Definitions.




          Set forth below are certain defined terms used in this Indenture.




          “2004 Transactions” means (1) the purchase by THL Buildco, Inc. of all the outstanding Capital
Stock of Nortek Holdings, Inc., (2) the merger of THL Buildco, Inc. with and into Nortek Holdings,
Inc. with Nortek Holdings, Inc. continuing as the surviving corporation, and the subsequent merger
of Nortek Holdings, Inc. with and into the Issuer, with the Issuer continuing as the surviving
corporation, (3) the tender offers to purchase for cash all of Nortek Holdings, Inc.’s outstanding
10% senior discount notes due 2011, the Issuer’s outstanding senior floating rate notes due 2010
and the Issuer’s outstanding 97/8% senior subordinated notes due 2011, (4) the repurchase or
rollover of management stock options and severance, transaction bonuses and change of control
payments to management, and all related transactions.




          “81/2% Notes Indenture” means the Indenture dated as of August 27, 2004 among THL Buildco, Inc.,
the guarantors from time to time party thereto and U.S. Bank National Association, relating to the
81/2% Senior Subordinated Notes due 2014.




          “ABL Collateral” means “Revolving Facility First Lien Collateral” as defined in the
Intercreditor Agreement as of the Issue Date.




          “Acquired Debt” means, with respect to any specified Person: (1) Indebtedness of any other
Person existing at the time such other Person is merged with or into or became a Subsidiary of such
specified Person, whether or not such Indebtedness is incurred in connection with, or in
contemplation of, such other Person merging with or into, or becoming a Subsidiary of, such
specified Person; and (2) Indebtedness secured by a Lien encumbering any asset acquired by such
specified Person.




          “Additional Interest” means all Additional Interest then owing pursuant to the Registration
Rights Agreement.




          “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
purposes of this definition, “control,” as used with respect to any Person, shall mean the
possession, directly or indirectly, of the power to direct or cause the direction of the management
and policies of such Person, whether through the ownership of voting securities, by agreement or
otherwise. For purposes of this definition, the terms “controlling,” “controlled by” and “under
common control with” shall have correlative meanings.




          “After-Acquired Property” means any property of the Issuer or any Guarantor acquired after the
Issue Date that secures the obligations under the Indenture, the Notes, the Security Documents and
Other Pari Passu Lien Obligations.




          “Agent” means any Registrar, Paying Agent or co-Registrar.




          “amend” means amend, modify, supplement, restate or amend and restate, including successively;
and “amending” and “amended” have correlative meanings.




          “asset” means any asset or property, whether real, personal or other, tangible or intangible.




          “Asset Acquisition” means (a) an Investment by the Issuer or any of its Restricted
Subsidiaries in any other Person if, as a result of such Investment, such Person shall become a
Restricted Subsidiary of the Issuer, or shall be merged with or into the Issuer or any Restricted
Subsidiary of the Issuer, or (b) the acquisition by the Issuer or any Restricted Subsidiary of the
Issuer of all or substantially all of the assets of any other Person or any division or line of
business of any other Person.




          “Asset Sale” means: (1) the sale, lease, conveyance or other disposition of any assets or
rights of the Issuer or any Restricted Subsidiary; provided that the sale, conveyance or other
disposition of all or substantially all of the assets of the Issuer and its Restricted Subsidiaries
taken as a whole will be governed by Section 4.09 and/or Section 5.01 and not by Section 4.13; and
(2) the issuance or sale of Equity Interests in or by any of the Issuer’s Restricted Subsidiaries
(other than director’s qualifying shares or shares required by applicable law to be held by Persons
other than the Issuer or a Restricted Subsidiary).




          Notwithstanding the preceding, the following items shall not be deemed to be Asset Sales:





     (1) any single transaction or series of related transactions that involves assets
having a fair market value of less than $5.0 million;




     (2) a transfer of assets (i) between or among the Issuer and the Guarantors or
(ii) between or among Foreign Restricted Subsidiaries;




     (3) an issuance of Equity Interests by a Restricted Subsidiary that is a Guarantor to
the Issuer or to another Restricted Subsidiary that is a Guarantor;



-2-









 






     (4) the sale, lease, sublease, license, sublicense or consignment of equipment,
inventory or other assets in the ordinary course of business;




     (5) the sale or other disposition of cash or Cash Equivalents;




     (6) a Restricted Payment or Permitted Investment that is permitted under Section 4.11;




     (7) the licensing of intellectual property to third Persons on customary terms as
determined by the Board of Directors in good faith;




     (8) any sale of accounts receivable, or participations therein, in connection with any
Qualified Receivables Transaction;




     (9) any sale or disposition of any property or equipment that has become damaged,
worn-out, obsolete, condemned, given over in lieu of deed or otherwise unsuitable or not
required for the ordinary course of the business of the Issuer and its Restricted
Subsidiaries;




     (10) any sale of Equity Interests in, or Indebtedness or other securities of, an
Unrestricted Subsidiary;




     (11) any foreclosures of assets;




     (12) any disposition of an account receivable in connection with the collection or
compromise thereof; and




     (13) any assets under a contract for sale on the Issue Date which are included on
Schedule I hereto and sold by December 31, 2008.




    “Asset Sale Proceeds Account” shall mean one or more deposit accounts or securities
accounts holding only the proceeds of any sale or disposition of any Notes Collateral.



          “Attributable Debt” in respect of a sale and leaseback transaction means, at the time of
determination, the present value of the obligation of the lessee for net rental payments during the
remaining term of the lease included in such sale and leaseback transaction, including any period
for which such lease has been extended or may, at the option of the lessor, be extended. Such
present value shall be calculated using a discount rate equal to the rate of interest implicit in
such transaction, determined in accordance with GAAP.




          “Bank Collateral Agent” means Bank of America, N.A. and any successor under the Credit
Agreement, or if there is no Credit Agreement, the “Bank Collateral Agent” designated pursuant to
the terms of the Lenders Debt.




-3-









 








          “Bank Lenders” means the lenders or holders of Indebtedness issued under the Credit Agreement.




          “Bankruptcy Law” means Title 11, U.S. Code or any similar Federal, state or foreign law for
the relief of debtors.




          “Beneficial Owner” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under
the Exchange Act, except that in calculating the beneficial ownership of any particular “person”
(as that term is used in Section 13(d)(3) of the Exchange Act), such “person” shall be deemed to
have beneficial ownership of all securities that such “person” has the right to acquire by
conversion or exercise of other securities, whether such right is currently exercisable or is
exercisable only upon the occurrence of a subsequent condition. The terms “Beneficially Owns” and
“Beneficially Owned” shall have a corresponding meaning.




          “Board of Directors” means: (1) with respect to a corporation, the board of directors of the
corporation or a committee thereof authorized to exercise the power of the board of directors of
such corporation; (2) with respect to a partnership, the Board of Directors of the general partner
of the partnership; and (3) with respect to any other Person, the board or committee of such Person
serving a similar function.




          “Board Resolution” means, with respect to any Person, a copy of a resolution certified by the
Secretary or an Assistant Secretary of such 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.




          “Borrowing Base” means, as of any date, an amount equal to:





     (1) 90% of the value of all accounts receivable owned by the Issuer and its Restricted
Subsidiaries as of the end of the most recent fiscal quarter preceding such date; plus




     (2) 90% of the value of all inventory owned by the Issuer and its Restricted
Subsidiaries as of the end of the most recent fiscal quarter preceding such date; plus




     (3) 100% of the unrestricted cash and Cash Equivalents of the Issuer and its Restricted
Subsidiaries as of the end of the most recent fiscal quarter preceding such date;


all calculated on a consolidated basis and in accordance with GAAP.




          “Business Day” means any day other than a Saturday, Sunday or any other day on which banking
institutions in the City of New York are required or authorized by law or other governmental action
to be closed.




-4-









 






          “Capital Lease Obligation” means, at the time any determination thereof is to be made, the
amount of the liability in respect of a capital lease that would at that time be required to be
capitalized on a balance sheet in accordance with GAAP.




          “Capital Stock” means: (1) in the case of a corporation, corporate stock; (2) in the case of
an association or business entity, any and all shares, interests, participations, rights or other
equivalents (however designated) of corporate stock; (3) in the case of a partnership or limited
liability company, partnership or membership interests (whether general or limited); and (4) any
other interest or participation that confers on a Person the right to receive a share of the
profits and losses of, or distributions of assets of, the issuing Person.




          “Cash Equivalents” means: (1) United States dollars or, in the case of any Foreign Restricted
Subsidiary, such local currencies held by it from time to time in the ordinary course of business;
(2) securities issued or directly and fully guaranteed or insured by the United States government
or any agency or instrumentality of the United States, Canada or any member nation of the European
Union having maturities of not more than 360 days from the date of acquisition; (3) certificates of
deposit, time deposits and eurodollar time deposits with maturities of twelve months or less from
the date of acquisition, bankers’ acceptances with maturities not exceeding six months and
overnight bank deposits, in each case, with any domestic commercial bank having capital and surplus
in excess of $500.0 million; (4) repurchase obligations for underlying securities of the types
described in clauses (2) and (3) above entered into with any financial institution meeting the
qualifications specified in clause (3) above; (5) commercial paper having the rating of P-1 or
better from Moody’s or A-1 or better from S&P and in each case maturing within twelve months after
the date of acquisition; (6) readily marketable direct obligations issued by any state of the
United States or any political subdivision thereof having one of the two highest rating categories
from either Moody’s or S&P with maturities of twelve months or less from the date of acquisition;
(7) instruments equivalent to those referred to in clauses (1) to (6) above denominated in euro or
any other foreign currency comparable in credit quality and tenor to those referred to above and
customarily used by corporations for cash management purposes in any jurisdiction outside the
United States to the extent reasonably required in connection with any business conducted by any
Restricted Subsidiary organized in such jurisdiction; and (8) Investments in funds which invest
substantially all of their assets in Cash Equivalents of the kinds described in clauses (1) through
(7) of this definition.




          “Change of Control” means the occurrence of any of the following:





     (1) the direct or indirect sale, transfer, conveyance or other disposition (other than
by way of merger or consolidation), in one or a series of related transactions, of all or
substantially all of the properties or assets of the Issuer and its Restricted Subsidiaries,
taken as a whole, to any “person” (as that term is used in Section 13(d)(3) of the
Exchange Act) other than the Principals or Related Parties of the Principals;



-5-









 






     
(2) the adoption of a plan relating to the liquidation or dissolution of the Issuer or
the direct parent company of the Issuer;




     (3)
the consummation of any transaction (including, without limitation, any merger or
consolidation) the result of which is that any “person” or “group” (as such terms are used
in Sections 13(d) and 14(d) of the Exchange Act), other than the Principals and their
Related Parties, becomes the Beneficial Owner, directly or indirectly, of more than 50% of
the voting power of the Voting Stock of the Issuer, Holdings or Superholdings, as the case
may be;




     (4)
the first day on which a majority of the members of the Board of Directors of
Holdings, Superholdings or the Issuer are not Continuing Directors; or




     (5)
Holdings, Superholdings or the Issuer consolidates with, or merges with or into,
any Person, or any Person consolidates with, or merges with or into, Holdings, Superholdings
or the Issuer, in any such event pursuant to a transaction in which any of the outstanding
Voting Stock of Holdings, Superholdings, the Issuer or such other Person is converted into
or exchanged for cash, securities or other property, other than any such transaction where
(A) the Voting Stock of Holdings, Superholdings or the Issuer outstanding immediately prior
to such transaction is converted into or exchanged for Voting Stock (other than Disqualified
Stock) of the surviving or transferee Person constituting a majority of the outstanding
            shares of such Voting Stock of such surviving or transferee Person (immediately after giving
effect to such issuance) and (B) immediately after such transaction, no “person” or “group”
(as such terms are used in Sections 13(d) and 14(d) of the Exchange Act), other than the
Principals and their Related Parties, becomes the Beneficial Owner, directly or indirectly,
of more than 50% of the voting power of the Voting Stock of the surviving or transferee
person.



          “Code” means the United States Internal Revenue Code of 1986, as amended from time to time,
and the regulations promulgated and rulings issued thereunder. Section references to the Code are
to the Code as in effect on the Issue Date and any subsequent provisions of the Code amendatory
thereof, supplemental thereto or substituted therefor.




          “Collateral” means all the assets and properties subject to the Liens created by the Security
Documents.




          “Collateral Agent” means U.S. Bank National Association, in its capacity as collateral agent
hereunder and under the Security Documents, and any successor thereto in such capacity.




          “Commission” means the Securities and Exchange Commission.




          “Consolidated Cash Flow” means, with respect to any specified Person for any period, the
Consolidated Net Income of such Person for such period and, without duplication,



-6-









 






plus:
(1) provision for taxes based on income or profits of such Person and its Restricted Subsidiaries
for such period, to the extent that such provision for taxes was deducted in computing such
Consolidated Net Income; plus (2) consolidated interest expense of such Person and its Restricted
Subsidiaries for such period, whether or not paid or accrued and whether or not capitalized
(including, without limitation, amortization of debt issuance costs and original issue discount,
non-cash interest payments, the interest component of any deferred payment obligations, the
interest component of all payments associated with Capital Lease Obligations, imputed interest with
respect to Attributable Debt, commissions, discounts and other fees and charges incurred in respect
of letter of credit or bankers’ acceptance financings, and net of the effect of all payments made
or received pursuant to Hedging Obligations), to the extent that any such expense was deducted in
computing such Consolidated Net Income; plus (3) depreciation, amortization (including amortization
of the step-up in inventory valuation arising from purchase accounting and other intangibles) and
other non-cash expenses (excluding any such non-cash expense to the extent that it represents an
accrual of or reserve for cash expenses in any future period or amortization of a prepaid cash
expense that was paid in a prior period) of such Person and its Restricted Subsidiaries for such
period to the extent that such depreciation, amortization and other non-cash expenses were deducted
in computing such Consolidated Net Income; plus (4) any management fees paid by the Issuer to
Thomas H. Lee Partners, L.P. or its Affiliates, in such period pursuant to management agreements to
the extent that any such management fees were deducted in computing such Consolidated Net Income;
provided that the maximum aggregate amount of such management fees in any 12-month period payable
to Thomas H. Lee Partners, L.P. or its Affiliates shall not exceed the amount described in the
Issuer’s Annual Report on Form 10-K for the fiscal year ended December 31, 2007; plus (5) any
reasonable expenses, fees or charges related to the Transactions or any acquisition or Investment,
in each case to the extent that any such expenses, fees or charges were deducted in computing such
Consolidated Net Income; plus (6) other non-recurring cash charges not to exceed in the aggregate
$3.0 million in any fiscal year; minus (7) non-cash items increasing such Consolidated Net Income
for such period, excluding any items which represent the reversal of any accrual of, or cash
reserve for, anticipated cash charges in any period.




          Notwithstanding the preceding, the provision for taxes based on the income or profits of, and
the depreciation and amortization and other non-cash expenses of, a Restricted Subsidiary of the
Issuer shall be added to Consolidated Net Income to compute Consolidated Cash Flow of the Issuer
only to the extent that a corresponding amount would be permitted at the date of determination to
be dividended to the Issuer by such Restricted Subsidiary without prior governmental approval (that
has not been obtained), and without direct or indirect restriction pursuant to the terms of its
charter and all agreements, instruments, judgments, decrees, orders, statutes, rules and
governmental regulations applicable to that Restricted Subsidiary or its stockholders.




          “Consolidated Net Income” means, with respect to any specified Person for any period, the
aggregate of the Net Income of such Person and its Subsidiaries for such period, on a consolidated
basis, determined in accordance with GAAP; provided that:




-7-









 









     (1) the Net Income of any Person that is not a Restricted Subsidiary, or that is
accounted for by the equity method of accounting shall be excluded; provided that, to the
extent not previously included, Consolidated Net Income shall be increased by the amount of
dividends or distributions paid in cash to the specified Person or a Restricted Subsidiary
thereof;




     (2) the Net Income of any Restricted Subsidiary shall be excluded to the extent that
the declaration or payment of dividends or similar distributions by that Restricted
Subsidiary of that Net Income is not at the date of determination permitted without any
prior governmental approval (that has not been obtained) or, directly or indirectly, by
operation of the terms of its charter or any agreement, instrument, judgment, decree, order,
statute, rule or governmental regulation applicable to that Restricted Subsidiary or its
stockholders, unless such restriction with respect to the payment of dividends or similar
distributions has been legally waived; provided that Consolidated Net Income of such Person
shall be increased by the amount of dividends or distributions or other payments that are
actually paid in cash (or to the extent converted into cash) to such Person or a Restricted
Subsidiary thereof (subject to provisions of this clause (2)) during such period, to the
extent not previously included therein;




     (3) the Net Income (or loss) of any Person acquired in a pooling of interests
transaction for any period prior to the date of such acquisition shall be excluded;




     (4) the cumulative effect of a change in accounting principles shall be excluded;




     (5) non-cash charges relating to employee benefit or other management compensation
plans of any Parent (to the extent such non-cash charges relate to plans of any Parent for
the benefit of members of the Board of Directors of the Issuer (in their capacity as such)
or employees of the Issuer and its Restricted Subsidiaries), the Issuer or any of its
Restricted Subsidiaries or any non-cash compensation charge arising from any grant of stock,
stock options or other equity-based awards of any Parent (to the extent such non-cash
charges relate to plans of any Parent for the benefit of members of the Board of Directors
of the Issuer (in their capacity as such) or employees of the Issuer and its Restricted
Subsidiaries), the Issuer or any of its Restricted Subsidiaries (excluding in each case any
non-cash charge to the extent that it represents an accrual of or reserve for cash expenses
in any future period or amortization of a prepaid cash expense incurred in a prior period)
in each case, to the extent that such non-cash charges are deducted in computing such
Consolidated Net Income shall be excluded;




     (6) any non-cash goodwill or other impairment charges resulting from the application of
Statement of Financial Accounting Standards No. 142 or Statement of Financial Accounting
Standards No. 144, and non-cash charges relating to the



-8-









 







amortization of intangibles
resulting from the application of Statement of Financial Accounting Standards No. 141, shall
be excluded;




     (7) any increase in cost of sales as a result of the step-up in inventory valuation
arising from applying the purchase method of accounting in accordance with GAAP in
connection with any acquisition consummated after the date of this Indenture, net of taxes,
shall be excluded;




     (8) unrealized gains and losses relating to hedging transactions and mark-to-market of
Indebtedness denominated in foreign currencies resulting from the application of Statement
of Financial Accounting Standards No. 52 shall be excluded; and




     (9) all restructuring charges, including severance, relocation and transition costs,
shall be excluded.



          “Consolidated Secured Debt Ratio” means, as of any date of determination, the ratio of (a)
consolidated total Indebtedness of the Issuer and its Restricted Subsidiaries on the date of
determination that constitutes the Notes, any Other Pari Passu Lien Obligations or any Lenders Debt
to (b) the aggregate amount of Consolidated Cash Flow for the then most recent four fiscal quarters
for which internal financial statements of the Issuer and its Restricted Subsidiaries are available
in each case with such pro forma adjustments to such consolidated total Indebtedness and
Consolidated Cash Flow as are consistent with the pro forma adjustment provisions set forth in the
definition of Fixed Charge Coverage Ratio.




          “Consolidated Tangible Assets” means, with respect to any Person, the consolidated total
assets of such Person and its Restricted Subsidiaries determined in accordance with GAAP, less all
goodwill, trade names, trademarks, patents and other similar intangibles properly classified as
intangibles in accordance with GAAP, all as shown on the most recent balance sheet for such Person.




          “Continuing Directors” means, as of any date of determination, any member of the Board of
Directors of the Issuer or any Parent, as the case may be, who: (1) was a member of such Board of
Directors on the date of this Indenture; (2) was nominated for election or elected to such Board of
Directors with the approval of a majority of the Continuing Directors who were members of such
Board at the time of such nomination or election; or (3) was designated or appointed by the
Principals and the Related Parties of the Principals.




          “Corporate Trust Office” means the corporate trust office of the Trustee located at One
Federal Street, 3rd Floor, Boston, Massachusetts 02110, Attention: Corporate Trust
Services, or such other office, designated by the Trustee by written notice to the Issuer, at
which at any particular time its corporate trust business and this Indenture shall be administered.




          “Credit Agreement” means the Credit Agreement among the Issuer, certain Subsidiaries of the
Issuer, the financial institutions from time to time party thereto, and Bank of



-9-









 






America, N.A., as
administrative agent and collateral agent, dated as of the Issue Date, including any related notes,
guarantees, collateral documents, instruments and agreements executed in connection therewith, and
in each case as amended, modified, renewed, refunded, replaced, restated, substituted or refinanced
in whole or in part from time to time, including any agreement extending the maturity of,
refinancing, replacing or otherwise restructuring (including increasing the amount of available
borrowings thereunder or adding Subsidiaries of the Issuer as additional borrowers or guarantors
thereunder) all or any portion of the Indebtedness under such agreement or any successor or
replacement agreement and whether by the same or any other agent, lender or group of lenders.




          “Credit Facilities” means one or more debt facilities (including, without limitation, the
Credit Agreement), commercial paper facilities or indentures, in each case with banks or other
institutional lenders or a trustee providing for revolving credit loans, term loans, receivables
financing (including through the sale of receivables to such lenders or to special purpose entities
formed to borrow from such lenders against such receivables), letters of credit or issuances of
notes, in each case as amended, modified, renewed, refunded, replaced, restated, substituted or
refinanced in whole or in part from time to time.




          “Custodian” means any receiver, trustee, assignee, liquidator, sequestrator or similar
official under any Bankruptcy 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.




          “Depositary” shall mean The Depository Trust Company, New York, New York, or a successor
thereto registered under the Exchange Act or other applicable statute or regulation.




          “Designated Noncash Consideration” means the fair market value of noncash consideration
received by the Issuer or any of its Restricted Subsidiaries in connection with an Asset Sale that
is so designated as Designated Noncash Consideration pursuant to an Officers’ Certificate setting
forth the basis of such valuation, less the amount of cash or Cash Equivalents received in
connection with a subsequent sale of such Designated Noncash Consideration.




          “Designated Offering” means an Equity Offering.




          “Disqualified Stock” means any Capital Stock that, by its terms (or by the terms of any
security into which it is convertible, or for which it is exchangeable, in each case at the option
of the holder thereof), or upon the happening of any event, matures or is mandatorily redeemable,
pursuant to a sinking fund obligation or otherwise, or redeemable at the option of
the holder thereof, in whole or in part, on or prior to the date that is 91 days after the
date on which the Notes mature; provided that if such Capital Stock is issued to any employee or to
any plan for the benefit of employees of the Issuer or any of its Restricted Subsidiaries or by any
such plan to such employees, such Capital Stock shall not constitute Disqualified Stock solely



-10-









 






because it may be required to be repurchased by the Issuer or such Restricted Subsidiary in order
to satisfy applicable statutory or regulatory obligations; and provided further that any Capital
Stock that would constitute Disqualified Stock solely because the holders thereof have the right to
require the Issuer to repurchase such Capital Stock upon the occurrence of a change of control or
an asset sale shall not constitute Disqualified Stock if the terms of such Capital Stock provided
that the Issuer may not repurchase or redeem any such Capital Stock pursuant to such provisions
unless such repurchase or redemption complies with Section 4.11.




          “Domestic Subsidiary” means any Restricted Subsidiary that was formed under the laws of the
United States or any state thereof or the District of Columbia.




          “Equity Interests” means Capital Stock and all warrants, options or other rights to acquire
Capital Stock (but excluding any debt security that is convertible into, or exchangeable for,
Capital Stock).




          “Equity Offering” means an offering (including in a private placement) of the Equity Interests
(other than Disqualified Stock) of the Issuer or any Parent, other than public offerings with
respect to the Equity Interests registered on Form S-8.




          “Equity Sponsor” means Thomas H. Lee Partners, L.P., a Delaware limited partnership.




          “Excluded Assets” means the collective reference to (i) all interests in real property other
than fee interests, (ii) any fee interest in real property (other than certain real property owned
by the Issuer or the Guarantors set forth on Schedule III hereto) if the greater of the cost and
the book value of such fee interest is less than $2.50 million; (iii) any property or asset to the
extent that the grant of a security interest in such property or asset is prohibited by any
applicable law or requires a consent not obtained of any governmental authority pursuant to
applicable law; (iv) those assets that would constitute ABL Collateral but as to which the Bank
Collateral Agent shall not have required a lien or security interest; (v) any right, title or
interest in any permit, lease, license, contract or agreement held by any Grantor or to which any
Grantor is a party or any of its right, title or interest thereunder to the extent, but only to the
extent, that such a grant would, under the terms of such permit, lease, license, contract or
agreement, result in a breach of the terms of, or constitute a default under, any permit, lease,
license, contract or agreement held by such Grantor or to which such Grantor is a party (other than
to the extent that any such term would be rendered ineffective pursuant to Section 9-406, 9-407,
9-408 or 9-409 of the Uniform Commercial Code (or any successor provisions) of any relevant
jurisdiction or any other applicable law (including Title 11 of the United States Code) or
principles of equity); provided, that immediately upon the ineffectiveness, lapse or termination of
any such provision,
such right, title or interest in such permit, lease, license, contract or agreement shall
cease to be an “Excluded Asset”; (vi) Capital Stock of a Person that constitutes a Subsidiary
(other than a Wholly Owned Subsidiary) the pledge of which would violate a contractual obligation
to the owners of the other Capital Stock of such Person that is binding on or relating to such
Capital



-11-









 






Stock; (vii) any Equipment of the Issuer or any Restricted Subsidiary that is subject to a
purchase money lien or capital lease permitted under the Indenture to the extent the documents
relating to such purchase money lien or capital lease would not permit such Equipment to be subject
to the Liens created under the Security Documents; provided, that immediately upon the
ineffectiveness, lapse or termination of any such restriction, such Equipment shall cease to be an
“Excluded Asset”; (viii) any motor vehicles; (ix) the real property located at 1620 Mid-American
Industrial Court, Boonville, Missouri (only for so long as Liens permitted under the Indenture
prohibit Liens securing the Notes on such real property), and (x) the real property located at 4820
Red Bank Road, Cincinnati, Ohio until December 31, 2008; provided, however, that Excluded Assets
will not include (i) any proceeds, substitutions or replacements of any Excluded Assets referred to
in clause (iii) (unless such proceeds, substitutions or replacements would constitute Excluded
Assets referred to in clause (iii)), or (ii) any asset which secures obligations with respect to
the Lenders Debt (other than collateral described in Section 10.01). Capitalized terms used in the
definition and not otherwise defined shall have the meaning assigned them in the Uniform Commercial
Code.




          “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission promulgated thereunder.




          “Exchange Notes” means the 10% Senior Secured Notes due 2013 to be issued pursuant to this
Indenture in connection with (i) a registration pursuant to the Registration Rights Agreement or
(ii) the issuance of Additional Notes issued in accordance with Section 2.01 or any registration of
such Additional Notes pursuant to a registration rights agreement.




          “Excluded Contributions” means the net cash proceeds received by the Issuer after the date of
the 81/2% Notes Indenture from (a) contributions to its common equity capital and (b) the sale (other
than to a Subsidiary or to any management equity plan or stock option plan or any other management
or employee benefit plan or agreement of the Issuer or any of its Subsidiaries) of Capital Stock
(other than Disqualified Stock) of the Issuer, in each case designated within 60 days of the
receipt of such net cash proceeds as Excluded Contributions pursuant to an Officers’ Certificate,
the cash proceeds of which are excluded from the calculation set forth in Section 4.11(a)(3).




          “Existing Credit Agreement” means the Credit Agreement dated August 27, 2004 among the Issuer,
Holdings, UBS AG, Stamford Branch, UBS AG Canada Branch, Bank of America N.A., Bank of America N.A.
(Canada Branch), and certain other lenders party thereto.




          “Existing Indebtedness” means Indebtedness outstanding on the date of this Indenture, other
than under the Credit Agreement and this Indenture.




          “Fixed Charge Coverage Ratio” means with respect to any specified Person for any period, the
ratio of the Consolidated Cash Flow of such Person for such period to the Fixed Charges of such
Person for such period. In the event that the specified Person or any of its



-12-









 






Restricted
Subsidiaries incurs, assumes, Guarantees, repays, repurchases or redeems any Indebtedness or
issues, repurchases or redeems Disqualified Stock or preferred stock subsequent to the commencement
of the period for which the Fixed Charge Coverage Ratio is being calculated and on or prior to the
date on which the event for which the calculation of the Fixed Charge Coverage Ratio is made (the
“Calculation Date”), then the Fixed Charge Coverage Ratio shall be calculated giving pro forma
effect to such incurrence, assumption, Guarantee, repayment, repurchase, or redemption of
Indebtedness, or such issuance, repurchase or redemption of Disqualified Stock or preferred stock
and the use of the proceeds therefrom as if the same had occurred at the beginning of the
applicable four-quarter reference period.




          In addition, for purposes of calculating the Fixed Charge Coverage Ratio:





     (1) the Investments, acquisitions, dispositions, mergers, consolidations and
discontinued operations (as determined in accordance with GAAP) that have been made by the
Issuer or any Restricted Subsidiary of the Issuer during the four-quarter reference period
or subsequent to such reference period and on or prior to or simultaneously with the
Calculation Date shall be calculated on a pro forma basis including Pro Forma Cost Savings
assuming that the Transactions and all such Investments, acquisitions, dispositions,
mergers, consolidations and discontinued operations (and the change in any associated fixed
charge obligations and the change in EBITDA resulting therefrom) had occurred on the first
day of the four-quarter reference period. If since the beginning of such period any Person
(that subsequently became a Restricted Subsidiary of the Issuer or was merged with or into
the Issuer or any Restricted Subsidiary of the Issuer since the beginning of such period)
shall have made any Investment, acquisition, disposition, merger, consolidation or
discontinued operation that would have required adjustment pursuant to this definition, then
the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect thereto for such
period as if such Investment, acquisition, disposition, merger, consolidation or
discontinued operation had occurred at the beginning of the applicable four-quarter period;
and




     (2) in calculating Fixed Charges attributable to interest on any Indebtedness computed
on a pro forma basis, (a) interest on outstanding Indebtedness determined on a fluctuating
basis as of the Calculation Date and which will continue to be so determined thereafter
shall be deemed to have accrued at a fixed rate per annum equal to the rate of interest on
such Indebtedness in effect on the Calculation Date; (b) if interest on any Indebtedness
actually incurred on the Calculation Date may optionally be determined at an interest rate
based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or
other rates, then the interest rate in effect on the Calculation Date will be deemed to have
been in effect during the four-quarter period; and (c) notwithstanding clause (a) above,
interest on Indebtedness determined on a fluctuating basis, to the extent
such interest is covered by agreements relating to interest rate swaps, caps or
collars, shall be deemed to accrue at the rate per annum resulting after giving effect to
the operation of such agreement.



-13-









 





          “Fixed Charges” means, with respect to any specified Person for any period, the sum, without
duplication of: (1) the consolidated interest expense of such Person and its Restricted
Subsidiaries for such period, whether paid or accrued, including, without limitation, amortization
of debt issuance costs and original issue discount, noncash interest payments (other than the
amortization of discount or imputed interest arising as a result of purchase accounting), the
interest component of any deferred payment obligations, the interest component of all payments
associated with Capital Lease Obligations, imputed interest with respect to Attributable Debt,
commissions, discounts and other fees and charges incurred in respect of letter of credit or
bankers’ acceptance financings, and net of the effect of all payments made or received pursuant to
Hedging Obligations; plus (2) the consolidated interest of such Person and its Restricted
Subsidiaries that was capitalized during such period; plus (3) any interest expense on Indebtedness
of another Person that is Guaranteed by such Person or one of its Restricted Subsidiaries or
secured by a Lien on assets of such Person or one of its Restricted Subsidiaries, whether or not
such Guarantee or Lien is called upon; plus (4) the product of (a) all dividends and distributions,
whether paid or accrued and whether or not in cash, on any series of preferred stock or
Disqualified Stock of such Person or any of its Restricted Subsidiaries, other than dividends on
Equity Interests payable solely in Equity Interests of the Issuer (other than Disqualified Stock)
or to the Issuer or a Restricted Subsidiary that is a Guarantor, times (b) a fraction, the
numerator of which is one and the denominator of which is one minus the then current combined
federal, state and local statutory tax rate of such Person, expressed as a decimal, in each case,
on a consolidated basis and in accordance with GAAP; minus (5) the amortization or expensing of
financing fees incurred by the Issuer and its Restricted Subsidiaries in connection with the
Transactions and recognized in the applicable period; minus (6) interest income actually received
by the Issuer or any Restricted Subsidiary in cash for such period.




          “Foreign Restricted Subsidiary” means any Restricted Subsidiary of the Issuer organized in any
jurisdiction outside the United States.




          “GAAP” means generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as have been approved by a significant segment of the
accounting profession, which are in effect on the date of this Indenture.




          “Government Securities” means direct obligations of, or obligations Guaranteed by, the United
States of America for the payment of which obligations or guaranty the full faith and credit of the
United States is pledged.




          “Grantors” means the Issuer and the Guarantors.




          “Guarantee” means a guarantee other than by endorsement of negotiable instruments for
collection in the ordinary course of business, direct or indirect, in any manner including, without
limitation, by way of a pledge of assets or through letters of credit or



-14-









 






reimbursement agreements
in respect thereof, of all or any part of any Indebtedness, and the term “Guaranteed” shall have a
correlative meaning.




          “Guarantor” means any Person that incurs a Guarantee of the Notes; provided that, upon the
release and discharge of such Person from its Note Guarantee in accordance with this Indenture,
such Person shall cease to be a Guarantor.




          “Hedging Obligations” means, with respect to any specified Person, the obligations of such
Person under:





     (1) interest rate swap agreements, interest rate cap agreements, interest rate collar
agreements and other agreements or arrangements designed for the purpose of fixing, hedging
or swapping interest rate risk;




     (2) commodity swap agreements, commodity option agreements, forward contracts and other
agreements or arrangements designed for the purpose of fixing, hedging or swapping commodity
price risk; and




     (3) foreign exchange contracts, currency swap agreements and other agreements or
arrangements designed for the purpose of fixing, hedging or swapping foreign currency
exchange rate risk.



          “Holder” or “Noteholder” means the registered holder of any Note.




          “Holdings” means Nortek Holdings, Inc., a Delaware corporation, and its successors.




          “Immaterial Subsidiary” means any Subsidiary of the Issuer that has less than $100,000 in
total assets.




          “Indebtedness” means, with respect to any specified Person, any indebtedness of such Person,
whether or not contingent, in respect of:





     (1) borrowed money;




     (2) obligations evidenced by bonds, notes, debentures or similar instruments or letters
of credit (or reimbursement agreements in respect thereof);




     (3) banker’s acceptances;




     (4) Capital Lease Obligations;




     (5) the balance deferred and unpaid of the purchase price of any property, except any
such balance that constitutes an accrued expense or trade payable; or



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     (6) representing any Hedging Obligations,


if and to the extent any of the preceding items (other than letters of credit and Hedging
Obligations) would appear as a liability upon a balance sheet of the specified Person prepared in
accordance with GAAP. In addition, the term “Indebtedness” includes all Indebtedness of others
secured by a Lien on any asset of the specified Person (whether or not such Indebtedness is assumed
by the specified Person), to the extent not otherwise included, the Guarantee by the specified
Person of any obligations constituting Indebtedness and Indebtedness of any partnership in which
such Person is a general partner.




          The amount of any Indebtedness outstanding as of any date shall be:





     (1) the accreted value thereof, in the case of any Indebtedness issued with original
issue discount;




     (2) the principal amount thereof, together with any interest thereon that is more than
30 days past due, in the case of any other Indebtedness; and




     (3) with respect to Indebtedness of another Person secured by a Lien on the assets of
the Issuer or any of its Restricted Subsidiaries, the lesser of the fair market value of the
property secured or the amount of the secured Indebtedness.



          “Indenture” means this Indenture, as amended, restated or supplemented from time to time in
accordance with the terms hereof.




          “Initial Purchasers” means Credit Suisse Securities (USA) LLC, Banc of America Securities LLC,
Goldman, Sachs & Co., and UBS Securities LLC.




          “Intercreditor Agreement” means the Lien Subordination and Intercreditor Agreement dated as of
the Issue Date among the Bank Collateral Agent, the Trustee, the Collateral Agent, the Issuer and
each Guarantor, as it may be amended from time to time in accordance hereunder.




          “interest” means, with respect to the Notes, interest and any Additional Interest on the
Notes.




          “Interest Payment Date” means the Stated Maturity of an installment of interest on the Notes.




          “Investments” means, with respect to any Person, all direct or indirect investments by such
Person in other Persons (including Affiliates) in the forms of loans (including Guarantees or other obligations), advances or capital contributions (excluding
accounts receivable, trade credit, advances to customers, commission, travel and similar advances
to officers and employees made consistent with past practices), purchases or other



-16-









 






acquisitions for
consideration of Indebtedness, Equity Interests or other securities, together with all items that
are or would be classified as investments on a balance sheet prepared in accordance with GAAP. If
the Issuer or any Restricted Subsidiary of the Issuer sells or otherwise disposes of any Equity
Interests of any direct or indirect Restricted Subsidiary of the Issuer such that, after giving
effect to any such sale or disposition, such Person is no longer a Restricted Subsidiary of the
Issuer, the Issuer shall be deemed to have made a Restricted Investment on the date of any such
sale or disposition equal to the fair market value of the Equity Interests of such Restricted
Subsidiary not sold or disposed of in an amount determined as provided in Section 4.11(c). The
acquisition by the Issuer or any Restricted Subsidiary of the Issuer of a Person that holds an
Investment in a third Person shall be deemed to be an Investment by the Issuer or such Restricted
Subsidiary in such third Person in an amount equal to the fair market value of the Investment held
by the acquired Person in such third Person in an amount determined as provided in Section 4.11(c).




          For purposes of the definition of “Unrestricted Subsidiary” and Section 4.11, (i) Investments
shall include the portion (proportionate to the Issuer’s equity interest in such Subsidiary) of the
fair market value of the net assets of a Subsidiary of the Issuer at the time such Subsidiary is
designated an Unrestricted Subsidiary; provided, however, that upon a redesignation of such
Subsidiary as a Restricted Subsidiary, the Issuer shall be deemed to continue to have a permanent
“Investment” in an Unrestricted Subsidiary in an amount (if positive) equal to (x) the Issuer’s
“Investment” in such Subsidiary at the time of such redesignation less (y) the portion
(proportionate to the Issuer’s equity interest in such Subsidiary) of the fair market value of the
net assets of such Subsidiary at the time of such redesignation; and (ii) any property transferred
to or from an Unrestricted Subsidiary shall be valued at its fair market value at the time of such
transfer, in each case as determined in good faith by the Issuer.




          “Issue Date” shall mean May 20, 2008, the original issue date of the Notes.




          “Issuer” means the parties named as the “Issuer” in the first paragraph of this Indenture.




          “Lenders Debt” means any (i) Indebtedness outstanding from time to time under the Credit
Agreement, (ii) any Indebtedness which has a priority security interest relative to the Notes in
the ABL Collateral, (iii) all obligations with respect to such Indebtedness and any Hedging
Obligations directly related to any Lenders Debt and (iv) all cash management obligations incurred
with any Bank Lender (or their affiliates).




          “Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest
or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise
perfected under applicable law, including any conditional sale or other title
retention agreement, any lease (other than an operating lease), any option or other agreement
to sell or give a security interest in and any filing of or agreement to give any financing
statement under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction.




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          “Material Foreign Subsidiary” means, at any date of determination, each of the Issuer’s
Foreign Restricted Subsidiaries (a) whose total assets at the end of the most recently ended fiscal
quarter of the Issuer for which internal financial statements are available were equal to or
greater than 2.5% of total assets of the consolidated assets of the Issuer and its Restricted
Subsidiaries at such date or (b) whose gross revenues for the most recently ended period of four
consecutive fiscal quarters of the Issuer for which internal financial statements are available
were equal to or greater than 2.5% of the consolidated gross revenues of the Issuer and its
Restricted Subsidiaries for such period, in each case determined in accordance with GAAP; provided
that once either of the foregoing clauses (a) or (b) applies to a Foreign Restricted Subsidiary,
such Foreign Restricted Subsidiary shall continue to be a Material Foreign Subsidiary despite both
of the preceding clauses (a) or (b) ever becoming inapplicable to such Foreign Restricted
Subsidiary.




          “Maturity Date” means December 1, 2013.




          “Moody’s” means Moody’s Investors Service, Inc. or any successor to the rating agency business
thereof.




          “Net Income” means, with respect to any specified Person, the net income (loss) of such
Person, determined in accordance with GAAP and before any reduction in respect of preferred stock
dividends, excluding, however: (1) any gain (or loss), together with any related provision for
taxes on such gain (or loss), realized in connection with: (a) any Asset Sale (without reference
to the $5.0 million limitation); or (b) the disposition of any other assets by such Person or any
of its Restricted Subsidiaries (other than in the ordinary course of business) or the
extinguishment of any Indebtedness of such Person or any of its Restricted Subsidiaries; (2) any
extraordinary or nonrecurring gains, losses or charges, together with any related provision for
taxes on such gain, loss or charge; and (3) any gains, losses, or charges of the Issuer and its
Subsidiaries incurred in connection with the Transactions together with any related provision for
taxes on such gain, loss, or charge.




          “Net Proceeds” means the aggregate cash proceeds received by the Issuer or any of its
Restricted Subsidiaries in respect of any Asset Sale (including, without limitation, any cash
received upon the sale or other disposition of any noncash consideration received in any Asset
Sale), net of the direct costs relating to such Asset Sale or disposition of such noncash
consideration, including, without limitation, legal, accounting and investment banking fees, and
sales commissions, and any relocation expenses incurred as a result thereof, taxes paid or payable
as a result thereof, in each case, after taking into account any available tax credits or
deductions and any tax sharing arrangements, and amounts required to be applied to the repayment of
Indebtedness (other than revolving credit Indebtedness, unless there is a required
reduction in commitments) secured by a Lien on the asset or assets that were the subject of
such Asset Sale and any (1) reserve for adjustment in respect of the sale price of such asset or
assets established in accordance with GAAP and (2) any reserve or payment with respect to any
liabilities associated with such asset or assets and retained by the Issuer after such sale or
other



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disposition thereof, including, without limitation, severance costs, pension and other
post-employment benefit liabilities and liabilities related to environmental matters or against any
indemnification obligations associated with such transaction.




          “Non-Recourse Debt” means Indebtedness:





     (1) as to which neither the Issuer nor any of its Restricted Subsidiaries (a) provides
credit support of any kind (including any undertaking, agreement or instrument that would
constitute Indebtedness), or (b) is directly or indirectly liable as a guarantor or
otherwise; and




     (2) as to which the lenders have been notified in writing that they will not have any
recourse to the stock or assets of the Issuer or any of its Restricted Subsidiaries.



          “Non-U.S. Person” has the meaning assigned to such term in Regulation S.




          “Note Guarantee” shall mean the Guarantee of the Notes by each Guarantor of the Issuer’s
payment obligations under this Indenture, the Notes, the Security Documents and the Intercreditor
Agreement, executed pursuant to the provisions of this Indenture.




          “Notes” means the 10% Senior Secured Notes due 2013 issued by the Issuer, including, without
limitation, the Exchange Notes and the Additional Notes, if any, treated as a single class of
securities, as amended from time to time in accordance with the terms hereof, that are issued
pursuant to this Indenture.




          “Notes Collateral” means “Noteholder First Lien Collateral” as defined in the Intercreditor
Agreement as of the Issue Date.




          “Obligations” means any principal, interest, penalties, fees, indemnifications,
reimbursements, damages, costs, expenses and other liabilities payable under the documentation
governing any Indebtedness (including with respect to the Notes, the Indenture, Intercreditor
Agreement, Security Agreement and other Security Documents).




          “Offering Circular” means the offering circular of the Issuer dated May 13, 2008 relating to
the Notes.




          “Officer” means the Chairman of the Board, the Chief Executive Officer, Chief Financial
Officer or Chief Accounting Officer, the President, any Executive Vice President, Senior Vice
President or Vice President, the Treasurer or the Secretary of the Issuer.




          “Officers’ Certificate” means, with respect to any Person, a certificate signed by the Chief
Executive Officer or President and by the Treasurer, Chief Financial Officer or Chief Accounting
Officer of such Person.




-19-









 








          “Opinion of Counsel” means a written opinion from legal counsel who is reasonably acceptable
to the Trustee. The counsel may be an employee of or counsel to the Issuer or the Trustee.




          “Other Pari Passu Lien Obligations” means any Additional Notes and any other Indebtedness
having substantially identical terms as the Notes (other than issue price, interest rate, yield and
redemption terms) and issued under an indenture substantially identical to the Indenture and any
Indebtedness that refinances or refunds (or successive refinancings and refundings) any Notes or
Additional Notes and all obligations with respect to such Indebtedness; provided, that such
Indebtedness may (a) have a stated maturity date that is equal to or longer than the Notes, (b)
contain terms and covenants that are, in the reasonable opinion of the Issuer, less restrictive
than the terms and covenants under the Notes and (c) contain terms and covenants that are more
restrictive than the terms and covenants under the Notes so long as prior to or substantially
simultaneously with the issuance of any such Indebtedness, the Notes and the Indenture are amended
to contain any such more restrictive terms and covenants.




          “Parent” means any direct or indirect parent company of the Issuer.




          “Pari Passu Indebtedness” means: (1) with respect to the Issuer, the Notes and any
Indebtedness which ranks pari passu in right of payment to the Notes; and (2) with respect to any
Guarantor, its Note Guarantee and any Indebtedness which ranks pari passu in right of payment to
such Guarantor’s Note Guarantee.




          “Perfection Certificate” means the Perfection Certificate substantially in the form of Exhibit
D to the Security Agreement.




          “Permitted Business” means any business conducted or proposed to be conducted by the Issuer
and its Restricted Subsidiaries on the date of this Indenture and other businesses reasonably
related or ancillary thereto.




          “Permitted Collateral Liens” means:





     (1) Liens securing the Notes outstanding on the Issue Date, the Exchange Notes issued
in exchange for such Notes, Permitted Refinancing Indebtedness with respect to such Notes or
Exchange Notes, the Note Guarantees relating thereto and any obligations with respect to
such Notes, Exchange Notes, Permitted Refinancing Indebtedness and Note Guarantees;




     (2) Liens securing any Other Pari Passu Lien Obligations incurred pursuant to Section
4.10(b)(15) in an aggregate principal amount not to exceed $75.0 million at any one time
outstanding;




     (3) Liens securing any Other Pari Passu Lien Obligations not incurred pursuant to
Section 4.10(b)(1) which Liens are not permitted pursuant to clause (2) of this definition;



-20-









 







provided, however, that, at the time of incurrence of such Other Pari Passu Lien Obligations
and after giving pro forma effect thereto, the Consolidated Secured Debt Ratio would be no
greater than 3.50 to 1.0;




     (4) Liens existing on the Issue Date (other than Liens specified in clause (1) above or
securing Lenders Debt) securing obligations in excess of $500,000 and set forth in Schedule
II hereto;




     (5) Liens described in clauses (1), (2), (10), (11), (12), (13), (15), (16), (17), (18)
and (20) of the definition of Permitted Liens; and




     (6) Liens on the Notes Collateral in favor of any collateral agent relating to such
collateral agent’s administrative expenses with respect to the Notes Collateral.



          For purposes of determining compliance with this definition, (A) Other Pari Passu Lien
Obligations need not be incurred solely by reference to one category of permitted Other Pari Passu
Lien Obligations described in clauses (1) through (6) of this definition but are permitted to be
incurred in part under any combination thereof and (B) in the event that an item of Other Pari
Passu Lien Obligations (or any portion thereof) meets the criteria of one or more of the categories
of permitted Other Pari Passu Lien Obligations described in clauses (1) through (6) above, the
Issuer shall, in its sole discretion, classify (but not reclassify) such item of Other Pari Passu
Lien Obligations (or any portion thereof) in any manner that complies with this definition and will
only be required to include the amount and type of such item of Other Pari Passu Lien Obligations
in one of the above clauses and such item of Other Pari Passu Lien Obligations will be treated as
having been incurred pursuant to only one of such clauses.




          “Permitted Investments” means:





     (1) any Investment in the Issuer or in a Restricted Subsidiary of the Issuer;




     (2) any Investment in Cash Equivalents;




     (3) any Investment by the Issuer or any Restricted Subsidiary of the Issuer in a
Person, if as a result of such Investment:




     (a) such Person becomes a Restricted Subsidiary of the Issuer; or




     (b) such Person is merged, consolidated or amalgamated with or into, or
transfers or conveys substantially all of its assets to, or is liquidated into, the
Issuer or a Restricted Subsidiary of the Issuer;




     (4) any Investment made as a result of the receipt of noncash consideration from an
Asset Sale or other sale of assets that was made pursuant to and in compliance with Section
4.13.



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     (5) any Investment the payment for which consists of Equity Interests (other than
Disqualified Stock) of the Issuer or any Parent (which Investment, in the case of any
Parent, is contributed to the common equity capital of the Issuer; provided that any such
contribution shall be excluded from Section 4.11(a)(3)(b));




     (6) Hedging Obligations;




     (7) any Investment to the extent such Investment, when taken together with all other
Investments made pursuant to this clause (7) and outstanding on the date of such Investment,
do not exceed the greater of (x) $50.0 million or (y) 5% of Consolidated Tangible Assets of
the Issuer; provided that Investments pursuant to this clause (7) shall not, directly or
indirectly, fund the repurchase, redemption or other acquisition or retirement for value of,
or payment of dividends or distribution on, any Equity Interests of, or making any
Investment in the holder of any Equity Interests in, any Parent;




     (8) any Investment of the Issuer or any of its Restricted Subsidiaries existing on the
date of this Indenture; and any extension, modification or renewal of any such Investment,
but only to the extent not involving additional advances, contributions or other Investments
of cash or other assets or other increases thereof (other than as a result of the accrual or
accretion of interest or original issue discount or the issuance of pay-in-kind securities,
in each case, pursuant to the terms of such Investment as in effect on the Issue Date);




     (9) loans to employees that are approved in good faith by a majority of the Board of
Directors of the Issuer in an amount not to exceed $5.0 million outstanding at any time;




     (10) any Investment acquired by the Issuer or any of its Restricted Subsidiaries:




     (a) in exchange for any other Investment or accounts receivable held by the
Issuer or any such Restricted Subsidiary in connection with or as a result of a
bankruptcy, workout, reorganization or recapitalization of a Person, or




     (b) as a result of a foreclosure by the Issuer or any of its Restricted
Subsidiaries with respect to any secured Investment or other transfer of title with
respect to any secured Investment in default;




     (11) Investments consisting of the licensing or contribution of intellectual property
pursuant to joint marketing arrangements with other Persons;




     (12) Investments in joint ventures engaged in a Permitted Business not in excess of the
greater of (x) $25.0 million or (y) 2.5% of Consolidated Tangible Assets of the Issuer, in
the aggregate outstanding at any one time;



-22-









 






     (13) Investments in Unrestricted Subsidiaries not in excess of the greater of (x) $25.0
million or (y) 2.5% of Consolidated Tangible Assets of the Issuer, in the aggregate
outstanding at any one time; and




     (14) Investments by the Issuer or a Restricted Subsidiary of the Issuer in a
Receivables Subsidiary or any Investment by a Receivables Subsidiary in any other Person, in
each case, in connection with a Qualified Receivables Transaction.



          The amount of Investments outstanding at any time pursuant to clauses (7), (12) and (13) of
this definition shall be reduced by an amount equal to the net reduction in Investments by the
Issuer and its Restricted Subsidiaries, subsequent to the date of this Indenture, resulting from
repayments of loans or advances or other transfers of assets, in each case to the Issuer or any
such Restricted Subsidiary from any such Investment, or from the net cash proceeds from the sale of
any such Investment, or from a redesignation of an Unrestricted Subsidiary to a Restricted
Subsidiary, not to exceed, in the case of any Investment, the amount of the Investment previously
made by the Issuer or any Restricted Subsidiary in such Person or Unrestricted Subsidiary.




          “Permitted Liens” means:





     (1) Liens on property existing at the time of acquisition thereof by the Issuer or any
Restricted Subsidiary of the Issuer; provided that such Liens were in existence prior to the
contemplation of such acquisition and do not extend to any property other than the property
so acquired by the Issuer or the Restricted Subsidiary;




     (2) Liens to secure Indebtedness (including Capital Lease Obligations) permitted by
Section 4.10(b)(4) covering only the assets acquired with such Indebtedness;




     (3) Liens of the Issuer and its Restricted Subsidiaries existing on the date of this
Indenture securing obligations in excess of $500,000 and set forth on Schedule II hereto;




     (4) Liens incurred in the ordinary course of business of the Issuer or any Restricted
Subsidiary of the Issuer with respect to obligations that do not exceed $10.0 million at any
one time outstanding;




     (5) Liens to secure the performance of statutory obligations, surety or appeal bonds,
performance bonds or other similar obligations (exclusive of obligations for the payment of
borrowed money) incurred in the ordinary course of business;




     (6) Liens upon specific items of inventory, or other goods and proceeds of any Person
securing such Person’s obligations in respect of bankers’ acceptances issued or



-23-









 







created for
the account of such Person to facilitate the purchase, shipment or storage of such inventory
or other goods;




     (7) Liens incurred or deposits made in the ordinary course of business in connection
with workers’ compensation, unemployment insurance and other types of social security,
including any Lien securing letters of credit issued in the ordinary course of business
consistent with past practice in connection therewith;




     (8) Liens to secure Indebtedness of any Foreign Restricted Subsidiary permitted by
Section 4.10(b)(16) covering only the assets of such Foreign Restricted Subsidiary;




     (9) Liens on assets of a Receivables Subsidiary arising in connection with a Qualified
Receivables Transaction;




     (10) Liens for taxes, assessments, governmental charges or claims that are not yet due
or are being contested in good faith by appropriate legal proceedings; provided that any
reserve or other appropriate provision, if any, as shall be required in conformity with GAAP
shall have been made therefor;




     (11) statutory Liens of landlords and carriers, warehousemen, mechanics, suppliers,
materialmen, repairmen or other similar Liens arising in the ordinary course of business and
with respect to amounts not yet delinquent or being contested in good faith by appropriate
legal proceedings; provided that any reserve or other appropriate provision, if any, as
shall be required in conformity with GAAP shall have been made therefor;




     (12) easements, rights-of-way, municipal and zoning ordinances and similar charges,
encumbrances, title defects or other irregularities that do not materially interfere with
the ordinary course of business of the Issuer or any of its Subsidiaries, taken as a whole;




     (13) leases or subleases or licenses granted to others in the ordinary course of
business of the Issuer or any of its Restricted Subsidiaries, taken as a whole;




     (14) Liens encumbering property or assets under construction arising from progress or
partial payments by a customer of the Issuer or any of its Restricted Subsidiaries relating
to such property or assets;




     (15) any interest or title of a lessor in the property subject to any Capital Lease
Obligation;




     (16) Liens arising from filing precautionary Uniform Commercial Code financing
statements regarding leases;



-24-









 






     (17) Liens on property of, or on shares of stock or Indebtedness of, any Person
existing at the time (A) such Person becomes a Restricted Subsidiary of the Issuer or
(B) such Person or such property is acquired by the Issuer or any Restricted Subsidiary;
provided that such Liens do not extend to any other assets of the Issuer or any Restricted
Subsidiary and such Lien secures only those obligations which it secures on the date of such
acquisition (and extensions, renewals, refinancings and replacements thereof);




     (18) Liens arising from the rendering of a final judgment or order against the Issuer
or any Restricted Subsidiary that does not give rise to an Event of Default;




     (19) Liens securing reimbursement obligations with respect to letters of credit that
encumber documents and other property relating to such letters of credit and the products
and proceeds thereof;




     (20) Liens in favor of customs and revenue authorities arising as a matter of law to
secure payment of customs duties in connection with the importation of goods;




     (21) Liens encumbering customary initial deposits and margin deposits, and other Liens
that are either within the general parameters customary in the industry and incurred in the
ordinary course of business or otherwise permitted under the terms of the Lenders Debt, in
each case securing Indebtedness under Hedging Obligations;




     (22) Liens solely on any cash earnest money deposits made by the Issuer or any of its
Restricted Subsidiaries in connection with any letter of intent or purchase agreement
permitted under this Indenture;




     (23) Liens (i) of a collection bank arising under Section 4-208 of the Uniform
Commercial Code (or equivalent statutes) on items in the course of collection and (ii) in
favor of a banking institution arising as a matter of law encumbering deposits (including
the right of set-off) and which are within the general parameters customary in the banking
industry;




     (24) Liens encumbering reasonable customary initial deposits and margin deposits and
similar Liens attaching to brokerage accounts incurred in the ordinary course of business
and not for speculative purposes; and




     (25) Liens in favor of the Issuer or any Guarantor.



          “Permitted Refinancing Indebtedness” means any Indebtedness of the Issuer or any of its
Restricted Subsidiaries issued in exchange for, or the net proceeds of which are used to extend,
refinance, renew, replace, defease or refund other Indebtedness of the Issuer or any of its
Restricted Subsidiaries (other than intercompany Indebtedness); provided that:




-25-









 









     (1) the principal amount (or accreted value, if applicable) of such Permitted
Refinancing Indebtedness does not exceed the principal amount (or accreted value, if
applicable) of the Indebtedness so extended, refinanced, renewed, replaced, defeased or
refunded (plus all accrued interest thereon and the amount of any reasonably determined
premium and other amounts necessary to accomplish such refinancing and such reasonable fees
and expenses incurred in connection therewith);




     (2) such Permitted Refinancing Indebtedness has a final maturity date equal to or later
than the final maturity date of, and has a Weighted Average Life to Maturity equal to or
greater than the Weighted Average Life to Maturity of, the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded;




     (3) if the Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded is subordinated in right of payment to the Notes, such Permitted Refinancing
Indebtedness has a final maturity date later than the final maturity date of, and is
subordinated in right of payment to, the Notes on terms at least as favorable to the Holders
of Notes as those contained in the documentation governing the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded; and




     (4) such Indebtedness is incurred either by the Issuer or by the Restricted Subsidiary
who is the obligor on the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded.



          “Person” means any individual, corporation, partnership, joint venture, association,
joint-stock issuer, trust, unincorporated organization, limited liability issuer or government or
other entity.




          “Principals” means the Equity Sponsor and its Affiliates.




          “Private Placement Legend” means the legends initially set forth on the Notes in the form set
forth in Exhibit B.




          “Pro Forma Cost Savings” means, with respect to any period, the reduction in net costs and
related adjustments that (i) were directly attributable to an Asset Acquisition that occurred
during the four-quarter period or after the end of the four-quarter period and on or prior to the
Calculation Date and calculated on a basis that is consistent with Regulation S-X under the
Securities Act as in effect and applied as of the date of this Indenture, (ii) were actually
implemented by the business that was the subject of any such Asset Acquisition within six months
after the date of the Asset Acquisition and prior to the Calculation Date that are
supportable and quantifiable by the underlying accounting records of such business or
(iii) relate to the business that is the subject of any such Asset Acquisition and that the Issuer
reasonably determines are probable based upon specifically identifiable actions to be taken within
six months of the date of the Asset Acquisition and, in the case of each of (i), (ii) and (iii) of
this



-26-









 






definition, are described, as provided below, in an Officers’ Certificate, as if all such
reductions in costs had been effected as of the beginning of such period. Pro Forma Cost Savings
described above shall be accompanied by a certificate delivered to the Trustee from the Issuer’s
Chief Financial Officer that outlines the specific actions taken or to be taken, the net cost
savings achieved or to be achieved from each such action and that, in the case of clause (iii)
above, such savings have been determined to be probable.




          “Public Equity Offering” means an offer and sale for cash of common stock (other than
Disqualified Stock) of the Issuer or any Parent pursuant to a registration statement that has been
declared effective, by the Commission pursuant to the Securities Act (other than a registration
statement on Form S-8 or otherwise relating to equity securities issuable under any employee
benefit plan of the Issuer).




          “Purchase Money Note” means a promissory note evidencing a line of credit, or evidencing other
Indebtedness, owed to the Issuer or any Restricted Subsidiary of the Issuer in connection with a
Qualified Receivables Transaction, which note shall be repaid from cash available to the maker of
such note, other than amounts required to be established as reserves pursuant to agreement, amounts
paid to investors in respect of interest, principal and other amounts owing to such investors and
amounts paid in connection with the purchase of newly generated receivables.




          “Qualified Institutional Buyer” or “QIB” shall have the meaning specified in Rule 144A under
the Securities Act.




          “Qualified Receivables Transaction” means any transaction or series of transactions that may
be entered into by the Issuer or by any Restricted Subsidiary of the Issuer pursuant to which the
Issuer or any Restricted Subsidiary of the Issuer may sell, convey or otherwise transfer to a
Receivables Subsidiary, any accounts receivable (whether now existing or arising in the future) of
the Issuer or any Restricted Subsidiary of the Issuer and any asset related thereto, including,
without limitation, all collateral securing such accounts receivable, and all Guarantees or other
obligations in respect of such accounts receivable, proceeds of such accounts receivable and other
assets that are customarily transferred, or in respect of which security interests are customarily
granted, in connection with an asset securitization transaction involving accounts receivable.




          “Receivables Subsidiary” means a Subsidiary of the Issuer (other than a Guarantor) that
engages in no activities other than in connection with the financing of accounts receivables and
that is designated by the Board of Directors of the Issuer (as provided below) as a Receivables
Subsidiary (a) no portion of the Indebtedness or any other obligations (contingent
or otherwise) of which (i) is Guaranteed by the Issuer or any other Restricted Subsidiary of
the Issuer (excluding Guarantees of obligations (other than the principal of, and interest on,
Indebtedness) pursuant to Standard Securitization Undertakings), (ii) is recourse to or obligates
the Issuer or any other Restricted Subsidiary of the Issuer in any way other than pursuant to



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Standard Securitization Undertakings or (iii) subjects any property or asset of the Issuer or any
other Restricted Subsidiary of the Issuer, directly or indirectly, contingently or otherwise to the
satisfaction thereof, other than pursuant to Standard Securitization Undertakings, (b) with which
neither the Issuer nor any other Restricted Subsidiary of the Issuer has any material contract,
agreement, arrangement or understanding (except in connection with a Purchase Money Note or
Qualified Receivables Transaction) other than on terms no less favorable to the Issuer or such
other Restricted Subsidiary of the Issuer than those that might be obtained at the time from
Persons that are not Affiliates of the Issuer, other than fees payable in the ordinary course of
business in connection with servicing accounts receivable, and (c) to which neither the Issuer nor
any other Restricted Subsidiary of the Issuer has any obligation to maintain or preserve such
entity’s financial condition or cause such entity to achieve a certain level of operating results.
Any such designation by the Board of Directors of the Issuer shall be evidenced to the Trustee by
filing with the Trustee a certified copy of the resolution of the Board of Directors of the Issuer
giving effect to such designation and an Officers’ Certificate certifying, to the best of such
officer’s knowledge and belief after consulting with counsel, that such designation complied with
the foregoing conditions.




          “Record Date” means the applicable Record Date specified in the Notes; provided that if any
such date is not a Business Day, the Record Date shall be the first day immediately succeeding such
specified day that is a Business Day.




          “Redemption Date,” when used with respect to any Note to be redeemed, means the date fixed for
such redemption pursuant to this Indenture and the Notes.




          “Redemption Price,” when used with respect to any Note to be redeemed, means the price fixed
for such redemption, payable in immediately available funds, pursuant to this Indenture and the
Notes.




          “Registration Rights Agreement” means the registration rights agreement dated as of the Issue
Date between the Issuer, the Guarantors and the Initial Purchasers named therein.




          “Regulation S” means Regulation S under the Securities Act.




          “Related Party” means:




          (1) any controlling stockholder, partner, member, 80% (or more) owned Subsidiary, or immediate
family member (in the case of an individual) of any Principal; or




          (2) any trust, corporation, partnership or other entity, the beneficiaries, stockholders,
partners, owners or Persons beneficially holding an 80% or more controlling
interest of which consist of any one or more Principals and/or such other Persons referred to
in the immediately preceding clause.




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          “Related Person” means, with respect to a any specified Person, such Person’s Affiliates, and
the respective officers, directors, employees, agents, advisors and attorneys-in-fact of such
Person and its Affiliates.




          “Replacement Assets” means (1) noncurrent tangible assets that will be used or useful in a
Permitted Business or (2) all or substantially all of the assets of a Permitted Business or a
majority of the Voting Stock of any Person engaged in a Permitted Business that will become on the
date of acquisition thereof a Restricted Subsidiary.




          “Responsible Officer” means, when used with respect to the Trustee, any officer in the
Corporate Trust Office of the Trustee to whom any corporate trust matter is referred because of
such officer’s knowledge of and familiarity with the particular subject and shall also mean any
officer who shall have direct responsibility for the administration of this Indenture.




          “Restricted Investment” means an Investment other than a Permitted Investment.




          “Restricted Security” means a Note that constitutes a “Restricted Security” within the meaning
of Rule 144(a)(3) under the Securities Act; provided, however, that the Trustee shall be entitled
to request and conclusively rely on an Opinion of Counsel with respect to whether any Note
constitutes a Restricted Security.




          “Restricted Subsidiary” of a Person means any Subsidiary of the referent Person that is not an
Unrestricted Subsidiary. Unless otherwise specified, a Restricted Subsidiary as used herein refers
to a Restricted Subsidiary of the Issuer.




          “Rule 144A” means Rule 144A under the Securities Act.




          “S&P” means Standard & Poor’s Ratings Services or any successor to the rating agency business
thereof.




          “Secured Parties” means (a) the Holders, (b) the Trustee, (c) the Collateral Agent, (d) the
beneficiaries of each indemnification obligation undertaken by the Issuer or any Guarantor under
the Indenture, Notes, Security Agreement, Intercreditor Agreement or other Security Documents and
(g) the successors and assigns of each of the foregoing.




          “Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations
of the Commission promulgated thereunder.




          “Security Agreement” means the Collateral Agreement as of the Issue Date among the Issuer, the
Guarantors from time to time party thereto and the Collateral Agent.




          “Security Documents” means Security Agreement, other security agreements, pledge agreements,
mortgages, collateral assignments and related agreements, as amended,



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supplemented, restated,
renewed, refunded, replaced, restructured, repaid, refinanced or otherwise modified from time to
time, creating the security interests in the Collateral as contemplated hereunder.




          “Significant Subsidiary” means any Subsidiary that would be a “significant subsidiary” as
defined in Article I, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as
such Regulation is in effect on the date of this Indenture.




          “Standard Securitization Undertakings” means representations, warranties, covenants and
indemnities entered into by the Issuer or any Restricted Subsidiary of the Issuer that are
reasonably customary in an accounts receivable transaction.




          “Stated Maturity” means, with respect to any installment of interest or principal on any
series of Indebtedness, the date on which such payment of interest or principal was scheduled to be
paid in the original documentation governing such Indebtedness, and shall not include any
contingent obligations to repay, redeem or repurchase any such interest or principal prior to the
date originally scheduled for the payment thereof.




          “Subordinated Indebtedness” means (a) with respect to the Issuer, any Indebtedness which is by
its terms subordinated in right of payment to the Notes, and (b) with respect to any Guarantor, any
Indebtedness of such Guarantor which is by its terms subordinated in right of payment to its Note
Guarantee.




          “Subsidiary” means, with respect to any specified Person: (1) any corporation, association or
other business 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 election of
directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly,
by such Person or one or more of the other Subsidiaries of that Person (or a combination thereof);
and (2) any partnership (a) the sole general partner or the managing general partner of which is
such Person or a Subsidiary of such Person or (b) the only general partners of which are such
Person or one or more Subsidiaries of such Person (or any combination thereof).




          “Superholdings” means NTK Holdings, Inc., a Delaware corporation, and its successors.




          “TIA” means the Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb), as amended, as in
effect on the date of the execution of this Indenture until such time as this Indenture is
qualified under the TIA, and thereafter as in effect on the date on which this Indenture is
qualified under the TIA, except as otherwise provided in Section 9.03.




          “Transactions” means, collectively, (a) the execution, delivery and performance by the Issuer
and the Guarantors of the indenture, Security Documents, Intercreditor Agreement and other related
documents to which they are a party and the issuance of the Notes thereunder,



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(b) the execution,
delivery and performance by Holdings, the Issuer and the guarantors party thereto of the Credit
Agreement, Intercreditor Agreement and related security documents on the Issue Date and borrowing
thereunder, (c) the repayment in full of all obligations, and cancellation of all commitments, with
respect to the Existing Credit Agreement and the release of all Guarantees (if any) thereof and
security (if any) therefor and (d) the payment of related fees and expenses.




          “Trustee” means the party named as the “Trustee” in the first paragraph of this Indenture
until a successor replaces it pursuant to the applicable provisions of this Indenture and,
thereafter, shall mean such successor.




          “Uniform Commercial Code” means the Uniform Commercial Code as in effect in the relevant
jurisdiction from time to time. Unless otherwise specified, references to the Uniform Commercial
Code herein refer to the New York Uniform Commercial Code.




          “Unrestricted Securities” means one or more Notes that do not and are not required to bear the
legends in the form set forth in Exhibit B or Exhibit C, including, without
limitation, the Exchange Notes.




          “Unrestricted Subsidiary” means any Subsidiary of the Issuer that is designated by the Board
of Directors as an Unrestricted Subsidiary pursuant to a Board Resolution, but only to the extent
that such Subsidiary:





     (1) has no Indebtedness other than Non-Recourse Debt;




     (2) is a Person with respect to which neither the Issuer nor any of its Restricted
Subsidiaries has any direct or indirect obligation (a) to subscribe for additional Equity
Interests or (b) to maintain or preserve such Person’s financial condition or to cause such
Person to achieve any specified levels of operating results; and




     (3) is not a guarantor or does not otherwise directly or indirectly provide credit
support for any Indebtedness of the Issuer or any of its Restricted Subsidiaries at the time
of such designation unless such Guarantee or credit support is released upon such
designation.



          Any designation of a Restricted Subsidiary of the Issuer as an Unrestricted Subsidiary shall
be evidenced to the Trustee by filing with the Trustee a certified copy of the Board Resolution
giving effect to such designation and an Officers’ Certificate certifying that such designation
complied with the preceding conditions and was permitted by Section 4.11. If, at any time, any
Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted
Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of
this Indenture and any Indebtedness of such Subsidiary shall be deemed to be incurred by a
Restricted Subsidiary of the Issuer as of such date and, if such Indebtedness is not permitted to
be incurred as of such date under Section 4.10, the Issuer shall be in default.




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          “U.S. Legal Tender” means such coin or currency of the United States of America as at the time
of payment shall be legal tender for the payment of public and private debts.




          “Voting Stock” of any Person as of any date means the Capital Stock of such Person that is at
the time entitled to vote in the election of the Board of Directors of such Person.




          “Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the
number of years obtained by dividing:





     (1) the sum of the products obtained by multiplying (a) the amount of each then
remaining installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (b) the number of
years (calculated to the nearest one-twelfth) that will elapse between such date and the
making of such payment; by




     (2) the then outstanding principal amount of such Indebtedness.



          “Wholly Owned Subsidiary” of any Person shall mean a subsidiary of such person of which
securities (except for directors’ qualifying shares) or other ownership interests representing 100%
of the Capital Stock are, at the time any determination is being made, owned, controlled or held by
such person or one or more Wholly Owned Subsidiaries of such person or by such Person and one or
more Wholly Owned Subsidiaries of such person.




SECTION 1.02. Other Definitions.




	 	 	 	 	 
	Term 	 	Defined in Section
	“Additional Notes”
	 	 	2.01	 
	 
	 	 	 	 
	“Affiliate Transaction”
	 	 	4.14	 
	 
	 	 	 	 
	“Agent Members”
	 	 	2.16	 
	 
	 	 	 	 
	“Asset Sale Offer”
	 	 	4.13	 
	 
	 	 	 	 
	“Change of Control Offer”
	 	 	4.09	 
	 
	 	 	 	 
	“Change of Control Payment”
	 	 	4.09	 
	 
	 	 	 	 
	“Change of Control Payment Date”
	 	 	4.09	 
	 
	 	 	 	 
	“Covenant Defeasance”
	 	 	8.02	 
	 
	 	 	 	 
	“Event of Default”
	 	 	6.01	 
	 
	 	 	 	 
	“Excess”
	 	 	4.13	 






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	Term 	 	Defined in Section
	“Excess Proceeds”
	 	 	4.13	 
	 
	 	 	 	 
	“Excess Proceeds Payment”
	 	 	4.13	 
	 
	 	 	 	 
	“Global Note”
	 	 	2.16	 
	 
	 	 	 	 
	“incur”
	 	 	4.10	 
	 
	 	 	 	 
	“Independent Financial Advisor”
	 	 	4.11	 
	 
	 	 	 	 
	“Legal Defeasance”
	 	 	8.02	 
	 
	 	 	 	 
	“Offer Payment Date”
	 	 	4.13	 
	 
	 	 	 	 
	“Other Notes”
	 	 	2.02	 
	 
	 	 	 	 
	“Payment Default”
	 	 	6.01	 
	 
	 	 	 	 
	“Paying Agent”
	 	 	2.04	 
	 
	 	 	 	 
	“Permitted Debt”
	 	 	4.10	 
	 
	 	 	 	 
	“Physical Notes”
	 	 	2.02	 
	 
	 	 	 	 
	“Registrar”
	 	 	2.04	 
	 
	 	 	 	 
	“Regulation S Global Note”
	 	 	2.16	 
	 
	 	 	 	 
	“Regulation S Notes”
	 	 	2.02	 
	 
	 	 	 	 
	“Restricted Global Notes”
	 	 	2.16	 
	 
	 	 	 	 
	“Restricted Payments”
	 	 	4.11	 
	 
	 	 	 	 
	“Restricted Period”
	 	 	2.16	 
	 
	 	 	 	 
	“Rule 144A Notes”
	 	 	2.02	 






SECTION 1.03. Incorporation by Reference of TIA.




          Whenever this Indenture refers to a provision of the TIA, such provision is incorporated by
reference in, and made a part of, this Indenture. The following TIA terms used in this Indenture
have the following meanings:




          “indenture securities” means the Notes.




          “indenture security holder” means a Holder or a Noteholder.




          “indenture to be qualified” means this Indenture.




          “indenture trustee” or “institutional trustee” means the Trustee.




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          “obligor” on the indenture securities means the Issuer or any other obligor on the Notes.




          All other TIA terms used in this Indenture that are defined by the TIA, defined by the TIA
reference to another statute or defined by Commission rule and not otherwise defined herein have
the meanings assigned to them therein.




SECTION 1.04. Rules of Construction.




          Unless the context otherwise requires:





     (1) a term has the meaning assigned to it herein, whether defined expressly or by
reference;




     (2) an accounting term not otherwise defined has the meaning assigned to it in
accordance with GAAP;




     (3) “or” is not exclusive;




     (4) words in the singular include the plural, and words in the plural include the
singular;




     (5) words used herein implying any gender shall apply to both genders;




     (6) provisions apply to successive events and transactions;




     (7) “herein,” “hereof” and other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other subdivision; and




     (8) the words “including,” “includes” and similar words shall be deemed to be followed
by “without limitation.”



ARTICLE II




THE NOTES




SECTION 2.01. Amount of Notes.




          The Trustee shall initially authenticate (a) Notes for original issue on the Issue Date in an
aggregate principal amount of $750.0 million upon a written order of the Issuer in the
form of an Officers’ Certificate of the Issuer; and (b) Unrestricted Securities from time to
time only in exchange for a like principal amount of the Notes in each case upon a written order of
the Issuer in the form of an Officers’ Certificate. The Trustee shall authenticate Notes
thereafter in unlimited amount (so long as permitted by the terms of this Indenture, including,
without



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limitation, Section 4.10) (any such Notes, the “Additional Notes”) for original issue upon
a written order of the Issuer in the form of an Officers’ Certificate in aggregate principal amount
as specified in such order. Each such written order shall specify the principal amount of the
Notes to be authenticated and the date on which the Notes are to be authenticated.




SECTION 2.02. Form and Dating.




          The Notes and the Trustee’s certificate of authentication shall be substantially in the form
of Exhibit A hereto, which is incorporated in and forms a part of this Indenture. The
Notes may have notations, legends or endorsements required by law, rule or usage to which the
Issuer is subject. Without limiting the generality of the foregoing, Notes offered and sold to
Qualified Institutional Buyers in reliance on Rule 144A (“Rule 144A Notes”) shall bear the legend
and include the form of assignment set forth in Exhibit B, Notes offered and sold in
offshore transactions in reliance on Regulation S (“Regulation S Notes”) shall bear the legend and
include the form of assignment set forth in Exhibit C, and Notes offered and sold to
Institutional Accredited Investors in transactions exempt from registration under the Securities
Act not made in reliance on Rule 144A or Regulation S (“Other Notes”) may be represented by a
Restricted Global Note or, if such an investor may not hold an interest in the Restricted Global
Note, a Physical Note, in each case, bearing the Private Placement Legend. The Issuer shall
approve the form of the Notes and any notation, legend or endorsement on them. Each Note shall be
dated the date of its issuance and show the date of its authentication.




          The terms and provisions contained in the Notes shall constitute, and are hereby expressly
made, a part of this Indenture and, to the extent applicable, the Issuer and the Trustee, by their
execution and delivery of this Indenture, expressly agree to such terms and provisions and agree to
be bound thereby.




          The Notes may be presented for registration of transfer and exchange at the offices of the
Registrar.




          Notes issued in exchange for interests in a Global Note pursuant to Section 2.16 may be issued
in the form of permanent certificated Notes in registered form in substantially the form set forth
in Exhibit A (the “Physical Notes”).




SECTION 2.03. Execution and Authentication.




          One Officer, who shall have been duly authorized by all requisite corporate actions, shall
sign the Notes for the Issuer by manual or facsimile signature.




          If the Officer whose signature is on a Note was an Officer at the time of such execution but
no longer holds that office at the time the Trustee authenticates the Note, the Note shall be valid
nevertheless.




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          No Note shall be entitled to any benefit under this Indenture or be valid or obligatory for
any purpose unless there appears on such Note a certificate of authentication substantially in the
form provided for herein executed by the Trustee by manual signature, and such certificate upon any
Note shall be conclusive evidence, and the only evidence, that such Note has been duly
authenticated and delivered hereunder. Notwithstanding the foregoing, if any Note shall have been
authenticated and delivered hereunder but never issued and sold by the Issuer, and the Issuer shall
deliver such Note to the Trustee for cancellation as provided in Section 2.12, for all purposes of
this Indenture such Note shall be deemed never to have been authenticated and delivered hereunder
and shall never be entitled to the benefits of this Indenture.




          The Trustee may appoint an authenticating agent reasonably acceptable to the Issuer to
authenticate the Notes. Unless otherwise provided in the appointment, an authenticating agent may
authenticate the Notes whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An authenticating agent has
the same rights as an Agent to deal with the Issuer and Affiliates of the Issuer. Each Paying
Agent is designated as an authenticating agent for purposes of this Indenture.




          The Notes shall be issuable only in registered form without coupons in denominations of $1,000
principal amount and any integral multiple of $1,000.




SECTION 2.04. Registrar and Paying Agent.




          The Issuer shall maintain an office or agency in the Borough of Manhattan, The City of
New York, where (a) Notes may be presented or surrendered for registration of transfer or for
exchange (“Registrar”), (b) Notes may be presented or surrendered for payment (“Paying Agent”) and
(c) notices and demands to or upon the Issuer in respect of the Notes and this Indenture may be
served. The Issuer may also from time to time designate one or more other offices or agencies
where the Notes may be presented or surrendered for any or all such purposes and may from time to
time rescind such designations; provided, however, that no such designation or rescission shall in
any manner relieve the Issuer of its obligation to maintain an office or agency in the Borough of
Manhattan, The City of New York, for such purposes. The Issuer may act as its own Registrar or
Paying Agent, except that for the purposes of Articles Three and Eight and Sections 4.09 and 4.13,
neither the Issuer nor any Affiliate of the Issuer shall act as Paying Agent. The Registrar shall
keep a register of the Notes and of their transfer and exchange. The Issuer, upon notice to the
Trustee, may have one or more co-Registrars and one or more additional paying agents reasonably
acceptable to the Trustee. The term “Paying Agent” includes any additional paying agent. The
Issuer initially appoints the Trustee as
Registrar and Paying Agent until such time as the Trustee has resigned and a successor has
been appointed. The Issuer may remove any Registrar or Paying Agent upon written notice to such
Registrar or Paying Agent and to the Trustee.




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          The Issuer shall enter into an appropriate agency agreement with any Agent not a party to this
Indenture, which agreement shall implement the provisions of this Indenture that relate to such
Agent. The Issuer shall notify the Trustee, in advance, of the name and address of any such Agent.
If the Issuer fails to maintain a Registrar or Paying Agent, the Trustee shall act as such.




SECTION 2.05. Paying Agent To Hold Assets in Trust.




          The Issuer shall require each Paying Agent other than the Trustee to agree in writing that
each Paying Agent shall hold in trust for the benefit of Holders or the Trustee all assets held by
the 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 Issuer or any other obligor on the Notes),
and shall notify the Trustee of any Default by the Issuer (or any other obligor on the Notes) in
making any such payment. The Issuer at any time may require a Paying Agent to promptly distribute
all assets held by it to the Trustee and account for any assets disbursed, and the Trustee may at
any time during the continuance of any payment Default, upon written request to a Paying Agent,
require such Paying Agent to promptly distribute all assets held by it to the Trustee and to
account for any assets distributed. Upon distribution to the Trustee of all assets that shall have
been delivered by the Issuer to the Paying Agent, the Paying Agent shall have no further liability
for such assets.




SECTION 2.06. Holder Lists.




          The Trustee shall preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of Holders. If the Trustee is not the Registrar,
the Issuer shall furnish to the Trustee at least two (2) Business Days prior to 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, which
list may be conclusively relied upon by the Trustee.




SECTION 2.07. Transfer and Exchange.




          Subject to Sections 2.16 and 2.17, when Notes are presented to the Registrar with a request to
register the transfer of such Notes or to exchange such Notes for an equal principal amount of the
Notes of other authorized denominations, the Registrar shall promptly register the transfer or make
the exchange as requested if its requirements for such transaction are met; provided, however, that
the Notes surrendered for transfer or exchange shall be duly endorsed or accompanied by a written
instrument of transfer in form satisfactory to the Issuer and the Registrar, duly executed by the
Holder thereof or his or her attorney duly authorized in writing.
To permit registrations of transfers and exchanges, the Issuer shall execute and the Trustee
shall authenticate Notes at the Registrar’s request. No service charge shall be made for any
registration of transfer or exchange, but the Issuer may require payment of a sum sufficient to
cover any transfer tax or similar governmental charge payable in connection therewith.




-37-









 








          The Registrar shall not be required to register the transfer of or exchange of any Note
(i) during a period beginning at the opening of business 15 days before the mailing of a notice of
redemption of the Notes and ending at the close of business on the day of such mailing,
(ii) selected for redemption in whole or in part pursuant to Article III, except the unredeemed
portion of any Note being redeemed in part, and (iii) during a Change of Control Offer or an Asset
Sale Offer if such Note is tendered pursuant to such Change of Control Offer or Asset Sale Offer
and not withdrawn.




          Any Holder of a beneficial interest in a Global Note shall, by acceptance of such beneficial
interest, agree that transfers of beneficial interests in such Global Notes may be effected only
through a book-entry system maintained by the Holder of such Global Note (or its agent), and that
ownership of a beneficial interest in the Note shall be required to be reflected in a book-entry
system.




SECTION 2.08. Replacement Notes.




          If a mutilated Note is surrendered to the Registrar or the Trustee, or if the Holder of a Note
claims that the Note has been lost, destroyed or wrongfully taken, the Issuer shall issue and the
Trustee shall authenticate a replacement Note if the Holder of such Note furnishes to the Issuer
and the Trustee evidence reasonably acceptable to them of the ownership and the destruction, loss
or theft of such Note and if the requirements of Section 8-405 of the New York Uniform Commercial
Code as in effect on the date of this Indenture are met. If required by the Trustee or the Issuer,
an indemnity bond shall be posted, sufficient in the judgment of all to protect the Issuer, if any,
the Trustee or any Paying Agent from any loss that any of them may suffer if such Note is replaced.
The Issuer may charge such Holder for the Issuer’s reasonable out-of-pocket expenses in replacing
such Note and the Trustee may charge the Issuer for the Trustee’s expenses (including, without
limitation, attorneys’ fees and disbursements) in replacing such Note. Every replacement Note
shall constitute a contractual obligation of the Issuer.




SECTION 2.09. Outstanding Notes.




          The Notes outstanding at any time are all the Notes that have been authenticated by the
Trustee except those canceled by it, those delivered to it for cancellation and those described in
this Section as not outstanding. A Note does not cease to be outstanding because the Issuer or any
of its Affiliates holds the Note (subject to the provisions of Section 2.10).




          If a Note is replaced pursuant to Section 2.08 (other than a mutilated Note surrendered for
replacement), it ceases to be outstanding unless a Responsible Officer of the
Trustee receives proof satisfactory to it that the replaced Note is held by a bona fide
purchaser. A mutilated Note ceases to be outstanding upon surrender of such Note and replacement
thereof pursuant to Section 2.08.




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          If the principal of any Note is considered paid under Section 4.01, it ceases to be
outstanding and interest ceases to accrue. If on a Redemption Date or the Maturity Date the
Trustee or Paying Agent (other than the Issuer or an Affiliate thereof) holds U.S. Legal Tender or
Government Securities sufficient to pay all of the principal of, premium, if any, and interest due
on the Notes payable on that date, then on and after that date such Notes cease to be outstanding
and interest on them ceases to accrue.




SECTION 2.10. Treasury Notes.




          In determining whether the Holders of the required principal amount of the Notes have
concurred in any direction, waiver or consent, Notes owned by the Issuer or any of its Subsidiaries
shall be disregarded, except that, for the purposes of determining whether the Trustee shall be
protected in relying on any such direction, waiver or consent, only Notes that a Responsible
Officer of the Trustee actually knows are so owned shall be disregarded.




          The Issuer is not prohibited from acquiring Notes by means other than a redemption, whether by
tender offer, open market purchases, negotiated transactions or otherwise, in accordance with
applicable securities laws, so long as such acquisition does not otherwise violate the terms of
this Indenture.




SECTION 2.11. Temporary Notes.




          Until definitive Notes are ready for delivery, the Issuer may prepare and the Trustee shall
authenticate temporary Notes. Temporary Notes shall be substantially in the form of definitive
Notes but may have variations that the Issuer considers appropriate for temporary Notes. Without
unreasonable delay, the Issuer shall prepare and the Trustee shall authenticate definitive Notes in
exchange for temporary Notes. Until such exchange, temporary Notes shall be entitled to the same
rights, benefits and privileges as definitive Notes. Notwithstanding the foregoing, so long as the
Notes are represented by a Global Note, such Global Note may be in typewritten form.




SECTION 2.12. Cancellation.




          The Issuer at any time may deliver Notes to the Trustee for cancellation. The Registrar and
the Paying Agent shall forward to the Trustee any Notes surrendered to them for transfer, exchange
or payment. The Trustee or, at the direction of the Trustee, the Registrar or the Paying Agent
(other than the Issuer or a Subsidiary), and no one else, shall cancel and, at the written
direction of the Issuer, shall dispose of all Notes surrendered for transfer, exchange, payment or
cancellation in accordance with its customary procedures. Subject to Section 2.08, the Issuer may
not issue new Notes to replace Notes that it has paid or delivered to the Trustee
for cancellation. If the Issuer shall acquire any of the Notes, such acquisition shall not
operate as a redemption or satisfaction of the Indebtedness represented by such Notes unless and
until the same are surrendered to the Trustee for cancellation pursuant to this Section 2.12.




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SECTION 2.13. Defaulted Interest.




          If the Issuer defaults in a payment of interest on the Notes, it shall, unless the Trustee
fixes another Record Date pursuant to Section 6.10, pay the defaulted interest, plus (to the extent
lawful) any interest payable on the defaulted interest, in any lawful manner. The Issuer may pay
the defaulted interest to the persons who are Holders on a subsequent special Record Date, which
special Record Date shall be the fifteenth day next preceding the date fixed by the Issuer for the
payment of defaulted interest or the next succeeding Business Day if such date is not a Business
Day. At least 15 days before any such subsequent special Record Date, the Issuer shall mail to
each Holder, with a copy to the Trustee, a notice that states the subsequent special Record Date,
the payment date and the amount of defaulted interest, and interest payable on such defaulted
interest, if any, to be paid. The Issuer may make payment of any defaulted interest in any other
lawful manner not inconsistent with the requirements (if applicable) 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 Issuer to the Trustee of the proposed payment pursuant to this
sentence, such manner of payment shall be deemed practicable by the Trustee.




SECTION 2.14. CUSIP Number.




          The Issuer in issuing the Notes may use a “CUSIP” number (and corresponding “ISIN” number),
and if so, the Trustee shall use the CUSIP number in notices of redemption or exchange as a
convenience to Holders; provided, however, that any such notice may state that no representation is
made as to the correctness or accuracy of the CUSIP number printed in the notice or on the Notes,
and that reliance may be placed only on the other identification numbers printed on the Notes. The
Issuer will promptly notify the Trustee of any change in the CUSIP numbers.




SECTION 2.15. Deposit of Moneys.




          Prior to 10:00 a.m. New York City time on each Interest Payment Date, Maturity Date,
Redemption Date, Change of Control Payment Date and Excess Proceeds Payment Date, the Issuer shall
have deposited with the Paying Agent in immediately available funds money sufficient to make cash
payments, if any, due on such Interest Payment Date, Maturity Date, Redemption Date, Change of
Control Payment Date and Offer Payment Date, as the case may be, in a timely manner which permits
the Paying Agent to remit payment to the Holders on such Interest Payment Date, Maturity Date,
Redemption Date, Change of Control Payment Date and Offer Payment Date, as the case may be. The
principal of, premium and interest on Global Notes shall be payable to the Depositary or its
nominee, as the case may be, as the sole registered
owner and the sole Holder of the Global Notes represented thereby. The principal amount and
interest on Physical Notes shall be payable, either in person or by mail, at the office of the
Paying Agent.




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SECTION 2.16. Book-Entry Provisions for Global Notes.




          (a) Rule 144A Notes and Other Notes shall be represented by one or more notes in registered,
global form without interest coupons (collectively, the “Restricted Global Note”). Regulation S
Notes initially shall be represented by one or more notes in registered, global form without
interest coupons (collectively, the “Regulation S Global Note,” and, together with the Restricted
Global Note and any other global notes representing Notes, the “Global Notes”). The Global Notes
shall bear legends as set forth in Exhibit D. The Global Notes initially shall (i) be
registered in the name of the Depositary or the nominee of such Depositary, in each case for credit
to an account of an Agent Member, (ii) be delivered to the Trustee as custodian for such Depositary
and (iii) bear legends as set forth in Exhibit B with respect to Restricted Global Notes
and Exhibit C with respect to Regulation S Global Notes.




          Members of, or direct or indirect participants in, the Depositary (“Agent Members”) shall have
no rights under this Indenture with respect to any Global Note held on their behalf by the
Depositary, or the Trustee as its custodian, or under the Global Notes, and the Depositary may be
treated by the Issuer, the Trustee and any agent of the Issuer or the Trustee as the absolute owner
of the Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein
shall prevent the Issuer, the Trustee or any agent of the Issuer or the Trustee from giving effect
to any written certification, proxy or other authorization furnished by the Depositary or impair,
as between the Depositary and its Agent Members, the operation of customary practices governing the
exercise of the rights of a Holder of any Note.




          (b) Transfers of Global Notes shall be limited to transfer in whole, but not in part, to the
Depositary, its successors or their respective nominees. Interests of Beneficial Owners in the
Global Notes may be transferred or exchanged for Physical Notes in accordance with the rules and
procedures of the Depositary and the provisions of Section 2.17. In addition, a Global Note shall
be exchangeable for Physical Notes if (i) requested by a Holder of such interests or (ii) the
Depositary notifies the Issuer that it is unwilling or unable to continue as depository for such
Global Note and the Issuer thereupon fails to appoint a successor depositary within 90 days. In
all cases, Physical Notes delivered in exchange for any Global Note or beneficial interests therein
shall be registered in the names, and issued in any approved denominations, requested by or on
behalf of the Depositary (in accordance with its customary procedures).




          (c) In connection with any transfer or exchange of a portion of the beneficial interest in any
Global Note to Beneficial Owners pursuant to paragraph (b), the Registrar shall (if one or more
Physical Notes are to be issued) reflect on its books and records the date and a decrease in the
principal amount of the Global Note in an amount equal to the principal amount
of the beneficial interest in the Global Note to be transferred, and the Issuer shall execute,
and the Trustee shall upon receipt of a written order from the Issuer authenticate and make
available for delivery, one or more Physical Notes of like tenor and amount.




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          (d) In connection with the transfer of Global Notes as an entirety to Beneficial Owners
pursuant to paragraph (b), the Global Notes shall be deemed to be surrendered to the Trustee for
cancellation, and the Issuer shall execute, and the Trustee shall authenticate and deliver, to each
Beneficial Owner identified by the Depositary in writing in exchange for its beneficial interest in
the Global Notes, an equal aggregate principal amount of Physical Notes of authorized
denominations.




          (e) Any Physical Note constituting a Restricted Security delivered in exchange for an interest
in a Global Note pursuant to paragraph (b), (c) or (d) shall, except as otherwise provided by
paragraphs (a)(i)(x) and (c) of Section 2.17, bear the Private Placement Legend or, in the case of
the Regulation S Global Note, the legend set forth in Exhibit C, in each case, unless the
Issuer determines otherwise in compliance with applicable law.




          (f) On or prior to the end of the “distribution compliance period” (as defined in
Regulation S, the “Restricted Period”), a beneficial interest in a Regulation S Global Note may be
transferred to a Person who takes delivery in the form of an interest in the corresponding
Restricted Global Note only upon receipt by the Trustee of a written certification from the
transferor to the effect that such transfer is being made (i) (a) to a Person that the transferor
reasonably believes is a Qualified Institutional Buyer in a transaction meeting the requirements of
Rule 144A or (b) pursuant to another exemption from the registration requirements under the
Securities Act which is accompanied by an Opinion of Counsel regarding the availability of such
exemption and (ii) in accordance with all applicable securities laws of any state of the United
States or any other jurisdiction.




          (g) Beneficial interests in the Restricted Global Note may be transferred to a Person who
takes delivery in the form of an interest in the Regulation S Global Note, whether before or after
the expiration of the Restricted Period, only if the transferor first delivers to the Trustee a
written certificate to the effect that such transfer is being made in accordance with Regulation S
or Rule 144 (if available).




          (h) Any beneficial interest in one of the Global Notes that is transferred to a Person who
takes delivery in the form of an interest in another Global Note shall, upon transfer, cease to be
an interest in such Global Note and become an interest in such other Global Note and, accordingly,
shall thereafter be subject to all transfer restrictions and other procedures applicable to
beneficial interests in such other Global Note for as long as it remains such an interest.




          (i) The Holder of any 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.





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SECTION 2.17. Special Transfer Provisions.




          (a) Transfers to Non-QIB Institutional Accredited Investors and Non-U.S. Persons. The
following provisions shall apply with respect to the registration of any proposed transfer of a
Note constituting a Restricted Security to any Institutional Accredited Investor which is not a QIB
or to any Non-U.S. Person:





     (i) the Registrar shall register the transfer of any Note constituting a Restricted
Security, whether or not such Note bears the Private Placement Legend, if (x) the requested
transfer is after the second anniversary of the date of original issuance thereof or such
other date as such Note shall be freely transferable under Rule 144 as certified in an
Officers’ Certificate or (y) (1) in the case of a transfer to an Institutional Accredited
Investor which is not a QIB (excluding Non-U.S. Persons), the proposed transferee has
delivered to the Registrar a certificate substantially in the form of Exhibit E
hereto or (2) in the case of a transfer to a Non-U.S. Person (including a QIB), the proposed
transferor has delivered to the Registrar a certificate substantially in the form of
Exhibit F hereto; provided that, in the case of any transfer of a Note bearing the
Private Placement Legend for a Note not bearing the Private Placement Legend, the Registrar
has received an Officers’ Certificate authorizing such transfer; and;




     (ii) if the proposed transferor is an Agent Member holding a beneficial interest in a
Global Note, upon receipt by the Registrar of (x) the certificate, if any, required by
paragraph (i) above and (y) instructions given in accordance with the Depositary’s and the
Registrar’s procedures,


whereupon the Registrar shall reflect on its books and records (a) the date and (if the transfer
does not involve a transfer of outstanding Physical Notes) a decrease in the principal amount of a
Global Note in an amount equal to the principal amount of the beneficial interest in a Global Note
to be transferred, and (b) the date and an increase in the principal amount of a Global Note in an
amount equal to the principal amount of the beneficial interest in the Global Note transferred or
the Issuer shall execute and the Trustee shall authenticate and make available for delivery one or
more Physical Notes of like tenor and amount.




          (b) Transfers to QIBs. The following provisions shall apply with respect to the
registration or any proposed registration of transfer of a Note constituting a Restricted Security
to a QIB (excluding transfers to Non-U.S. Persons):





     (i) the Registrar shall register the transfer if such transfer is being made by a
proposed transferor who has checked the box provided for on such Holder’s Note stating,
or to a transferee who has advised the Issuer and the Registrar in writing, that it is
purchasing the Note for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a QIB within the meaning of
Rule 144A, and
is aware that the sale to it is being made in reliance on Rule 144A and



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acknowledges that it has received such information regarding the Issuer as it 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; and




     (ii) if the proposed transferee is an Agent Member, and the Notes to be transferred
consist of Physical Notes which after transfer are to be evidenced by an interest in the
Global Note, upon receipt by the Registrar of instructions given in accordance with the
Depositary’s and the Registrar’s procedures, the Registrar shall reflect on its books and
records the date and an increase in the principal amount of the Global Note in an amount
equal to the principal amount of the Physical Notes to be transferred, and the Trustee shall
cancel the Physical Notes so transferred.



          (c) Private Placement Legend. Upon the registration of transfer, exchange or
replacement of Notes not bearing the Private Placement Legend, the Registrar shall deliver Notes
that do not bear the Private Placement Legend. Upon the registration of transfer, exchange or
replacement of Notes bearing the Private Placement Legend, the Registrar shall deliver only Notes
that bear the Private Placement Legend unless (i) it has received the Officers’ Certificate
required by paragraph (a)(i)(y) of this Section 2.17, (ii) there is delivered to the Registrar an
Opinion of Counsel reasonably satisfactory to the Issuer and the Trustee 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 or (iii) such Note has been sold pursuant to an effective
registration statement under the Securities Act and the Registrar has received an Officers’
Certificate from the Issuer to such effect or such Note has been exchanged in the exchange offer
under the Registration Rights Agreement.




          (d) General. By its acceptance of any Note bearing the Private Placement Legend, each
Holder of such Note acknowledges the restrictions on transfer of such Note set forth in this
Indenture and in the Private Placement Legend and agrees that it will transfer such Note only as
provided in this Indenture.




          The Registrar shall retain for a period of two years copies of all letters, notices and other
written communications received pursuant to Section 2.16 or this Section 2.17. The Issuer 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 notice to the Registrar.




          The Trustee shall have no responsibility or obligation to any Beneficial Owner of a Global
Note, a member of, or a participant in the Depositary or other Person with respect to the accuracy
of the books or records, or the acts or omissions, of the Depositary or its nominee or of
any participant or member thereof, with respect to any ownership interest in the Notes or with
respect to the delivery to any participant, member, Beneficial Owner or other Person (other than
the Depository) of any notice (including any notice of redemption) or the payment of any amount,
under or with respect to such Notes. All notices and communications to be given to the



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Holders and
all payments to be made to Holders under the Notes shall be given or made only to or upon the order
of the registered Holders (which shall be the Depository or its nominee in the case of a Global
Note). The rights of Beneficial Owners in any Global Note shall be exercised only through the
Depositary subject to the applicable procedures of the Depositary. The Trustee may rely and shall
be fully protected in relying upon information furnished by the Depositary with respect to its
members, participants and any Beneficial Owners.




          The Trustee shall have no 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 Agent Members
or Beneficial Owners in any Global Note) other than to require delivery of such certificates and
other documentation or evidence as are expressly required by, and to do so if and when expressly
required by, the terms of this Indenture, and to examine the same to determine substantial
compliance as to form with the express requirements hereof.




SECTION 2.18. Computation of Interest.




          Interest on the Notes shall be computed on the basis of a 360-day year comprised of twelve
30-day months.




ARTICLE III




REDEMPTION




SECTION 3.01. Notices to Trustee.




          If the Issuer elects to redeem Notes pursuant to Section 5 of the Notes, it shall notify the
Trustee in writing of the Redemption Date, the Redemption Price and the principal amount of Notes
to be redeemed. Subject to Section 3.03, the Issuer shall give notice of redemption to the Paying
Agent and Trustee at least 30 days but not more than 60 days before the Redemption Date (unless a
shorter notice shall be agreed to by the Trustee in writing), together with an Officers’
Certificate stating that such redemption will comply with the conditions contained herein.




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SECTION 3.02. Selection of Notes To Be Redeemed.




          If less than all of the Notes are to be redeemed at any time, the Trustee will select Notes
for redemption as follows:





     (1) if the Notes are listed on any national securities exchange, in compliance with the
requirements of the principal national securities exchange on which the Notes are listed; or




     (2) if the Notes are not so listed on any national securities exchange, on a pro rata
basis, by lot or by such method as the Trustee shall deem fair and appropriate.




     No Notes of $1,000 or less shall be redeemed in part.



SECTION 3.03. Notice of Redemption.




          At least 30 days but not more than 60 days before a Redemption Date, the Issuer shall mail a
notice of redemption by first class mail, postage prepaid, to each Holder whose Notes are to be
redeemed at its registered address, except that redemption notices may be mailed 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. At the Issuer’s request, the Trustee shall forward
the notice of redemption in the Issuer’s name and at the Issuer’s expense; provided that, in such
case, the Trustee has received notice from the Issuer at least 45 days, but not more than 60 days,
before a Redemption Date (unless a shorter notice shall be agreed to in writing by the Trustee).
Notes called for redemption become due on the date fixed for redemption. On and after the
Redemption Date, interest ceases to accrue on Notes or portions of them called for redemption.
Each notice of redemption shall identify the Notes (including the CUSIP number) to be redeemed and
shall state:





     (1) the Redemption Date;




     (2) the Redemption Price and the amount of accrued interest, if any, to be paid;




     (3) the name and address of the Paying Agent;




     (4) that Notes called for redemption must be surrendered to the Paying Agent to collect
the Redemption Price plus accrued interest, if any;




     (5) that, unless the Issuer defaults in making the redemption payment, interest on the
Notes called for redemption ceases to accrue on and after the Redemption Date, and the only
remaining right of the Holders of such Notes is to receive payment of the Redemption Price
upon surrender to the Paying Agent of the Notes redeemed;



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     (6) if any Note is to be redeemed in part only, the portion of the principal amount
thereof to be redeemed and that a new Note in principal amount equal to the unredeemed
portion of the original Note will be issued in the name of the Holder thereof upon
cancellation of the original Note;




     (7) if fewer than all the Notes are to be redeemed, the identification of the
particular Notes (or portion thereof) to be redeemed, as well as the aggregate principal
amount of Notes to be redeemed and the aggregate principal amount of Notes to be outstanding
after such partial redemption; and




     (8) the Section of the Notes pursuant to which the Notes are to be redeemed.



          The notice, if mailed in a manner herein provided, shall be conclusively presumed to have been
given, whether or not the Holder receives such notice. In any case, failure to give such notice by
mail or any defect in the notice to the Holder of any Note designated for redemption in whole or in
part shall not affect the validity of the proceedings for the redemption of any other Note.
Notices of redemption may not be conditional.




SECTION 3.04. RESERVED.




SECTION 3.05. Effect of Notice of Redemption.




          Once notice of redemption is mailed in accordance with Section 3.03, Notes called for
redemption become due and payable on the Redemption Date and at the Redemption Price plus accrued
interest. Upon surrender to the Trustee or Paying Agent, such Notes called for redemption shall be
paid at the Redemption Price (which shall include accrued interest thereon to the Redemption Date),
but installments of interest, the maturity of which is on or prior to the Redemption Date, shall be
payable to Holders of record at the close of business on the relevant Record Dates. On and after
the Redemption Date interest ceases to accrue on Notes or portions of them called for redemption.




SECTION 3.06. Deposit of Redemption Price.




          On or before 10:00 a.m. New York time on the Redemption Date, the Issuer shall deposit with
the Paying Agent U.S. Legal Tender sufficient to pay the Redemption Price plus accrued interest, of
all Notes to be redeemed on that date.




          If the Issuer complies with the preceding paragraph, then, unless the Issuer defaults in the
payment of such Redemption Price plus accrued interest, interest ceases to accrue on Notes or
portions of them called for redemption on and after the applicable Redemption Date, whether or not
such Notes are presented for payment.




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SECTION 3.07. Notes Redeemed in Part.




          If any Note is to be redeemed in part only, the notice of redemption that relates to such Note
shall state the portion of the principal amount thereof to be redeemed. A new Note in principal
amount equal to the unredeemed portion of the original Note shall be issued in the name of the
Holder thereof upon cancellation of the original Note.




ARTICLE IV




COVENANTS




SECTION 4.01. Payment of Notes.




          (a) The Issuer shall pay the principal of (and premium, if any) and interest on the Notes on
the dates and in the manner provided in the Notes and this Indenture. An installment of principal
of (and premium, if any) or interest on the Notes shall be considered paid on the date it is due if
the Trustee or Paying Agent (other than the Issuer or an Affiliate thereof) holds on that date U.S.
Legal Tender designated for and sufficient to pay the installment.




          (b) The Issuer shall pay interest on overdue principal amount (including, without limitation,
post petition interest in a proceeding under any Bankruptcy Law), and overdue interest, to the
extent lawful, at the same rate per annum borne by the Notes.




          SECTION 4.02. Maintenance of Office or Agency.




          (a) The Issuer shall maintain in the Borough of Manhattan, The City of New York, the office or
agency required under Section 2.04. The Issuer shall give prompt written notice to the Trustee of
the location, and any change in the location, of such office or agency. If at any time the Issuer
shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with
the address thereof, such presentations, surrenders, notices and demands may be made or served at
the address of the Trustee set forth in Section 12.02.




          (b) The Issuer may also from time to time designate one or more other offices or agencies
where the Notes may be presented or surrendered for any or all such purposes and may from time to
time rescind such designations. The Issuer will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such other office or
agency.




          (c) The Issuer hereby initially designates U.S. Bank Trust National Association, 100 Wall
Street, Suite 1600, New York, NY 10005 as one such office or agency of the Issuer in accordance
with Section 2.04.




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SECTION 4.03. Corporate Existence.




          Except as otherwise permitted by Article V, the Issuer shall do or cause to be done all things
necessary to preserve and keep in full force and effect its corporate existence in accordance with
its organizational documents and the rights (charter and statutory) and material franchises of the
Issuer.




SECTION 4.04. Payment of Taxes and Other Claims.




          The Issuer shall, and shall cause each of its Restricted Subsidiaries to, pay or discharge or
cause to be paid or discharged, before the same shall become delinquent, (a) all material taxes,
assessments and governmental charges levied or imposed upon it or any of its Restricted
Subsidiaries or upon the income, profits or property of it or any of its Restricted Subsidiaries
and (b) all lawful claims for labor, materials and supplies which, in each case, if unpaid, might
by law become a material liability or Lien upon the property of it or any of its Restricted
Subsidiaries; provided, however, that the Issuer shall not be required to pay or discharge or cause
to be paid or discharged any such tax, assessment, charge or claim whose amount, applicability or
validity is being contested in good faith by appropriate actions.




SECTION 4.05. Maintenance of Properties and Insurance.




          (a) The Issuer shall cause all material properties owned by or leased by it or any of its
Restricted Subsidiaries used or useful to the conduct of its business or the business of any of its
Restricted Subsidiaries to be maintained and kept in normal condition, repair and working order and
supplied with all necessary equipment and shall cause to be made all repairs, renewals,
replacements, and betterments thereof, all as in its judgment may be necessary, so that the
business carried on in connection therewith may be properly and advantageously conducted at all
times; provided, however, that nothing in this Section 4.05 shall prevent the Issuer or any of its
Restricted Subsidiaries from discontinuing the use, operation or maintenance of any of such
properties, or disposing of any of them, if such discontinuance or disposal is, in the judgment of
the management of the Issuer or any such Restricted Subsidiary desirable in the conduct of the
business of the Issuer or any such Restricted Subsidiary; provided, further, that nothing in this
Section 4.05 shall prevent the Issuer or any of its Restricted Subsidiaries from discontinuing or
disposing of any properties to the extent otherwise permitted by this Indenture.




          (b) The Issuer shall maintain, and shall cause its Restricted Subsidiaries to maintain,
insurance with responsible carriers against such risks and in such amounts, and with such
deductibles, retentions, self-insured amounts and co-insurance provisions, as are customarily
carried by similar businesses of similar size, including property and casualty loss, workers’
compensation and interruption of business insurance.




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SECTION 4.06. Compliance Certificate; Notice of Default.




          (a) The Issuer shall deliver to the Trustee, within 120 days after the close of each fiscal
year commencing with the fiscal year ending December 31, 2004, an Officers’ Certificate stating
that a review of the activities of the Issuer and its Subsidiaries has been made under the
supervision of the signing Officers with a view to determining whether the Issuer has kept,
observed, performed and fulfilled its obligations under this Indenture and further stating, as to
each such Officer signing such certificate, that to the best of such Officer’s knowledge, the
Issuer during such preceding fiscal year has kept, observed, performed and fulfilled each and every
such covenant and no Default occurred during such year and at the date of such certificate there is
no Default that has occurred and is continuing or, if such signers do know of such Default, the
certificate shall describe its status with particularity. The Officers’ Certificate shall also
notify the Trustee should the Issuer elect to change the manner in which it fixes its fiscal year
end.




          (b) The Issuer shall deliver to the Trustee as soon as possible, and in any event within
fifteen days after the Issuer becomes aware of the occurrence of any Default or Event of Default,
an Officers’ Certificate specifying the Default or Event of Default and describing its status with
particularity and the action proposed to be taken thereto.




          (c) The Issuer’s fiscal years currently end on December 31. The Issuer will provide written
notice to the Trustee of any change in its fiscal year.




SECTION 4.07. RESERVED




SECTION 4.08. Waiver of Stay, Extension or Usury Laws.




          The Issuer covenants (to the extent permitted by applicable law) that it will not at any time
insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay
or extension law or any usury law or other law that would prohibit or forgive the Issuer from
paying all or any portion of the principal of, premium, if any, and/or interest on the Notes as
contemplated herein, wherever enacted, now or at any time hereafter in force, or which may affect
the covenants or the performance of this Indenture, and (to the extent permitted by applicable law)
the Issuer hereby expressly waives all benefit or advantage of any such law, and covenants that it
will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law had been enacted.




SECTION 4.09. Change of Control.




          (a) Upon the occurrence of a Change of Control, each Holder of Notes will have the right to
require the Issuer to repurchase all or any part (equal to $1,000 or an integral multiple thereof)
of such Holder’s Notes pursuant to an offer (the “Change of Control Offer”) on the terms set forth
in this Indenture. In the Change of Control Offer, the Issuer will offer a




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payment in cash equal to 101% of the aggregate principal amount of Notes repurchased plus
accrued and unpaid interest, thereon, to the date of purchase (the “Change of Control Payment”).




          (b) Within 30 days following any Change of Control, the Issuer shall mail a notice to each
Holder stating:





     (i) that the Change of Control Offer is being made pursuant to this Section 4.09 and
that all Notes tendered will be accepted for payment;




     (ii) the amount of the Change of Control Payment and the purchase date (the “Change of
Control Payment Date”), which may not be earlier than 30 days nor later than 60 days from
the date such notice is mailed;




     (iii) that any Note not tendered will continue to accrue interest;




     (iv) that, unless the Issuer defaults in the payment thereof, all Notes accepted for
payment pursuant to the Change of Control Offer will cease to accrue interest on and after
the Change of Control Payment Date;




     (v) that Holders electing to have any Notes purchased pursuant to a Change of Control
Offer will be required to surrender the Notes to be purchased to the Paying Agent 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;




     (vi) that Holders will be entitled to withdraw Notes they have tendered on the terms
and conditions set forth in such notice; and




     (vii) that Holders whose Notes are being purchased only in part will be issued new
Notes (or book-entry notation made with respect thereto) equal in principal amount to the
unpurchased portion of the Notes tendered; provided that the portion of each Note purchased
and each such new Note issued (or book-entry notation, if applicable) shall be in a
principal amount of $1,000 or an integral multiple thereof.



          (c) On the Change of Control Payment Date, the Issuer will, to the extent lawful:





     (i) accept for payment all Notes or portions thereof tendered pursuant to the Change of
Control Offer and not withdrawn;




     (ii) deposit with the Paying Agent an amount equal to the Change of Control Payment in
respect of all Notes or portions thereof so tendered and not withdrawn; and



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     (iii) deliver or cause to be delivered to the Trustee all Notes so accepted with an
Officers’ Certificate stating the aggregate principal amount of Notes or portions thereof
being purchased by the Issuer.



          (d) The Paying Agent will promptly mail to each Holder of Notes so tendered and not withdrawn
the Change of Control Payment for such Notes, and the Trustee will promptly authenticate and mail
(or cause to be transferred by book entry) to such Holder a new Note equal in principal amount to
any unpurchased portion of the Notes surrendered, if any; provided, that each such new Note shall
be in a principal amount of $1,000 or an integral multiple thereof.




          (e) RESERVED.




          (f) Notwithstanding the foregoing, the Issuer will not be required to make a Change of Control
Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at
the times and otherwise in compliance with the requirements set forth in this Indenture applicable
to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not
withdrawn under such Change of Control Offer. 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 of the Change of Control Offer. Notes repurchased
pursuant to a Change of Control Offer will be retired and cancelled.




          (g) The Issuer will publicly announce the results of the Change of Control Offer on or as soon
as practicable after the Change of Control Payment Date. The Issuer will comply, and will cause
any third party making a Change of Control Offer to comply, with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations thereunder to the extent such
laws and regulations are applicable in connection with the repurchase of Notes triggered by a
Change of Control Offer. To the extent the provisions of any applicable securities laws or
regulations conflict with Change of Control provisions of this Indenture, the Issuer will comply
with the applicable securities laws and regulations and will not be deemed to have breached its
obligations under this Indenture by virtue of complying with such laws and regulations.




SECTION 4.10. Incurrence of Indebtedness and Issuance of Preferred Stock.




          (a) The Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, directly
or indirectly, create, incur, issue, assume, Guarantee or otherwise become directly or indirectly
liable, contingently or otherwise, with respect to (collectively, “incur”) any Indebtedness
(including Acquired Debt), and the Issuer will not issue any Disqualified Stock and the Issuer will
not permit any of its Restricted Subsidiaries to issue any Disqualified Stock or preferred stock;
provided, however, that the Issuer and the Guarantors may incur Indebtedness (including Acquired
Debt) or issue Disqualified Stock and the Guarantors may issue preferred stock, if the Fixed Charge
Coverage Ratio for the Issuer’s most recently ended four full fiscal




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quarters for which internal financial statements are available immediately preceding the date
on which such additional Indebtedness is incurred or such Disqualified Stock or preferred stock is
issued would have been at least 2.00 to 1, determined on a pro forma basis (including a pro forma
application of the net proceeds therefrom), as if the additional Indebtedness had been incurred
Disqualified Stock or preferred stock had been issued, as the case may be, at the beginning of such
four-quarter period.




          (b) Section 4.10(a) will not prohibit the incurrence of any of the following items of
Indebtedness (collectively, “Permitted Debt”):





     (1) (a) the incurrence by the Issuer or any Guarantor of Indebtedness under Credit
Facilities (and the incurrence by the Guarantors of Guarantees thereof) in an aggregate
principal amount at any one time outstanding (with letters of credit being deemed to have a
principal amount equal to the maximum potential liability of the Issuer and the Guarantors
thereunder) not to exceed the sum of (x) $300.0 million plus (y) the aggregate principal
amount of the Notes purchased, redeemed or otherwise acquired or retired for value by the
Issuer after the Issue Date through the date of incurrence and (b) the incurrence by the
Issuer or any Guarantor of additional Indebtedness under Credit Facilities (and the
incurrence by the Guarantors of Guarantees thereof) in an aggregate principal amount at any
one time outstanding (with letters of credit being deemed to have a principal amount equal
to the maximum potential liability of the Issuer and the Guarantors thereunder) not to
exceed the amount, if any, by which (x) the amount of the Borrowing Base as of the date of
such incurrence exceeds (y) the aggregate amount of Indebtedness permitted to be incurred
pursuant to the immediately preceding clause (a) as of the date of such incurrence, less, in
the case of clause (a), the aggregate amount of all Net Proceeds of Asset Sales, applied by
the Issuer or any Guarantor to repay any Indebtedness under Credit Facilities (and, in the
case of any revolving credit Indebtedness under a Credit Facility, to effect a corresponding
commitment reduction thereunder) pursuant to Section 4.13 and, in the case of each of
clauses (a) and (b), less amounts outstanding under any Qualified Receivables Transactions;




     (2) the incurrence by the Issuer or any Guarantors of the Existing Indebtedness;




     (3) the incurrence by the Issuer and its Restricted Subsidiaries of Indebtedness
represented by the Notes to be issued on the date of this Indenture and related Note
Guarantees, the Exchange Notes and the related Note Guarantees to be issued pursuant to the
Registration Rights Agreement; and any Exchange Notes issued by the Issuer in exchange for
Additional Notes, if any, issued in compliance with this Indenture and pursuant to a
registered exchange offer and the related Note Guarantees;




     (4) the incurrence by the Issuer or any of its Restricted Subsidiaries of Indebtedness
represented by Capital Lease Obligations, mortgage financings or purchase



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money obligations, in each case, incurred for the purpose of financing all or any part
of the purchase price, or cost of construction or improvement, of property (real or
personal), plant or equipment used in the business of the Issuer or any of its Restricted
Subsidiaries in an aggregate principal amount, including all Permitted Refinancing
Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to
this clause (4), not to exceed, at any time outstanding, the greater of (x) $30.0 million or
(y) 3% of Consolidated Tangible Assets of the Issuer;




     (5) the incurrence by the Issuer or any of its Restricted Subsidiaries of Permitted
Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund,
refinance or replace Indebtedness (other than intercompany Indebtedness) that is permitted
by this Indenture to be incurred under Section 4.10(a) or clauses (2), (3), (4), (5), (15)
or (16) of this Section 4.10(b);




     (6) the incurrence by the Issuer or any of its Restricted Subsidiaries of intercompany
Indebtedness between or among the Issuer and any of its Restricted Subsidiaries; provided,
however, that:




     (a) if the Issuer or any Guarantor is the obligor on such Indebtedness, and
such Indebtedness is owed to a Restricted Subsidiary that is not a Guarantor, such
Indebtedness must be expressly subordinated to the prior payment in full in cash of
all Obligations with respect to the Notes, in the case of the Issuer, or the Note
Guarantee, in the case of a Guarantor; and




     (b) (i) any subsequent issuance or transfer of Equity Interests that results in
any such Indebtedness being held by a Person other than the Issuer or a Restricted
Subsidiary thereof and (ii) any sale or other transfer of any such Indebtedness to a
Person that is not either the Issuer or a Restricted Subsidiary thereof, shall be
deemed, in each case, to constitute an incurrence of such Indebtedness by the Issuer
or such Restricted Subsidiary, as the case may be, that was not permitted by this
clause (6);




     (7) the incurrence by the Issuer or any of its Restricted Subsidiaries of Hedging
Obligations that are incurred in the ordinary course of business for the purpose of fixing,
hedging or swapping interest rate, commodity price or foreign currency exchange rate risk
(or to reverse or amend any such agreements previously made for such purposes), and not for
speculative purposes, and that do not increase the Indebtedness of the obligor outstanding
at any time other than as a result of fluctuations in interest rates, commodity prices or
foreign currency exchange rates or by reason of fees, indemnities and compensation payable
thereunder;




     (8) the Guarantee by the Issuer or any Restricted Subsidiary of Indebtedness of the
Issuer or a Restricted Subsidiary of the Issuer that was permitted to be incurred by



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another provision of this Section 4.10; provided that, in the case of a Guarantee of
any Restricted Subsidiary that is not a Guarantor, such Restricted Subsidiary complies with
Section 4.16;




     (9) the accrual of interest, the accretion or amortization of original issue discount,
the payment of interest on any Indebtedness in the form of additional Indebtedness with the
same terms, and the payment of dividends on Disqualified Stock or preferred stock in the
form of additional shares of the same class of Disqualified Stock or preferred stock will
not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or
preferred stock for purposes of this Section 4.10; provided, in each such case, that the
amount thereof is included in Fixed Charges of the Issuer as accrued;




     (10) the incurrence by the Issuer’s Unrestricted Subsidiaries of Non-Recourse Debt;
provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of an
Unrestricted Subsidiary, such event shall be deemed to constitute an incurrence of
Indebtedness by a Restricted Subsidiary of the Issuer that was not permitted by this clause
(10);




     (11) the incurrence by the Issuer or any of its Restricted Subsidiaries of Indebtedness
constituting reimbursement obligations with respect to letters of credit issued in the
ordinary course of business, including, without limitation, letters of credit in respect of
workers’ compensation claims or self-insurance, or other Indebtedness with respect to
reimbursement type obligations regarding workers’ compensation claims or self-insurance;
provided, however, that, upon the drawing of such letters of credit or the incurrence of
such Indebtedness, such obligations are reimbursed within 30 days following such drawing or
incurrence;




     (12) the incurrence by the Issuer or any of its Restricted Subsidiaries of Indebtedness
arising from agreements of the Issuer or such Restricted Subsidiary providing for
indemnification, adjustment of purchase price or similar obligations, in each case, incurred
or assumed in connection with the disposition of any business, assets or Capital Stock of
the Issuer or a Restricted Subsidiary, other than Guarantees of Indebtedness incurred by any
Person acquiring all or any portion of such business, assets or a Subsidiary for the purpose
of financing such acquisition; provided that:




     (a) such Indebtedness is not reflected on the balance sheet of the Issuer or
any Restricted Subsidiary (contingent obligations referred to in a footnote or
footnotes to financial statements and not otherwise reflected on the balance sheet
will not be deemed to be reflected on that balance sheet for purposes of this clause
(a)); and




     (b) the maximum assumable liability in respect of that Indebtedness shall at no
time exceed the gross proceeds including noncash proceeds (the fair



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market value of those noncash proceeds being measured at the time received and
without giving effect to any subsequent changes in value) actually received by the
Issuer and/or that Restricted Subsidiary in connection with that disposition;




     (13) the issuance of Disqualified Stock or preferred stock by any of the Issuer’s
Restricted Subsidiaries issued to the Issuer or another Restricted Subsidiary; provided that
(i) any subsequent issuance or transfer of any Equity Securities that results in such
Disqualified Stock or preferred stock being held by a Person other than the Issuer or a
Restricted Subsidiary thereof and (ii) any sale or other transfer of any such shares of
Disqualified Stock or preferred stock to a Person that is not either the Issuer or a
Restricted Subsidiary thereof shall be deemed, in each case, to constitute an issuance of
such shares of Disqualified Stock or preferred stock that was not permitted by this clause
(13);




     (14) the incurrence by the Issuer or any of its Restricted Subsidiaries of obligations
in respect of performance and surety bonds and completion Guarantees provided by the Issuer
or such Restricted Subsidiary in the ordinary course of business;




     (15) the incurrence by the Issuer or any Guarantor of Indebtedness in an aggregate
principal amount (or accreted value, as applicable) at any time outstanding, including all
Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness
incurred pursuant to this clause (15), not to exceed $75.0 million;




     (16) the incurrence by the Foreign Restricted Subsidiaries of the Issuer of
Indebtedness in an aggregate principal amount at any one time outstanding (with letters of
credit being deemed to have a principal amount equal to the maximum potential liability of
the Restricted Subsidiaries thereunder), including all Permitted Refinancing Indebtedness
incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause
(16), not to exceed $50.0 million;




     (17) the incurrence of any Indebtedness by a Receivables Subsidiary that is not
recourse to the Issuer or any other Restricted Subsidiary of the Issuer (other than Standard
Securitization Undertakings) incurred in connection with a Qualified Receivables
Transaction; provided, that, the aggregate amount of Indebtedness under this clause (17),
when aggregated with all Indebtedness outstanding under Section 4.10(b)(1), shall not exceed
the maximum amount permitted under Section 4.10(b)(1);




     (18) contingent liabilities arising out of endorsements of checks and other negotiable
instruments for deposit or collection in the ordinary course of business;




     (19) the incurrence by the Issuer of Indebtedness to effect the repurchase, redemption
or other acquisition or retirement for value of any Equity Interests of the Issuer or any
Parent, in each case held by any former or current employees, officers,



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directors or consultants of the Issuer or any of its Restricted Subsidiaries or their
respective estates, spouses, former spouses or family members under any management equity
plan or stock option or other management or employee benefit plan upon the death, disability
or termination of employment of such Persons in an aggregate amount at any one time
outstanding not to exceed the maximum amount of such acquisitions pursuant to Section
4.11(b)(5);




     (20) the incurrence of Indebtedness of the Issuer or any Restricted Subsidiary
supported by a letter of credit issued pursuant to the Credit Agreement in a principal
amount not in excess of the stated amount of such letter of credit; and




     (21) contingent liabilities arising out of endorsements of checks and other negotiable
instruments for deposit or collection in the ordinary course of business.


For purposes of determining compliance with this Section 4.10, in the event that any proposed
Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in
clauses (1) through (21) above, or is entitled to be incurred pursuant to Section 4.10(a), the
Issuer will be permitted to classify such item of Indebtedness on the date of its incurrence, and
from time to time may reclassify, in any manner that complies with this Section 4.10 at such time.
Indebtedness under the Credit Agreement on date of this Indenture shall be deemed to have been
incurred on such date pursuant to Section 4.10(b)(1).




SECTION 4.11. Limitation on Restricted Payments.




          (a) The Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, directly
or indirectly:





     (I) declare or pay any dividend or make any other payment or distribution on account of
the Issuer’s or any of its Restricted Subsidiaries’ Equity Interests (including, without
limitation, any payment in connection with any merger or consolidation involving the Issuer
or any of its Restricted Subsidiaries), other than dividends or distributions payable in
Equity Interests (other than Disqualified Stock) of the Issuer or to the Issuer or a
Restricted Subsidiary of the Issuer;




     (II) purchase, redeem or otherwise acquire or retire for value (including, without
limitation, in connection with any merger or consolidation involving the Issuer) any Equity
Interests of the Issuer or any Parent;




     (III) make any payment of principal or premium on or with respect to, or purchase,
redeem, defease or otherwise acquire or retire for value, any Indebtedness that is
subordinated to the Notes or the Note Guarantees prior to scheduled maturity, scheduled
repayment or scheduled sinking fund payment (other than (A) from the Issuer or a Restricted
Subsidiary or (B) the purchase, repurchase, redemption, defeasance or other acquisition or
retirement of such subordinated Indebtedness purchased in



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anticipation of satisfying a sinking fund obligation, principal installment or final
maturity, in each case due within one year of the date of such purchase, repurchase,
redemption, defeasance or other acquisition or retirement); or




     (IV) make any Restricted Investment (all such payments and other actions set forth in
clause (I) through (IV) above being collectively referred to as “Restricted Payments”),



          unless, at the time of and after giving effect to such Restricted Payment:





     (1) no Default or Event of Default shall have occurred and be continuing or would occur
as a consequence thereof; and




     (2) the Issuer would, at the time of such Restricted Payment and after giving pro forma
effect thereto as if such Restricted Payment had been made at the beginning of the
applicable four-quarter period, have been permitted to incur at least $1.00 of additional
Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.10(a);
and




     (3) such Restricted Payment, together with the aggregate amount of all other Restricted
Payments made by the Issuer and its Restricted Subsidiaries after the date of the 81/2% Notes
Indenture (excluding Restricted Payments permitted by clauses (2), (3), (4), (5), (6), (7),
(8), (9), (10), (11), (13), (14) and (15) of Section 4.11(b)), is less than the sum, without
duplication, of:




     (a) 50% of the Consolidated Net Income of the Issuer for the period (taken as
one accounting period) beginning on the date of the 81/2% Notes Indenture and ending
on the date of the Issuer’s most recently ended fiscal quarter for which internal
financial statements are available at the time of such Restricted Payment (provided,
that, if the amount of Consolidated Net Income as so calculated divided by the
number of full fiscal quarters in such period exceeds $5.25 million, then such
amount shall equal (i) 50% of the product of $5.25 million multiplied by the number
of full fiscal quarters in such period plus (ii) 75% of the amount in excess of the
product of $5.25 million multiplied by the number of full fiscal quarters in such
period) (or, if such Consolidated Net Income for such period is a deficit, less 100%
of such deficit); plus




     (b) 100% of the aggregate net proceeds (including the fair market value of
property) received by the Issuer subsequent to the date of the 81/2% Notes Indenture
as a contribution to its common equity capital or from the issue or sale of Equity
Interests of the Issuer (other than Excluded Contributions or net proceeds from the
issue and sale of Disqualified Stock) or from the issue or sale of convertible or
exchangeable Disqualified Stock or convertible or exchangeable



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debt securities of the Issuer that have been converted into or exchanged for
such Equity Interests (other than Equity Interests (or Disqualified Stock or debt
securities) sold to a Restricted Subsidiary of the Issuer); plus




     (c) in an amount equal to the net reduction in Restricted Investments by the
Issuer and its Restricted Subsidiaries, subsequent to the date of the 81/2% Notes
Indenture, resulting from payments of interests on Indebtedness, dividends,
repayments of loans or advances or other transfers of assets, in each case to the
Issuer or any such Restricted Subsidiary from any such Investment, or from the net
cash proceeds from the sale of any such Investment, or from a designation of an
Unrestricted Subsidiary to a Restricted Subsidiary, but only if and to the extent
such amounts are not included in the calculation of Consolidated Net Income and not
to exceed in the case of any Investment the amount of the Restricted Investment
previously made by the Issuer or any Restricted Subsidiary in such Person or
Unrestricted Subsidiary; provided that 50% (or, if subclause (a)(ii) of this clause
(3) is applicable to the period in which such amounts are received, 75%) of amounts
in excess of the amount of the Investment previously made may be added to the
amounts otherwise available under this clause (c) to make Restricted Investments
pursuant to this clause (3).




     (b) Section 4.11(a) will not prohibit:




     (1) the payment of any dividend within 60 days after the date of declaration thereof,
if at said date of declaration such payment would have complied with the provisions of this
Indenture;




     (2) the redemption, repurchase, retirement, defeasance or other acquisition of any
subordinated Indebtedness of the Issuer or any Restricted Subsidiary or of any Equity
Interests of the Issuer or any Parent in exchange for, or out of the net cash proceeds of
the substantially concurrent sale (other than to a Restricted Subsidiary of the Issuer) of,
Equity Interests of the Issuer other than Disqualified Stock (and any distribution, loan or
advance of such net cash proceeds to any Parent for such purpose) or out of contributions to
the equity capital of the Issuer (other than Disqualified Stock); provided that the amount
of any such net proceeds that are utilized for any such redemption, repurchase, retirement,
defeasance or other acquisition shall be excluded from Section 4.11(a)(3)(b);




     (3) the repayment, defeasance, redemption, repurchase or other acquisition of
subordinated Indebtedness of the Issuer or any Restricted Subsidiary with the net cash
proceeds from an incurrence of Permitted Refinancing Indebtedness;




     (4) the payment of any dividend by a Restricted Subsidiary of the Issuer to the holders
of any series or class of its common Equity Interests on a pro rata basis;



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     (5) the repurchase, redemption or other acquisition or retirement for value of any
Equity Interests of the Issuer and any distribution, loan or advance to any Parent for the
repurchase, redemption or other acquisition or retirement for value of any Equity Interests
of any Parent, in each case held by any former or current employees, officers, directors or
consultants of the Issuer or any of its Restricted Subsidiaries or their respective estates,
spouses, former spouses or family members under any management equity plan or stock option
or other management or employee benefit plan upon the death, disability or termination of
employment of such Persons, in an amount not to exceed $7.50 million in any calendar year;
provided that such amount in any calendar year may be increased by an amount not to exceed
(i) the net cash proceeds from the sale of Equity Interests (other than Disqualified Stock)
of the Issuer (or any Parent to the extent such net cash proceeds are contributed to the
common equity of the Issuer) to employees, officers, directors or consultants of the Issuer
and its Restricted Subsidiaries that occurs after the date of the 81/2% Notes Indenture to the
extent the cash proceeds from the sale of such Equity Interests have not otherwise been
applied to the payment of Restricted Payments pursuant to clause (2) above or previously
applied to the payment of Restricted Payments pursuant to this clause (5) plus (ii) the cash
proceeds of key man life insurance policies received by the Issuer and its Restricted
Subsidiaries after the date of the 81/2% Notes Indenture less any amounts previously applied
to the payment of Restricted Payments pursuant to this clause (5); provided, further, that
cancellation of Indebtedness owing to the Issuer from employees, officers, directors and
consultants of the Issuer or any of its Restricted Subsidiaries in connection with a
repurchase of Equity Interests of the Issuer from such Persons will not be deemed to
constitute a Restricted Payment for purposes of this Section 4.11 or any other provisions of
this Indenture to the extent that the proceeds received from the sale of such Equity
Interests were excluded from Section 4.11(a)(3)(b); provided, further, that the net cash
proceeds from such sales of Equity Interests described in subclause (i) of this clause (5)
shall be excluded from Section 4.11(a)(3)(b) to the extent such proceeds have been or are
applied to the payment of Restricted Payments pursuant to this clause (5);




     (6) the payment of dividends or other distributions or the making of loans or advances
to any Parent in amounts required for any Parent to pay franchise taxes and other fees
required to maintain its existence and provide for all other operating costs of any Parent
to the extent attributable to the ownership or operation of the Issuer and its Restricted
Subsidiaries, including, without limitation, in respect of director fees and expenses,
administrative, legal and accounting services provided by third parties and other costs and
expenses including all costs and expenses with respect to filings with the Commission plus
any indemnification claims made by directors or officers of any Parent attributable to the
ownership or operation of the Issuer and its Restricted Subsidiaries;




     (7) the payment of dividends or other distributions by the Issuer to any Parent in
amounts required to pay the tax obligations of any Parent attributable to the Issuer and its
Subsidiaries determined as if the Issuer and its Subsidiaries had filed a separate



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consolidated, combined or unitary return for the relevant taxing jurisdiction; provided
that any refunds received by any Parent attributable to the Issuer or any of its
Subsidiaries shall promptly be returned by any Parent to the Issuer through a contribution
to the common equity of, or the purchase of common stock (other than Disqualified Stock) of
the Issuer from, the Issuer; and provided, further, that the amount of any such contribution
or purchase shall be excluded from Section 4.11(a)(3)(b);




     (8) repurchases of Capital Stock deemed to occur upon the cashless exercise of stock
options and warrants;




     (9) other Restricted Payments not otherwise permitted pursuant to this Section 4.11 in
an aggregate amount not to exceed $50.0 million;




     (10) the declaration and payment of dividends and distributions to holders of any class
or series of Disqualified Stock of the Issuer or any of its Restricted Subsidiaries issued
or incurred in accordance with Section 4.10;




     (11) Investments that are made with Excluded Contributions;




     (12) following the first Public Equity Offering of the Issuer or any Parent after the
date of this Indenture, the payment of dividends on the Issuer’s common stock (and, in the
case of a Public Equity Offering of any Parent, solely for the purpose of paying dividends
on such Parent’s common stock) in an amount not to exceed 6% per annum of the gross proceeds
of such Public Equity Offering received by or contributed to the common equity capital of,
the Issuer (other than any such gross proceeds constituting Excluded Contributions);




     (13) upon the occurrence of a Change of Control or Asset Sale and within 60 days after
completion of the offer to repurchase Notes pursuant to Section 4.09 and Section 4.13
(including the purchase of all Notes tendered), any purchase or redemption of Indebtedness
of the Issuer subordinated to the Notes that is required to be repurchased or redeemed
pursuant to the terms thereof as a result of such Change of Control or Asset Sale, at a
purchase price not greater than 101% of the outstanding principal amount thereof (plus
accrued and unpaid interest);




     (14) the payment of dividends or other distributions by the Issuer to any Parent in
amounts required for any Parent to pay any expenses incurred in connection with
unconsummated offerings of debt securities or Equity Interests of any Parent; and




     (15) the payment of dividends or other distributions by the Issuer to any Parent in an
aggregate amount equal to any reduction in taxes realized by the Issuer and its Restricted
Subsidiaries in the form of refunds or deductions realized in connection with or otherwise
resulting from the 2004 Transactions;



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provided, however, that in the case of clauses (2), (3), (5), (9), (10), (12), (13), (14) and (15)
of this Section 4.11, no Default or Event of Default has occurred and is continuing.




          (c) The amount of all Restricted Payments (other than cash) shall be the fair market value on
the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or
issued to or by the Issuer or such Subsidiary, as the case may be, pursuant to the Restricted
Payment. The fair market value of any assets or securities that are required to be valued by this
Section 4.11 shall, if the fair market value thereof exceeds $10.0 million, be determined by the
Board of Directors whose resolution with respect thereto shall be delivered to the Trustee. The
Board of Directors’ determination must be based upon an opinion or appraisal issued by an
accounting, appraisal or investment banking firm of national standing (an “Independent Financial
Advisor”) if the fair market value exceeds $25.0 million. If any fairness opinion or appraisal is
required by this Indenture in connection with any Restricted Payments, the Issuer shall deliver to
the Trustee an Officers’ Certificate stating that such Restricted Payment is permitted and setting
forth the basis upon which the calculations required by this Section 4.11 were computed, together
with a copy of such fairness opinion or appraisal.




          (d) Notwithstanding the foregoing provisions of this Section 4.11, neither the Issuer nor its
Restricted Subsidiaries may make a Restricted Payment (including the repurchase, redemption or
other acquisition or retirement for value of any Equity Interests of the Issuer or any
distribution, loan or advance to any Parent) for the purposes, directly or indirectly, of funding
the repurchase, redemption or other acquisition or retirement for value of, or payment of dividends
or distribution on, any Equity Interests of, or making any Investment in the holder of any Equity
Interests in, any Parent, in each case by means of utilization of the cumulative Restricted Payment
credit provided by Section 4.11(a), or the exceptions provided by clauses (1), (9) or (15) of
Section 4.11(b).




SECTION 4.12. Limitation on Liens.




          The Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, create,
incur, assume or otherwise cause or suffer to exist or become effective any Lien (the “Initial
Lien”) of any kind upon any of their property or assets, now owned or hereafter acquired, except:





     (1) in the case of the Notes Collateral, any Initial Lien if (i) such Initial Lien
expressly ranks junior to the first-priority security interest intended to be created in
favor of the Collateral Agent for the benefit of the Trustee and the Holders of the Notes
pursuant to the Security Documents; provided, however, that the terms of such junior
interest will be no more favorable to the beneficiaries thereof than the terms contained in
the Intercreditor Agreement; or (ii) such Initial Lien is a Permitted Collateral Lien;



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     (2) in the case of the ABL Collateral, any Initial Lien if (i) the Notes are equally
and ratably secured on a second priority basis by such ABL Collateral until such time as
such Initial Lien is released or (ii) such Initial Lien is a Permitted Lien; and




     (3) in the case of any other asset or property, any Initial Lien if (i) the Notes are
equally and ratably secured with (or on a senior basis to, in the case such Initial Lien
secures any Subordinated Indebtedness) the obligations secured by such Initial Lien or (ii)
such Initial Lien is a Permitted Lien.



          Any Lien created for the benefit of the Holders of the Notes pursuant to clause (2) or (3) of
this Section 4.12 shall be automatically and unconditionally released and discharged upon the
release and discharge of the Initial Lien which release and discharge in the case of any sale of
any such asset or property shall not affect any Lien that the Collateral Agent may have on the
proceeds from such sale.




SECTION 4.13. Asset Sales.




          (a) The Issuer shall not, and shall not permit any of its Restricted Subsidiaries to,
consummate an Asset Sale of any Notes Collateral unless:





     (1) the Issuer (or such Restricted Subsidiary, as the case may be) receives
consideration at the time of such Asset Sale at least equal to the fair market value of the
assets or Equity Interests issued or sold or otherwise disposed of;




     (2) in the case of Asset Sales involving consideration in excess of $10.0 million, such
fair market value is determined by the Issuer’s Board of Directors and evidenced by a
resolution of the Board of Directors set forth in an Officers’ Certificate delivered to the
Trustee; and




     (3) at least 75% of the consideration therefor received by the Issuer or such
Restricted Subsidiary is in the form of cash, Cash Equivalents or a combination thereof;




     (4) to the extent that any assets received by the Issuer and its Restricted
Subsidiaries in such Asset Sale constitute securities or may be used or useful in a
Permitted Business, such assets are concurrently with their acquisition added to the Notes
Collateral securing the Notes, other than Excluded Assets and subject to the limitations and
exclusions under Section 10.01(b); and




     (5) Net Proceeds from such Asset Sale is paid directly by the purchaser thereof to the
Collateral Agent to be held in trust in an Asset Sale Proceeds Account for application in
accordance with this Section 4.13.



          (b) Notwithstanding the foregoing provisions of the above paragraph, the Issuer and Restricted
Subsidiaries will not be required to cause any Excess (as defined in Section




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4.13(c)) to be held in an Asset Sale Proceeds Account in accordance with clause (5) of Section
4.13(a) except to the extent the aggregate Excess from all Asset Sales of Notes Collateral which
are not held in an Asset Sale Proceeds Account, or have not been previously applied in accordance
with the provisions of the following paragraphs relating to the application of Excess from Asset
Sales of Notes Collateral, exceeds $20.0 million.




          (c) Within 365 days after the receipt of the Net Proceeds from an Asset Sale of any Notes
Collateral, the excess (the “Excess”) of (x) any such Net Proceeds over (y) the amount of cash
applied by the Issuer and any Guarantor during the 6 months prior to the date of any such Asset
Sale to make Asset Sale Investments (provided that such amounts shall not include (a) amounts
previously used to so offset other Net Proceeds or (b) Asset Sale Investments made with cash from
the Asset Sale of Notes Collateral) shall be used by the Issuer or such Restricted Subsidiary at
its option to do any one or more of the following:





     (1) acquire assets or make capital expenditures, that, in either case, are used or
useful in a Permitted Business (provided, however, that if such acquisition is in the form
of the acquisition of Capital Stock of a Person, such acquisition results in such Person
becoming a Restricted Subsidiary of the Issuer or, if such Person is a Restricted Subsidiary
of the Issuer (other than a Wholly Owned Subsidiary), in an increase in the percentage
ownership of such Person by the Issuer or any Restricted Subsidiary of the Issuer) (an
“Asset Sale Investment”); provided, however, that to the extent that the assets acquired by
the Issuer and its Restricted Subsidiaries in such Asset Sale Investment may be used or
useful in a Permitted Business, such assets are concurrently with their acquisition added to
the Notes Collateral securing the Notes; or




     (2) make one or more offers (each, a “Notes Collateral Asset Sale Offer”) to the
Holders of the Notes (and, at the option of the Issuer, the holders of Other Pari Passu Lien
Obligations) to purchase Notes (and such Other Pari Passu Lien Obligations) in an amount
equal to 100% of the principal amount of the Notes (or in respect of Other Pari Passu Lien
Obligations, such lesser price as may be provided for by the terms of such Other Paris Passu
Lien Obligations), plus accrued and unpaid interest to the date of purchase (the “Excess
Payment”); provided, however, that in connection with any prepayment, repayment or purchase
of Indebtedness pursuant to this clause (2), the Issuer or such Restricted Subsidiary shall
permanently retire such Indebtedness and shall cause the related loan commitment (if any) to
be permanently reduced in an amount equal to the principal amount so prepaid, repaid or
purchased.


Notwithstanding the foregoing provisions of this Section 4.13(c), the Issuer and Restricted
Subsidiaries will not be required to apply any Excess in accordance with the above paragraph until
the aggregate Excess from all Asset Sales of Notes Collateral which are not applied in accordance
with the above paragraph exceeds $20.0 million.




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The Issuer will commence a Notes Collateral Asset Sale Offer with respect to the Excess from any
Asset Sale of Notes Collateral not later than 10 business days after the later of (x) the 365th day
after such Asset Sale of Notes Collateral to the extent such Excess has not been used in accordance
with paragraph (1) or (2) of this Section 4.13(c) and (y) the date that the Excess from Asset Sales
of Notes Collateral not applied in accordance with this Section 4.13 exceeds $20.0 million by
mailing the notice required pursuant to the terms of the Indenture, with a copy to the Trustee.
After the Issuer or any Restricted Subsidiary has applied the Excess from any Asset Sale of any
Notes Collateral as provided in, and within the time periods required by, this Section 4.13(c), the
balance of such Excess, if any, from such Asset Sale of any Notes Collateral shall be released by
the Collateral Agent to the Issuer or such Restricted Subsidiary for use by the Issuer or such
Restricted Subsidiary for any purpose not prohibited hereunder and shall cease to constitute Excess
of Asset Sales of Notes Collateral subject to the provisions of this Section 4.13(c).



If the aggregate principal amount of Notes and Other Pari Passu Lien Obligations tendered into such
Notes Collateral Asset Offer exceeds the amount of Excess, the Notes and Other Pari Passu Lien
Obligations to be purchased shall be purchased on a pro rata basis based on the principal amount of
Notes and Other Pari Passu Lien Obligations tendered and the selection of the actual Notes for
purchase will be made by the Trustee on a pro rata basis to the extent practicable.




          (d) The Issuer shall not, and shall not permit any of its Restricted Subsidiaries to,
consummate an Asset Sale (other than an Asset Sale of Notes Collateral) unless:





     (1) the Issuer (or such Restricted Subsidiary, as the case may be) receives
consideration at the time of such Asset Sale at least equal to the fair market value of the
assets or Equity Interests issued or sold or otherwise disposed of;




     (2) in the case of Asset Sales involving consideration in excess of $10.0 million, such
fair market value is determined by the Issuer’s Board of Directors and evidenced by a
resolution of the Board of Directors set forth in an Officers’ Certificate delivered to the
Trustee; and




     (3) at least 75% of the consideration therefor received by the Issuer or such
Restricted Subsidiary is in the form of cash, Cash Equivalents or Replacement Assets or a
combination thereof.



          (e) Within 365 days after the receipt of any Net Proceeds from an Asset Sale (other than an
Asset Sale of Notes Collateral), the Issuer may apply such Net Proceeds at its option to one or
more of the following:





     (1) to permanently reduce any Indebtedness secured by a Permitted Lien (including the
Credit Facilities) or any Indebtedness of a Restricted Subsidiary that is not a Guarantor
(and, in the case of revolving obligations, to correspondingly reduce commitments with
respect thereto) or any Pari Passu Indebtedness, in each case other



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than Indebtedness owed to the Issuer or an Affiliate thereof; provided, however, that
if the Issuer or any Guarantor shall so reduce any Pari Passu Indebtedness, the Issuer will
equally and ratably reduce Indebtedness under the Notes by making an offer to all Holders to
purchase at a purchase price equal to 100% of the principal amount thereof, plus accrued and
unpaid interest and additional interest, if any, the pro rata principal amount of the Notes,
such offer to be conducted in accordance with the procedures set forth in this Section 4.13
for an Asset Sale Offer but without any further limitation in amount; or




     (2) make an Asset Sale Investment.


Pending the final application of any such Net Proceeds, the Issuer or such Restricted Subsidiary of
the Issuer may temporarily reduce Indebtedness under revolving credit borrowings or otherwise
invest such Net Proceeds in Cash Equivalents.




          (f) Any Net Proceeds from Asset Sales (other than an Asset Sale of Notes Collateral) that are
not applied or invested as provided in Section 4.13(e) will constitute “Excess Proceeds”. Within
ten Business Days after the date that the aggregate amount of Excess Proceeds exceeds $20.0
million, the Issuer shall make an offer (the “Asset Sale Offer”) to all Holders of Notes (and, at
the option of the Issuer, to holders of any Pari Passu Indebtedness) to purchase the maximum
principal amount of Notes (and principal amount or accreted value, as applicable, of such Pari
Passu Indebtedness) that may be purchased out of the Excess Proceeds. The offer price in any Asset
Sale Offer shall be in an amount equal to 100% of the principal amount of the Notes (or in respect
of Pari Passu Indebtedness, such lesser price as may be provided for by the terms of such Pari
Passu Indebtedness), plus accrued and unpaid interest to the date of purchase, and will be payable
in cash (the “Excess Proceeds Payment”).




          (g) If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Issuer may
use such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the
aggregate principal amount of Notes and Pari Passu Indebtedness tendered into such Asset Sale Offer
exceeds the amount of Excess Proceeds, the Notes and such Pari Passu Indebtedness to be purchased
shall be purchased on a pro rata basis based on the principal amount of Notes and such Pari Passu
Indebtedness tendered. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds
shall be reset at zero.




          (h) For purposes of Section 4.13(a)(3) and Section 4.13(d)(3),





     (1) each of the following shall be deemed to be cash:




     (i) any liabilities (as shown on the Issuer’s or such Restricted
Subsidiary’s most recent balance sheet) of the Issuer or any Restricted
Subsidiary (other than contingent liabilities and liabilities that are by
their terms subordinated to the Notes or any Note Guarantee) that are
assumed



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by the transferee of any such assets and, in the case of liabilities
other than Non-Recourse Debt, where the Issuer and all Restricted
Subsidiaries are released from any further liability in connection
therewith;




     (ii) any securities, notes or other obligations received by the Issuer
or any such Restricted Subsidiary from such transferee that are converted by
the Issuer or such Restricted Subsidiary into cash within 180 days
thereafter (to the extent of the cash received in that conversion); and




     (iii) any Designated Noncash Consideration received by the Issuer or
any of its Restricted Subsidiaries in such Asset Sale having an aggregate
fair market value (as determined in good faith by the Board of Directors of
the Issuer), taken together with all other Designated Noncash Consideration
received pursuant to this clause (c) that is at that time outstanding, not
to exceed the greater of (x) $50.0 million or (y) 5.0% of Consolidated
Tangible Assets at the time of the receipt of such Designated Noncash
Consideration (with the fair market value of each item of Designated Noncash
Consideration being measured at the time received without giving effect to
subsequent changes in value).




     (2) any liabilities of the Issuer or any Restricted Subsidiary that are not assumed by
the transferee of such assets in respect of which the Issuer and all Restricted Subsidiaries
are not released from any future liabilities in connection therewith shall not be considered
consideration.



          (i) Immediately following any Note Collateral Asset Sale Offer or Asset Sale Offer, the Issuer
is required to mail a notice to the Trustee and to each Holder stating:





     (i) that such offer is being made pursuant to this Section 4.13 and that all Notes
tendered will be accepted for payment;




     (ii) the amount of the Excess Payment or Excess Proceeds Payment, as applicable, and
the purchase date (in each case, the “Payment Date”), which may not be earlier than 30 days
nor later than 60 days from the date such notice is mailed;




     (iii) that any Note not tendered will continue to accrue interest;




     (iv) that, unless the Issuer defaults in the payment thereof, all Notes accepted for
payment pursuant to the such offer will cease to accrue interest on and after the Offer
Payment Date, as applicable;




     (v) that Holders electing to have any Notes purchased pursuant to such offer will be
required to surrender the Notes to be purchased to the Paying Agent at the address



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specified in the notice prior to the close of business on the third business day
preceding the Offer Payment Date;




     (vi) that Holders will be entitled to withdraw Notes they have tendered on the terms
and conditions set forth in such notice; and




     (vii) that Holders whose Notes are being purchased only in part will be issued new
Notes (or book-entry notation made with respect thereto) equal in principal amount to the
unpurchased portion of the Notes tendered; provided that the portion of each Note purchased
and each such new Note issued (or book-entry notation, if applicable) shall be in a
principal amount of $1,000 or an integral multiple thereof.




     (j) On the Offer Payment Date, the Issuer will, to the extent lawful:




     (i) accept for payment all Notes or portions thereof tendered pursuant to such offer
and not withdrawn;




     (ii) deposit with the Paying Agent an amount sufficient to pay the Excess Payment or
Excess Proceeds Payment, as applicable, in respect of all Notes or portions thereof so
tendered and not withdrawn; and




     (iii) deliver or cause to be delivered to the Trustee all Notes so tendered and not
withdrawn together with an Officers’ Certificate specifying the Notes or portions thereof
tendered to the Issuer.



          (k) The Paying Agent will promptly mail to each Holder of Notes so tendered and not withdrawn
the Excess Payment or Excess Proceeds Payment, as applicable, in respect of such Notes, and the
Trustee will promptly authenticate and mail to such Holder a new Note (or cause to be transferred
by book entry) equal in principal amount to any unpurchased portion of the Notes surrendered;
provided that each such new Note shall be in a principal amount of $1,000 or an integral multiple
thereof. The Issuer will publicly announce the results of the such offer on or as soon as
practicable after the Offer Payment Date.




          (l) The Issuer will comply with the requirements of Rule 14e-1 under the Exchange Act and any
other securities laws and regulations thereunder to the extent such laws and regulations are
applicable in connection with each repurchase of Notes pursuant to such offer. To the extent that
the provisions of any securities laws or regulations conflict with this Section 4.13, the Issuer
will comply with the applicable securities laws and regulations and will not be deemed to have
breached its obligations under this Section 4.13 by virtue of complying with such laws and
regulations.




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SECTION 4.14. Limitation on Transactions with Affiliates.




          The Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, make any
payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or
purchase any property or assets from, or enter into or make or amend any transaction, contract,
agreement, understanding, loan, advance or Guarantee with, or for the benefit of, any Affiliate
involving aggregate consideration in excess of $5.0 million on or after the Issue Date (each, an
“Affiliate Transaction”), unless:





     (1) such Affiliate Transaction is on terms that are no less favorable to the Issuer or
the relevant Restricted Subsidiary than those that would have been obtained in a comparable
transaction by the Issuer or such Restricted Subsidiary with an unrelated Person; and




     (2) the Issuer delivers to the Trustee:




     (a) with respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $10.0 million, a
resolution of the Board of Directors set forth in an Officers’ Certificate
certifying that such Affiliate Transaction complies with this Section 4.14 and that
such Affiliate Transaction has been approved by a majority of the disinterested
members of the Board of Directors; and




     (b) with respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $25.0 million, an
opinion as to the fairness to the Issuer or such Restricted Subsidiary of such
Affiliate Transaction from a financial point of view issued by an Independent
Financial Advisor.



          The following items shall not be deemed to be Affiliate Transactions and, therefore, will not
be subject to the provisions of the prior paragraph:





     (1) any consulting or employment agreement or arrangement entered into by the Issuer or
any of its Restricted Subsidiaries approved by a majority of the disinterested members of
the Board of Directors of the Issuer;




     (2) transactions (i) between or among the Issuer and/or the Guarantors, (ii) between or
among Restricted Subsidiaries that are not Guarantors; and (iii) between or among the Issuer
and the Guarantors, on the one hand, and Restricted Subsidiaries that are not Guarantors, on
the other hand, in the ordinary course of business;




     (3) payment of reasonable directors fees to directors of the Issuer and any Parent and
the provision of customary indemnities to directors, officers, employees or consultants of
the Issuer, and any Parent or any Restricted Subsidiary;



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     (4) issuances and sales of Equity Interests (other than Disqualified Stock) to
Affiliates of the Issuer;




     (5) any tax sharing agreement or arrangement and payments pursuant thereto among the
Issuer and its Subsidiaries and any other Person with which the Issuer or its Subsidiaries
is required or permitted to file a consolidated, combined or unitary tax return or with
which the Issuer or any of its Restricted Subsidiaries is or could be part of a
consolidated, combined or unitary group for tax purposes in amounts not otherwise prohibited
by this Indenture;




     (6) Restricted Payments that are permitted by Section 4.11 or any Permitted
Investments;




     (7) the payment (directly or through any Parent) of annual management, consulting,
monitoring and advising fees and related expenses to the Equity Sponsor and its respective
Affiliates pursuant to management agreements described in the Issuer’s Annual Report on Form
10-K for the fiscal year ended December 31, 2007;




     (8) payments by the Issuer or any of its Restricted Subsidiaries to the Equity Sponsor
and its Affiliates for any financial advisory, financing, underwriting or placement services
or in respect of other investment banking activities, including, without limitation, in
connection with acquisitions or divestitures, which payments are approved by the majority of
the Board of Directors of the Issuer in good faith; provided that the maximum aggregate
amount of any such fees in any 12-month period shall not exceed 1.25% of the aggregate
transaction value (including enterprise value in connection with acquisitions or
divestitures) (or portion thereof) in respect of which such services are rendered
(excluding, in any case, commitment or similar fees for providing financing);




     (9) loans to employees that are approved in good faith by a majority of the Board of
Directors of the Issuer in an amount not to exceed $5.0 million outstanding at any time and
advances and expense reimbursements to employees in the ordinary course of business;




     (10) agreements (and payments relating thereto) existing on May 10, 2008, as the same
may be amended, modified or replaced from time to time, so long as any amendment,
modification or replacement is not materially less favorable to the Issuer and its
Restricted Subsidiaries than the agreement in effect on May 10, 2008;




     (11) transactions with a joint venture engaged in a Permitted Business; provided that
all the outstanding ownership interests of such joint venture are owned only by the Issuer,
its Restricted Subsidiaries and Persons who are not Affiliates of the Issuer;




     (12) transactions between a Receivables Subsidiary and any Person in which the
Receivables Subsidiary has an Investment;



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     (13) transactions with customers, clients, suppliers or purchasers or sellers of goods,
in each case in the ordinary course of business; and




     (14) transactions which have been approved by a majority of the disinterested members
of the Board of Directors and with respect to which an Independent Financial Advisor has
delivered an opinion as to the fairness to the Issuer or such Restricted Subsidiary of such
transaction from a financial point of view.




			
	SECTION 4.15.	 	Dividend and Other Payment Restrictions Affecting Restricted
Subsidiaries.







          (a) The Issuer will not, and will not permit any of its Restricted Subsidiaries to, directly
or indirectly, create or permit to exist or become effective any consensual encumbrance or
restriction on the ability of any Restricted Subsidiary to:





     (1) pay dividends or make any other distributions on its Capital Stock to the Issuer or
any of its Restricted Subsidiaries or pay any indebtedness owed to the Issuer or any of its
Restricted Subsidiaries;




     (2) make loans or advances to the Issuer or any of its Restricted Subsidiaries; or




     (3) transfer any of its properties or assets to the Issuer or any of its Restricted
Subsidiaries.



          (b) However, the restrictions under Section 4.15(a) will not apply to encumbrances or
restrictions existing under or by reason of:





     (1) Existing Indebtedness and the Credit Agreement;




     (2) this Indenture, the Notes and the Note Guarantees or by other Indebtedness of the
Issuer or of a Guarantor which is pari passu in right of payment with the Notes or Note
Guarantees, as applicable, incurred under an indenture pursuant to Section 4.10; provided
that the encumbrances and restrictions are no more restrictive, taken as a whole, than those
contained in this Indenture;




     (3) applicable law or regulation;




     (4) any agreements or instruments governing Indebtedness or Capital Stock of a Person
acquired by the Issuer or any of its Restricted Subsidiaries as in effect at the time of
such acquisition (except to the extent such Indebtedness or Capital Stock was incurred or
issued, as the case may be, in connection with or in contemplation of such acquisition),
which encumbrance or restriction is not applicable to any Person, or the properties or
assets of any Person, other than the Person, or the property or assets of the



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Person, so acquired; provided that, in the case of Indebtedness, such Indebtedness was
permitted by the terms of this Indenture to be incurred;




     (5) customary non-assignment provisions in leases, licenses and other agreements
entered into in the ordinary course of business;




     (6) purchase money obligations for property acquired in the ordinary course of business
that impose restrictions on the property so acquired of the nature described in Section
4.15(a)(3);




     (7) an agreement entered into for the sale or disposition of Capital Stock or assets of
a Restricted Subsidiary or an agreement entered into for the sale of specified assets or the
granting of an option to purchase specified assets (in either case, so long as such
encumbrance or restriction, by its terms, terminates on the earlier of the termination of
such agreement or the consummation of such agreement and so long as such restriction applies
only to the Capital Stock or assets to be sold);




     (8) Permitted Refinancing Indebtedness; provided that the encumbrances and restrictions
contained in the agreements governing such Permitted Refinancing Indebtedness are no more
restrictive, taken as a whole, than those contained in the agreements governing the
Indebtedness being refinanced;




     (9) Permitted Liens securing Indebtedness that limit the right of the debtor to dispose
of the assets subject to such Lien;




     (10) customary limitations on the disposition or distribution of assets or property in
joint venture agreements and other similar agreements entered into in the ordinary course of
business;




     (11) any Purchase Money Note, or other Indebtedness or contractual requirements of a
Receivables Subsidiary in connection with a Qualified Securitization Transaction; provided
that such restrictions only apply to such Receivables Subsidiary;




     (12) cash or other deposits or net worth imposed by customers or agreements entered
into in the ordinary course of business;




     (13) customary provisions in joint venture agreements;




     (14) Indebtedness of a Foreign Restricted Subsidiary permitted to be incurred under
this Indenture; and




     (15) any encumbrances or restrictions imposed by any amendments, modifications,
restatements, renewals, increases, supplements, refundings, replacements or refinancings of
the agreements, contracts, instruments or obligations referred to in



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clauses (1) through (14) above; provided that such amendments, modifications,
restatements, renewals, increases, supplements, refundings, replacements or refinancings
are, in the good faith judgment of the Issuer’s Board of Directors, not materially more
restrictive, taken as a whole, with respect to such dividend and other payment restrictions
than the dividend or other payment restrictions contained in the contracts, agreements,
instruments or obligations referred to in clauses (1) through (14) above prior to such
amendment, modification, restatement, renewal, increase, supplement, refunding, replacement
or refinancing; provided, further, however, that with respect to contracts, agreements,
instruments or obligations existing on the Issue Date, any such amendments, modifications,
restatements, renewals, increases, supplements, refundings, replacements or refinancings
contain, in the good faith judgment of the Issuer’s Board of Directors, dividend and other
payment restrictions that are not materially more restrictive, taken as a whole, than such
restrictions contained in such contracts, instruments or obligations as in effect on the
Issue Date.



SECTION 4.16. Limitations on Issuances of Guarantees of Indebtedness.




          (a) The Issuer shall not permit any of its Restricted Subsidiaries, directly or indirectly, to
Guarantee or pledge any assets to secure the payment of any other Indebtedness of the Issuer or any
other Restricted Subsidiary (other than a Guarantee or pledge by a Foreign Restricted Subsidiary
securing the payment of Indebtedness of another Foreign Restricted Subsidiary) unless either (1)
such Restricted Subsidiary is a Guarantor or (2) such Restricted Subsidiary simultaneously executes
and delivers a supplemental indenture (in the form set forth in Exhibit H providing for the
Guarantee of the payment of the Notes by such Restricted Subsidiary, which Guarantee shall be
senior to or pari passu with such Subsidiary’s Guarantee of or pledge to secure such other
Indebtedness), a supplement to the Intercreditor Agreement and applicable Security Documents.




          (b) Notwithstanding Section 4.16(a), any Note Guarantee will provide by its terms that it will
be automatically and unconditionally released and discharged under the circumstances described in
Section 11.04.




SECTION 4.17. Reports.




          (a) Whether or not required by the Commission, so long as any Notes are outstanding the Issuer
will furnish to the Trustee and the nominee of the Depositary, on behalf of the Holders of Notes,
within the time periods specified in the Commission’s rules and regulations:





     (1) all quarterly and annual financial information that would be required to be
contained in a filing with the Commission on Forms 10-Q and 10-K if the Issuer were required
to file such Forms, including a “Management’s Discussion and Analysis of Financial Condition
and Results of Operations” and, with respect to the annual



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information only, a report on the annual financial statements by the Issuer’s certified
independent accountants; and




     (2) all current reports that would be required to be filed with the Commission on Form
8-K if the Issuer were required to file such reports;


provided, that if the Issuer files such reports electronically with the Commission’s Electronic
Data Gathering Analysis and Retrieval System (or any successor system) within such time periods,
the Issuer shall not be required under this Indenture to furnish such reports as specified above.




          (b) In addition, following the date by which the Issuer is required to consummate the exchange
offer contemplated by the Registration Rights Agreement, whether or not required by the Commission,
the Issuer will file a copy of all of the information and reports referred to in Sections
4.17(a)(1) and (2) with the Commission for public availability within the time periods specified in
the Commission’s rules and regulations (unless the Commission will not accept such a filing) and
make such information available to securities analysts and prospective investors upon request. In
addition, the Issuer and the Guarantors have agreed that, for so long as any Notes (but not the
Exchange Notes) remain outstanding, they will furnish to the Holders and to securities analysts and
prospective investors, upon their request, the information required to be delivered pursuant to
Rule 144A(d)(4) under the Securities Act.




          (c) In addition, if at any time any Parent becomes a Guarantor (there being no obligation of
any Parent to do so), holds no material assets other than cash, Cash Equivalents and the Capital
Stock of the Issuer or any direct or indirect parent of the Issuer (and performs only the related
incidental activities associated with such ownership) and complies with the requirements of Rule
3-10 of Regulation S-X promulgated by the Commission (or any successor provision), the reports,
information and other documents required to be filed and furnished to holders of the Notes pursuant
to this Section 4.17 may, at the option of the Issuer, be filed by and be those of such Parent
rather than the Issuer.




          (d) Notwithstanding the foregoing, the requirements of this Section 4.17 shall be deemed
satisfied with respect to the furnishing of a Form 10-K for the Issuer’s fiscal year 2008 by the
filing with the Commission of the Exchange Offer Registration Statement (as defined in the
Registration Rights Agreement) if the information that would have been contained in such report is
included in the Exchange Offer Registration Statement relating to the Exchange Offer, or any
amendments thereto, and filed with the Commission within the times periods contemplated above.




          The Trustee shall not be under a duty to review or evaluate any report or information
delivered to the Trustee pursuant to the provisions of this Section 4.17 for the purposes of making
such reports available to it and to the Holders of the Notes who may request such information.
Delivery of such reports, information and documents to the Trustee as may be




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required under this Section 4.17 is for informational purposes only and the Trustee’s receipt
of such shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Issuer’s compliance with any of its
covenants hereunder (as to which the Trustee is entitled to rely exclusively on an Officers’
Certificate).




SECTION 4.18. Payments for Consent.




          The Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, directly or
indirectly, pay or cause to be paid any consideration to or for the benefit of any Holder of Notes
for or as an inducement to any consent, waiver or amendment of any of the terms or provisions of
this Indenture or the Notes unless such consideration is offered to be paid and is paid to all
Holders of the Notes that consent, waive or agree to amend in the time frame set forth in the
solicitation documents relating to such consent, waiver or agreement.




SECTION 4.19. RESERVED.




SECTION 4.20. Additional Note Guarantees and Security for the Notes.




          If on or after the date of this Indenture the Issuer or any of its Restricted Subsidiaries
acquires or creates another Domestic Subsidiary (other than a Receivables Subsidiary) that
Guarantees any Indebtedness of the Issuer or any Restricted Subsidiary, then that newly acquired or
created Domestic Subsidiary (other than an Immaterial Subsidiary) must become a Guarantor and
execute a supplemental indenture (in the form set forth in Exhibit H hereto), a supplement to the
Intercreditor Agreement, a supplement to the Security Agreement, and other applicable Security
Documents and deliver an Opinion of Counsel to the Trustee within 20 Business Days of the date on
which it was acquired or created. At the Issuer’s option, the Issuer may cause any Foreign
Restricted Subsidiary to Guarantee and provide security for the Notes. Each Guarantee by a
Restricted Subsidiary may be released pursuant to Section 11.04 of this Indenture.




SECTION 4.21. Designation of Restricted and Unrestricted Subsidiaries.




          The Board of Directors of the Issuer may designate any Restricted Subsidiary to be an
Unrestricted Subsidiary if that designation would not cause a Default; provided that in no event
shall there be any Unrestricted Subsidiaries on or immediately following the date of this
Indenture. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate
fair market value of all outstanding Investments owned by the Issuer and its Restricted
Subsidiaries in the Subsidiary so designated (after giving effect to any sale of Equity Interests
of such Subsidiary in connection with such designation) will be deemed to be an Investment made as
of the time of such designation and will either reduce the amount available for Restricted Payments
under Section 4.11(a) or reduce the amount available for future Investments under one or more
clauses of the definition of “Permitted Investments.” That designation shall only be permitted if
such Investment would be permitted at that time and if such Restricted Subsidiary



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otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of the
Issuer may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary;
provided that such designation shall be deemed to be an incurrence of Indebtedness by a Restricted
Subsidiary of the Issuer of any outstanding Indebtedness of such Unrestricted Subsidiary and such
designation shall only be permitted if (1) such Indebtedness is permitted under Section 4.10,
calculated on a pro forma basis as if such designation had occurred at the beginning of the
four-quarter reference period; and (2) no Default or Event of Default would be in existence
following such designation.




SECTION 4.22. Business Activities.




          The Issuer shall not, and shall not permit any Restricted Subsidiary to, engage in any
business other than Permitted Businesses, except as would not be material to the Issuer and its
Restricted Subsidiaries, taken as a whole.




SECTION 4.23. Impairment of Security Interest.




          Subject to the rights of the holders of Permitted Liens and Permitted Collateral Liens, the
Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, take or knowingly or
negligently omit to take, any action which action or omission would or could reasonably be expected
to have the result of materially impairing the security interest with respect to the Collateral for
the benefit of the Secured Parties, subject to limited exceptions. The Issuer shall not amend,
modify or supplement, or permit or consent to any amendment, modification or supplement of, the
Security Documents in any way that would be adverse to the Holders of the Notes in any material
respect, except as permitted under Articles IX or X hereof or the Intercreditor Agreement.




SECTION 4.24. After-Acquired Property.




          Promptly following the acquisition by the Issuer or any Guarantor of any After-Acquired
Property (but subject to the limitations, if applicable, set forth in Section 10.01), the Issuer or
such Guarantor shall execute and deliver such mortgages, deeds of trust, security instruments,
financing statements and certificates and opinions of counsel as shall be reasonably necessary to
vest in the Collateral Agent a perfected security interest in such After-Acquired Property and to
have such After-Acquired Property added to the Notes Collateral or the ABL Collateral, as
applicable, and thereupon all provisions of this Indenture relating to the Notes Collateral or the
ABL Collateral, as applicable, shall be deemed to relate to such After-Acquired Property to the
same extent and with the same force and effect.




SECTION 4.25. Information Regarding Collateral.




          The Issuer shall furnish to the Collateral Agent, with respect to the Issuer or any Guarantor,
prompt written notice of any change in such Person’s (i) corporate name, (ii) jurisdiction of
organization or formation, (iii) identity or corporate structure or (iv) Federal Taxpayer



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Identification Number. The Issuer shall not effect or permit any change referred to in the
preceding sentence unless all filings have been made under the Uniform Commercial Code of the
applicable jurisdiction or otherwise that are required in order for the Collateral Agent to
continue at all times following such change to have a valid, legal and perfected security interest
in all the Collateral. The Issuer also shall promptly notify the Collateral Agent in writing if
any material portion of the Collateral is damaged or destroyed. Each year, at the time of delivery
of the annual financial statements with respect to the preceding fiscal year, the Issuer shall
deliver to the Trustee a certificate of a financial officer setting forth the information required
pursuant to the Perfection Certificate or confirming that there has been no change in such
information since the date of the prior delivered Perfection Certificate.




SECTION 4.26. Further Assurances.




          The Issuer and Guarantors shall execute any and all further documents, financing statements,
agreements and instruments, and take all further action that may be required under applicable law,
or that the Trustee may reasonably request, in order to grant, preserve, protect and perfect the
validity and priority of the security interests created or intended to be created by the Security
Documents in the Collateral. In addition, from time to time, the Issuer will reasonably promptly
secure the obligations under the Indenture, Security Documents and Intercreditor Agreement by
pledging or creating, or causing to be pledged or created, perfected security interests with
respect to the Collateral. Such security interests and Liens will be created under the Security
Documents and other security agreements, mortgages, deeds of trust and other instruments and
documents in form and substance reasonably satisfactory to the Trustee (as to which the Trustee
will be entitled to receive and rely upon, without liability on its part, the advice of counsel
and/or such direction as it may deem necessary or advisable from Holders of a majority of the
outstanding principal amount of the Notes).




ARTICLE V




SUCCESSOR CORPORATION




SECTION 5.01. Merger, Consolidation, or Sale of Assets.




          (a) The Issuer shall not, directly or indirectly, consolidate or merge with or into another
Person (whether or not the Issuer is the surviving corporation), and the Issuer will not sell,
assign, transfer, convey or otherwise dispose of all or substantially all of the properties or
assets of the Issuer and its Restricted Subsidiaries taken as a whole, in one or more related
transactions, to another Person (including by way of consolidation or merger), unless:





     (1) either: (A) the Issuer is the surviving corporation or (B) the Person formed by or
surviving any such consolidation or merger (if other than the Issuer) or to which such sale,
assignment, transfer, conveyance or other disposition shall have been made is a



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corporation, partnership or limited liability company organized or existing under the
laws of the United States, any state thereof or the District of Columbia; provided that, in
the case such Person is a limited liability company or a partnership, such Person will form
a Wholly Owned Subsidiary that is a corporation and cause such Subsidiary to become a
co-issuer of the Notes;




     (2) the Person formed by or surviving any such consolidation or merger (if other than
the Issuer) or the Person to which such sale, assignment, transfer, conveyance or other
disposition shall have been made assumes all the obligations of the Issuer, as the case may
be, under the Notes, this Indenture and the Registration Rights Agreement pursuant to
agreements reasonably satisfactory to the Trustee;




     (3) immediately after such transaction and any related financing transactions, no
Default or Event of Default exists; and




     (4) the Issuer or the Person formed by or surviving any such consolidation or merger
(if other than the Issuer), or to which such sale, assignment, transfer, conveyance or other
disposition shall have been made, on the date of such transaction after giving pro forma
effect thereto and any related financing transactions as if the same had occurred at the
beginning of the applicable four-quarter period either (A) would be permitted to incur at
least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set
forth in Section 4.10(a), or (B) would have a Fixed Charge Coverage Ratio on such basis
higher than the Fixed Charge Coverage Ratio immediately prior to such transactions.



          (b) Notwithstanding clauses (3) and (4) of Section 5.01(a), the Issuer may merge or
consolidate with a Restricted Subsidiary incorporated solely for the purposes of organizing the
Issuer in another jurisdiction.




          (c) The Issuer shall not, directly or indirectly, lease all or substantially all of its
properties or assets, in one or more related transactions, to any other Person.




          (d) This Section 5.01 will not apply to a sale, assignment, transfer, conveyance or other
disposition of assets between or among the Issuer and any of its Restricted Subsidiaries that are
Guarantors.




          (e) In connection with any such consolidation, merger, sale, assignment, transfer, conveyance
or other disposition, the Issuer shall deliver, or cause to be delivered, to the Trustee, in form
and substance reasonably satisfactory to the Trustee, an Officers’ Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, sale, assignment, transfer, conveyance or
other disposition and the supplemental indenture in respect thereto comply with this Indenture and
that all conditions precedent therein provided for relating to such transactions have been complied
with.




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          (f) Upon any such consolidation, merger, sale, assignment, transfer, conveyance or other
disposition, the successor Person formed by such consolidation or into which the Issuer is merged
or the successor Person to which such transfer is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Issuer under this Indenture with the same effect as
if such successor Person had been named as the Issuer in this Indenture, and when a successor
Person assumes all the obligations of its predecessor under this Indenture or the Notes, the
predecessor shall be released from those obligations; provided, however, that in the case of a
transfer by lease, the predecessor shall not be released from the payment of principal of, premium,
if any, and interest on the Notes.




ARTICLE VI




DEFAULT AND REMEDIES




SECTION 6.01. Events of Default.




          Each of the following constitutes an “Event of Default”:





     (1) the Issuer defaults for 30 days in the payment when due of interest on the Notes;




     (2) the Issuer defaults in payment when due of the principal of, or premium, if any, on
the Notes;




     (3) failure by the Issuer or any of its Restricted Subsidiaries to comply with Section
4.09, Section 4.13 or Section 5.01;




     (4) failure by the Issuer or any of its Restricted Subsidiaries for 45 days after
notice by the Trustee or by Holders of at least 25% in principal amount of the then
outstanding Notes to comply with any of the other agreements in this Indenture, the Security
Agreement, any other Security Document or the Intercreditor Agreement;




     (5) default by the Issuer or any Restricted Subsidiary 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 Issuer or any of its Restricted Subsidiaries (or the
payment of which is Guaranteed by the Issuer or any of its Restricted Subsidiaries) whether
such Indebtedness or Guarantee now exists, or is created after the date of this Indenture,
if that default:




     (a) is caused by a failure to make any payment when due at the final maturity
(after any applicable grace period) of such Indebtedness (a “Payment Default”); or



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     (b) results in the acceleration of such Indebtedness prior to its express
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 $25.0 million or more;




     (6) failure by the Issuer or any of its Restricted Subsidiaries to pay final judgments
aggregating in excess of $25.0 million (net of any amount covered by insurance), which
judgments are not paid, discharged or stayed for a period of 60 days after such judgments
have become final and non-appealable and, in the event such judgment is covered by
insurance, an enforcement proceeding has been commenced by any creditor upon such judgment
or decree that is not promptly stayed;




     (7) except as permitted by this Indenture, any Note Guarantee of a Guarantor that is a
Significant Subsidiary, or the Note Guarantees of any group of Guarantors that, taken
together, would constitute a Significant Subsidiary, shall be held in any judicial
proceeding to be unenforceable or invalid or shall cease for any reason to be in full force
and effect or any such Guarantor or group of Guarantors, or any Person acting on behalf of
any such Guarantor or group of Guarantors, shall deny or disaffirm its obligations under its
Note Guarantee;




     (8) the Issuer or any of its Significant Subsidiaries or any group of Restricted
Subsidiaries that, taken together, would constitute a Significant Subsidiary, pursuant to or
within the meaning of Bankruptcy Law:




     (i) commences a voluntary case; or




     (ii) consents to entry of an order for relief against it in an involuntary
case; or




     (iii) consents to the appointment of a custodian of it or for all or
substantially all of its property; or




     (iv) makes a general assignment for the benefit of its creditors; or




     (v) generally is not paying its debts as they become due; or




     (9) a court of competent jurisdiction enters an order or decree under any Bankruptcy
Law that:



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     (i) is for relief against any Guarantor, the Issuer or any of its Subsidiaries
that is a Significant Subsidiary or any group of Subsidiaries that, taken as a
whole, would constitute a Significant Subsidiary in an involuntary case;




     (ii) appoints a custodian of any Guarantor, the Issuer or any of its
Subsidiaries that is a Significant Subsidiary or any group of Subsidiaries that,
taken as a whole, would constitute a Significant Subsidiary or for all or
substantially all of the property of any Guarantor, the Issuer or any of its
Subsidiaries that is a Significant Subsidiary or any group of Subsidiaries that,
take as a whole, would constitute a Significant Subsidiary; or




     (iii) orders the liquidation of any Guarantor, the Issuer or any of its
Subsidiaries that is a Significant Subsidiary or any group of Subsidiaries that,
taken as a whole, would constitute a Significant Subsidiary;


and the order or decree remains unstayed and in effect for 60 consecutive days;





     (10) any security interest purported to be created by any Security Document with
respect to any Collateral, individually or in the aggregate, having a fair market value in
excess of $50.0 million, shall cease to be, or shall be asserted by the Issuer or any
Guarantor not to be, a valid, perfected security interest in the securities, assets or
properties covered thereby; except to the extent that any such loss of perfection or
priority results from the failure of the Trustee or Collateral Agent to make filings,
renewals and continuations (or other equivalent filings) which the Issuer has indicated in
the Perfection Certificate are required to be made or the failure of the Trustee to maintain
possession of certificates actually delivered to it representing securities pledged under
the Security Documents); and




     (11) the failure by the Issuer or any Restricted Subsidiary to comply for 60 days after
notice with its other agreements contained in the Security Documents or Intercreditor
Agreement except for a failure that would not be material to the Holders of the Notes and
would not materially affect the value of the Collateral taken as a whole (together with the
defaults described in clauses (7) and (10)).



          In the event of a declaration of acceleration of the Notes because an Event of Default has
occurred and is continuing as a result of the acceleration of any Indebtedness described in clause
(5) of the preceding paragraph, the declaration of acceleration of the Notes shall be automatically
annulled if the holders of any Indebtedness described in clause (5) of the preceding paragraph have
rescinded the declaration of acceleration in respect of such Indebtedness within 30 days of the
date of such declaration and if (i) the annulment of the acceleration of Notes would not conflict
with any judgment or decree of a court of competent jurisdiction and (ii) all existing Events of
Default, except nonpayment of principal or interest on




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the Notes that became due solely because of the acceleration of the Notes have been cured or
waived.




SECTION 6.02. Acceleration.




          In the case of any Event of Default specified in Section 6.01(8) or (9) that occurs and is
continuing, then all unpaid principal of, premium, if any, and accrued and unpaid interest, if any,
on all of the outstanding Notes shall ipso facto become due and payable immediately without further
action or notice on the part of the Trustee or any Holder.




          If any Event of Default (other than an Event of Default specified in Section 6.01(8) or (9))
occurs and is continuing, the Trustee or the Holders of at least 25% in principal amount of the
then outstanding Notes may declare all unpaid principal of, premium, if any, and accrued interest
on the Notes to be due and payable immediately by notice in writing in writing to the Issuer
specifying the respective Event of Default.




SECTION 6.03. Other Remedies.




          (a) If a Default occurs and is continuing, the Trustee may pursue any available remedy by
proceeding at law or in equity to collect the payment of principal of, premium, if any, or interest
on the Notes or to enforce the performance of any provision of the Notes or this Indenture.




          (b) 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 Noteholder in
exercising any right or remedy accruing upon a Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Default. No remedy is exclusive of any other remedy.
All available remedies are cumulative to the extent permitted by law.




          (c) Holders may not enforce this Indenture, the Notes, the Security Documents or the
Intercreditor Agreement except as provided in this Indenture and under the TIA. Subject to the
provisions of this Indenture relating to the duties of the Trustee, the Trustee is under no
obligation to exercise any of its rights or powers under this Indenture at the request, order or
direction of any of the Holders, unless such Holders have offered to the Trustee reasonable
indemnity. The Trustee may withhold from Holders of the Notes notice of any continuing Default or
Event of Default (except a Default or Event of Default relating to the payment of principal,
premium, if any, or interest) if it determines that withholding notice is in their interest.
Subject to all provisions of this Indenture and applicable law, the Holders of a majority in
aggregate principal amount of the then outstanding Notes issued under this Indenture have the right
to direct the time, method and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on the Trustee.




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SECTION 6.04. Waiver of Defaults.




          Provided the Notes are not then due and payable by reason of a declaration of acceleration,
the Holders of a majority in aggregate principal amount of the Notes at the time outstanding may on
behalf of the Holders of all the Notes waive any Default with respect to such Notes and its
consequences by providing written notice thereof to the Issuer and the Trustee, except a Default
(1) in the payment of the principal of, premium, if any, or interest on any Note or (2) in respect
of a covenant or provision hereof which under this Indenture cannot be modified or amended without
the consent of the Holder of each outstanding Note affected. In the case of any such waiver, the
Issuer, the Trustee and the Holders will be restored to their former positions and rights under
this Indenture, respectively; provided that no such waiver shall extend to any subsequent or other
Default or impair any right consequent thereto.




SECTION 6.05. Control by Majority.




          The Holders of not less than 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 exercising any trust or power conferred on it. Subject to Section 7.01, however, the
Trustee may refuse to follow any direction that conflicts with any law or this Indenture, that the
Trustee determines may be unduly prejudicial to the rights of another Noteholder, or that may
involve the Trustee in personal liability; provided that the Trustee may take any other action
deemed proper by the Trustee which is not inconsistent with such direction.




          In the event the Trustee takes any action or follows any direction pursuant to this Indenture,
the Trustee shall be entitled to indemnification against any loss or expense caused by taking such
action or following such direction.




SECTION 6.06. Limitation on Suits.




          A Holder may not pursue any remedy with respect to this Indenture or the Notes unless:





     (1) the Holder gives to the Trustee written notice of a continuing Event of Default;




     (2) the Holder or Holders of at least 25% in principal amount of the outstanding Notes
make a written request to the Trustee to pursue the remedy;




     (3) such Holder or Holders offer and provide to the Trustee reasonable indemnity or
security against any loss, liability or expense satisfactory to the Trustee;




     (4) the Trustee does not comply with the request within 30 days after receipt of the
request and the offer of indemnity and security; and



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     (5) during such 30-day period the Holder or Holders of a majority in principal amount
of the outstanding Notes do not give the Trustee a direction which, in the opinion of the
Trustee, is inconsistent with the request.



          A Holder may not use this Indenture to prejudice the rights of another Holder or to obtain a
preference or priority over such other Holder.




SECTION 6.07. Rights of Holders To Receive Payment.




     Notwithstanding any other provision of this Indenture, the right of any Holder to receive
payment of the principal of, premium, if any, and interest on a Note, on or after the respective
due dates expressed in such Note, 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 the Holder.



SECTION 6.08. Collection Suit by Trustee.




          If a Default in payment of principal or interest specified in Section 6.01(1) occurs and is
continuing, the Trustee may recover judgment in its own name and as trustee of an express trust
against the Issuer or any other obligor on the Notes for the whole amount of the principal of,
premium, if any, and accrued interest on the Notes and fees remaining unpaid, together with
interest on overdue principal and premium, if any, and, to the extent that payment of such interest
is lawful, interest on overdue installments of interest, in each case at the rate per annum borne
by the Notes and such further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.




SECTION 6.09. Trustee May File Proofs of Claim.




          The Trustee may file such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for the compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel) and the Holders
allowed in any judicial proceedings relating to the Issuer, its creditors or its property and shall
be entitled and empowered to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same, and any Custodian in any such judicial
proceedings is hereby authorized by each Holder to make such payments to the Trustee and, in the
event that the Trustee shall consent to the making of such payments directly to the Holders, to pay
to the Trustee any amount due to it for the compensation, expenses, disbursements and advances of
the Trustee, its agent and counsel, and any other amounts due the Trustee under Section 7.07.
Nothing herein contained 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.




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The Trustee shall be entitled to participate as a member of any officer committee of creditors
in the matters as it deems necessary or advisable.




SECTION 6.10. Priorities.




          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 and the Collateral Agent for amounts due under Section 7.07;




     SECOND: to Holders for interest accrued on the Notes, ratably, without preference or
priority of any kind, according to the amounts due and payable on the Notes for interest;




     THIRD: to Holders for the principal and premium, if any, due and unpaid on the Notes,
ratably, without preference or priority of any kind, according to the amounts due and
payable on the Notes for principal; and




     FOURTH: to the Issuer.



          The Trustee, upon prior notice to the Issuer, may fix a Record Date and payment date for any
payment to Holders pursuant to this Section 6.10.




SECTION 6.11. Undertaking for Costs.




          In any suit for the enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay the costs of the
suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’
fees and expenses, against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section 6.11 does not apply to a
suit by the Trustee, a suit by a Holder pursuant to Section 6.07, or a suit by a Holder or Holders
of more than 10% in principal amount of the outstanding Notes.




ARTICLE VII




TRUSTEE




SECTION 7.01. Duties of Trustee.




          (a) If an Event of Default known to the Trustee has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture




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and use the same degree of care and skill in their exercise as a prudent person would exercise
or use under the circumstances in the conduct of his or her own affairs, subject however to Section
10.11(j) hereof.




          (b) Except during the continuance of an Event of Default known to the Trustee:





     (1) The Trustee need perform only those duties as are specifically set forth herein and
no duties, covenants, responsibilities or obligations shall be implied in this Indenture
against the Trustee.




     (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 (including Officers’ Certificates) or opinions (including Opinions of Counsel)
furnished to the Trustee and conforming to the requirements of this Indenture. However, in
the case of any such certificates or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements of this Indenture.



          (c) Notwithstanding anything to the contrary herein, 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 7.01.




     (2) The Trustee shall not be liable for any error of judgment made in good faith by a
Responsible Officer, 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 6.05.



          (d) No provision of this Indenture shall require the Trustee to expend or risk its own funds
or otherwise incur any financial liability in the performance of any of its duties hereunder or to
take or omit to take any action under this Indenture or take any action at the request or direction
of Holders if it shall have reasonable grounds for believing that repayment of such funds is not
assured to it.




          (e) Whether or not therein expressly so provided, every provision of this Indenture that in
any way relates to the Trustee is subject to this Section 7.01.




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          (f) The Trustee shall not be liable for interest on any money received by it except as the
Trustee may agree in writing with the Issuer. Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law.




          (g) In the absence of bad faith, negligence or willful misconduct on the part of the Trustee,
the Trustee shall not be responsible for the application of any money by any Paying Agent other
than the Trustee.




SECTION 7.02. Rights of Trustee.




          Subject to Section 7.01:





     (a) The Trustee may rely conclusively on any document believed by it to be genuine and
to have been signed or presented by the proper Person. The Trustee need not investigate any
fact or matter stated in the document.




     (b) Before the Trustee acts or refrains from acting, it may require an Officers’
Certificate and an Opinion of Counsel, which shall conform to the provisions of Section
12.05. The Trustee shall not be liable for any action it takes or omits to take in good
faith in reliance on such certificate or opinion.




     (c) The Trustee may act through its attorneys and agents and shall not be responsible
for the misconduct or negligence of any agent (other than an agent who is an employee of the
Trustee) appointed with due care.




     (d) The Trustee shall not be liable for any action it takes or omits to take in good
faith which it reasonably believes to be authorized or within its rights or powers.




     (e) The Trustee may consult with counsel of its selection and the advice or opinion of
such counsel as to matters of law shall be full and complete authorization and protection
from liability in respect of any action taken, omitted or suffered by it hereunder in good
faith and in accordance with the advice or opinion of such counsel.




     (f) The Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request, order or direction of any of the Holders
pursuant to the provisions of this Indenture, unless such Holders shall have offered to the
Trustee reasonable security or indemnity satisfactory to it against the costs, expenses and
liabilities which may be incurred therein or thereby.




     (g) The Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate (including any Officers’ Certificate), statement,
instrument, opinion (including any Opinion of Counsel), notice, request, direction, consent,
order, bond, debenture, or other paper or document.



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     (h) The Trustee shall not be required to give any bond or surety in respect of the
performance of its powers and duties hereunder.




     (i) The permissive rights of the Trustee to do things enumerated in this Indenture
shall not be construed as duties.




     (j) The Trustee shall not be deemed to have notice of any Default unless a Responsible
Officer of the Trustee has actual knowledge thereof or unless written notice of any event
which is in fact such a default is received by the Trustee at the Corporate Trust Office of
the Trustee, and such notice references the Notes and this Indenture.




     (k) The rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder, and to each agent,
custodian and other Person employed to act hereunder.



SECTION 7.03. Individual Rights of Trustee.




          The Trustee in its individual or any other capacity may become the owner or pledgee of the
Notes and may otherwise deal with the Issuer, its Subsidiaries or their respective Affiliates with
the same rights it would have if it were not Trustee. Any Agent may do the same with like rights.
However, the Trustee must comply with Sections 7.10 and 7.11.




SECTION 7.04. Trustee’s Disclaimer.




          The Trustee shall not be responsible for and makes no representation as to the validity or
adequacy of this Indenture or the Notes, it shall not be accountable for the Issuer’s use of the
proceeds from the Notes, and it shall not be responsible for any statement of the Issuer in this
Indenture or any document issued in connection with the sale of the Notes or any statement in the
Notes other than the Trustee’s certificate of authentication. The Trustee makes no representations
with respect to the effectiveness or adequacy of this Indenture.




SECTION 7.05. Notice of Default.




          If a Default occurs and is continuing and the Trustee receives actual notice of such Default,
the Trustee shall mail to each Holder notice of the uncured Default within 60 days after such
notice is received. Except in the case of a Default in payment of the principal of, premium, if
any, or interest on, any Note, including an accelerated payment and the failure to make payment on
the Change of Control Payment Date pursuant to a Change of Control Offer or the Offer Payment Date
pursuant to an Asset Sale Offer or Note Collateral Asset Sale Offer, as applicable, the Trustee may
withhold the notice if and so long as the Board of Directors, the executive committee, or a trust
committee of directors and/or Responsible Officers, of the Trustee in good faith determines that
withholding the notice is in the interest of the Holders.





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SECTION 7.06. Reports by Trustee to Holders.




          Within 60 days after each May 15, beginning with May 15, 2009, the Trustee shall, to the
extent that any of the events described in TIA § 313(a) occurred within the previous twelve months,
but not otherwise, mail to each Holder a brief report dated as of such date that complies with TIA
§ 313(a). The Trustee also shall comply with TIA §§ 313(b), 313(c) and 313(d).




          A copy of each report at the time of its mailing to Holders shall be mailed to the Issuer and
filed with the Commission and each securities exchange, if any, on which the Notes are listed.




          The Issuer shall notify the Trustee if the Notes become listed on any securities exchange or
of any delisting thereof and the Trustee shall comply with TIA § 313(d).




SECTION 7.07. Compensation and Indemnity.




          For purposes of this Section 7.07, the Trustee and Collateral Agent are referred to
collectively as the “Indemnified Parties”, and each is an “Indemnified Party”. The Issuer shall
pay to each Indemnified Party from time to time such compensation as the Issuer and such
Indemnified Party shall from time to time agree in writing for its services hereunder. Neither
Indemnified Party’s compensation shall be limited by any law on compensation of a trustee of an
express trust. The Issuer shall reimburse each Indemnified Party upon request for all reasonable
disbursements, expenses and advances (including reasonable fees and expenses of counsel) incurred
or made by it in addition to the compensation for its services, except any such disbursements,
expenses and advances as may be attributable to such Indemnified Party’s negligence, bad faith or
willful misconduct. Such expenses shall include the reasonable fees and expenses of each
Indemnified Party’s agents and counsel.




          The Issuer shall indemnify each Indemnified Party or any predecessor Indemnified Party and
their respective agents, employees, officers, stockholders and directors for, and hold them
harmless against, any and all loss, damage, claims including taxes (other than taxes based upon,
measured by or determined by the income of such Indemnified Party), liability or expense incurred
by them except for such actions to the extent caused by any negligence, bad faith or willful
misconduct on their part, arising out of or in connection with the acceptance or administration of
this trust including the reasonable costs and expenses of defending themselves against or
investigating any claim or liability in connection with the exercise or performance of any of an
Indemnified Party’s rights, powers or duties hereunder. Each Indemnified Party shall notify the
Issuer promptly of any claim asserted against such Indemnified Party or any of its agents,
employees, officers, stockholders and directors for which it may seek indemnity. The Issuer may,
subject to the approval of the such Indemnified Party (which approval shall not be unreasonably
withheld), defend the claim and such Indemnified Party shall cooperate in the defense. The
Indemnified Party and its agents, employees, officers, stockholders and directors




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subject to the claim may have separate counsel and the Issuer shall pay the reasonable fees
and expenses of such counsel; provided, however, that the Issuer will not be required to pay such
fees and expenses if, subject to the approval of the such Indemnified Party (which approval shall
not be unreasonably withheld), it assumes such Indemnified Party’s defense and there is no conflict
of interest between the Issuer and such Indemnified Party and its agents, employees, officers,
stockholders and directors subject to the claim in connection with such defense as reasonably
determined by such Indemnified Party. The Issuer need not pay for any settlement made without its
written consent. The Issuer need not reimburse any expense or indemnify against any loss or
liability to the extent incurred by an Indemnified Party through its negligence, bad faith or
willful misconduct.




          To secure the Issuer’s payment obligations in this Section 7.07, each Indemnified Party shall
have an equal and ratable senior lien prior to the Notes against all money or property held or
collected by Trustee and Collateral Agent, in such capacities.




          Without prejudice to its rights hereunder, when an Indemnified Party incurs expenses or
renders services after a Default specified in Section 6.01(8) or (9) occurs, such expenses and the
compensation for such services (including the fees and expenses of its agent and counsel) shall
constitute expenses of administration under the Bankruptcy Law.




          Notwithstanding any other provision in this Indenture, the foregoing provisions of this
Section 7.07 shall survive the satisfaction and discharge of this Indenture or the appointment of a
successor Trustee or Collateral Agent.




SECTION 7.08. Replacement of Trustee.




          The Trustee may resign at any time by providing thirty days prior written notice to the
Issuer. The Holders of a majority in principal amount of the outstanding Notes may remove the
Trustee by so notifying the Issuer and the Trustee and may appoint a successor Trustee. The Issuer
may remove the Trustee if:





     (1) the Trustee fails to comply with Section 7.10;




     (2) the Trustee is adjudged a bankrupt or an insolvent;




     (3) a receiver or other public officer takes charge of the Trustee or its property; or




     (4) the Trustee becomes incapable of acting.



          If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any
reason, the Issuer shall notify each Holder of such event and shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders of a




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majority in principal amount of the Notes may appoint a successor Trustee to replace the
successor Trustee appointed by the Issuer.




          A successor Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Issuer. Immediately after that, the retiring Trustee shall transfer, after
payment of all sums then owing to the Trustee pursuant to Section 7.07, all property held by it as
Trustee to the successor Trustee, subject to the Lien provided in Section 7.07, 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. A successor Trustee shall mail
notice of its succession to each Holder. A resignation of the Trustee shall not be effective until
a successor trustee delivers a written acceptance of its appointment in accordance with this
Section 7.08.




          If a successor Trustee does not take office within 60 days after the retiring Trustee resigns
or is removed, the retiring Trustee, the Issuer or the Holders of at least 10% in principal amount
of the outstanding Notes may petition any court of competent jurisdiction for the appointment of a
successor Trustee at the expense of the Issuer.




          If the Trustee fails to comply with Section 7.10, any Holder may petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.




          Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the Issuer’s
obligations under Section 7.07 shall continue for the benefit of the retiring Trustee.




SECTION 7.09. Successor Trustee by Merger, Etc.




          If the Trustee consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another corporation, the resulting, surviving or transferee
corporation without any further act shall, if such resulting, surviving or transferee corporation
is otherwise eligible hereunder, be the successor Trustee; provided that such corporation shall be
otherwise qualified and eligible under this Article VII.




SECTION 7.10. Eligibility; Disqualification.




          This Indenture shall always have a Trustee who satisfies the requirement of TIA §§ 310(a)(1),
310(a)(2) and 310(a)(5). The Trustee shall have a combined capital and surplus of at least
$150,000,000 as set forth in its most recent published annual report of condition. In addition, if
the Trustee is a corporation included in a bank holding company system, the Trustee, independently
of the bank holding company, shall meet the capital requirements of TIA § 310(a)(2). The Trustee
shall comply with TIA § 310(b); provided, however, that there shall be excluded from the operation
of TIA § 310(b)(1) any indenture or indentures under which other securities, or certificates of
interest or participation in other securities, of the Issuer are




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outstanding, if the requirements for such exclusion set forth in TIA § 310(b)(1) are met. The
provisions of TIA § 310 shall apply to the Issuer and any other obligor of the Notes.




SECTION 7.11. Preferential Collection of Claims Against the Issuer.




          The Trustee, in its capacity as Trustee hereunder, shall comply with TIA § 311(a), excluding
any creditor relationship listed in TIA § 311(b). A Trustee who has resigned or been removed shall
be subject to TIA § 311(a) to the extent indicated.




SECTION 7.12. Intercreditor Agreement, Security Agreement and Other Security Documents.




          The Trustee and Collateral Agent is each hereby directed and authorized to execute and deliver
the Intercreditor Agreement, the Security Agreement and any other Security Documents in which it is
named as a party. It is hereby expressly acknowledged and agreed that, in doing so, the Trustee and
the Collateral Agent are not responsible for the terms or contents of such agreements, or for the
validity or enforceability thereof, or the sufficiency thereof for any purpose. Whether or not so
expressly stated therein, in entering into, or taking (or forbearing from) any action under
pursuant to, the Intercreditor Agreement, the Security Agreement or any other Security Documents,
the Trustee and Collateral Agent each shall have all of the rights, immunities, indemnities and
other protections granted to it under this Indenture (in addition to those that may be granted to
it under the terms of such other agreement or agreements).




ARTICLE VIII




DISCHARGE OF INDENTURE; DEFEASANCE




SECTION 8.01. Termination of the Issuer’s Obligations.




          (a) This Indenture, the Note Guarantees and the Security Documents will be discharged and will
cease to be of further effect as to all Notes issued thereunder, except those obligations referred
to in the penultimate paragraph of this Section 8.01, when the Issuer or any Guarantor has paid or
caused to be paid all sums payable by it under this Indenture and, either:





     (1) all Notes that have been authenticated (except lost, stolen or destroyed
Notes that have been replaced or paid and Notes for whose payment money has
theretofore been deposited in trust and thereafter repaid to the Issuer) have been
delivered to the Trustee for cancellation; or




     (2) (A) all Notes that have not been delivered to the Trustee for cancellation
have become due and payable by reason of the making of a notice of



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redemption or otherwise or will become due and payable within one year,
including as a result of a redemption notice properly given pursuant to this
Indenture, and the Issuer or any Guarantor has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust solely for the benefit of the
Holders, cash in U.S. Legal Tender, non-callable Government Securities, or a
combination thereof, in such amounts as will be sufficient without consideration of
any reinvestment of interest, to pay and discharge the entire indebtedness on the
Notes not delivered to the Trustee for cancellation for principal, premium, if any,
and accrued interest to the date of maturity or redemption; (B) no Default or Event
of Default 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, any other instrument to which the
Issuer or any Guarantor is a party or by which the Issuer or any Guarantor is bound;
and (C) the Issuer has delivered irrevocable instructions to the Trustee under this
Indenture to apply the deposited money toward the payment of the Notes at maturity
or on the Redemption Date, as the case may be.




     (b) In addition, the Issuer shall deliver to the Trustee an Officers’ Certificate and
an Opinion of Counsel, each stating that all conditions precedent providing for or relating
to the termination of the Issuer’s obligations under the Notes and this Indenture have been
complied with.



          Subject to the next sentence and notwithstanding the foregoing paragraph, the Issuer’s
obligations in Sections 2.06, 2.07, 2.08, 2.09, 4.02, 7.07, 8.05 and 8.06 shall survive until the
Notes are no longer outstanding pursuant to the last paragraph of Section 2.09. After the Notes
are no longer outstanding, the Issuer’s obligations in Sections 7.07, 8.05 and 8.06 shall survive.




          After such delivery or irrevocable deposit, the Trustee upon request shall acknowledge in
writing the discharge of the Issuer’s and the Guarantor’s obligations under the Notes, this
Indenture, the Note Guarantees and the Security Documents except for those surviving obligations
specified above.




SECTION 8.02. Legal Defeasance and Covenant Defeasance.




          (a) The Issuer may, at its option and at any time, elect to have either paragraph (b) or (c)
below be applied to all outstanding Notes upon compliance with the conditions set forth in Section
8.03.




          (b) Upon the Issuer’s exercise under paragraph (a) hereof of the option applicable to this
paragraph (b), the Issuer and Guarantors shall, subject to the satisfaction of the conditions set
forth in Section 8.03, be deemed to have been discharged from their respective obligations with
respect to all outstanding Notes and Note Guarantees on the date the conditions




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set forth below are satisfied (hereinafter, “Legal Defeasance”). For this purpose, Legal
Defeasance means that the Issuer shall be deemed to have paid and discharged the entire
Indebtedness represented by the outstanding Notes, which shall thereafter be deemed to be
“outstanding” only for the purposes of Section 8.04 hereof and to have satisfied all its other
obligations under such Notes, this Indenture, the Note Guarantees and the Security Documents (and
the Trustee, on demand of and at the expense of the Issuer, shall execute proper instruments
acknowledging the same), except for the following provisions which shall survive until otherwise
terminated or discharged hereunder:





     (1) the rights of Holders of outstanding Notes to receive payments in respect of the
principal of, or interest or premium, if any, on such Notes when such payments are due from
the trust referred to below;




     (2) the Issuer’s obligations under Sections 2.06, 2.07, 2.08, 2.09 and 4.02;




     (3) the rights, powers, trusts, duties and immunities of the Trustee, Collateral Agent
and the Issuer’s and the Guarantors’ obligations in connection therewith; and




     (4) this Article VIII.



          Subject to compliance with this Article VIII, the Issuer may exercise its option under this
Section 8.02(b) notwithstanding the prior exercise of its option under Section 8.02(c) hereof.




          (c) Upon the Issuer’s exercise under paragraph (a) hereof of the option applicable to this
paragraph (c), the Issuer shall, subject to the satisfaction of the conditions set forth in Section
8.03 hereof, be released from its obligations under the covenants contained in Sections 4.04, 4.05,
4.07, 4.09 through 4.26 and clauses (3) and (4) of Section 5.01(a) hereof with respect to the
outstanding Notes on and after the date the conditions set forth in Section 8.03 are satisfied
(hereinafter, “Covenant Defeasance”), and the Notes shall thereafter be deemed not “outstanding”
for the purposes of any direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall continue to be deemed
“outstanding” for all other purposes hereunder (it being understood that such Notes shall not be
deemed outstanding for accounting purposes). For this purpose, Covenant Defeasance means that,
with respect to the outstanding Notes, the Issuer may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such covenant, whether
directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by
reason of any reference in any such covenant to any other provision herein or in any other document
and such omission to comply shall not constitute an Event of Default under Section 6.01 hereof,
but, except as specified above, the remainder of this Indenture and such Notes shall be unaffected
thereby. In addition, upon the Issuer’s exercise under paragraph (a) hereof of the option
applicable to this paragraph (c), subject to the satisfaction of the conditions set forth in
Section 8.03 hereof, clauses (3), (4) (with respect to the Security




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Agreement, other Security Documents and Intercreditor Agreement only), (5), (6), (10) and (11)
of Section 6.01 hereof shall not constitute Events of Default.




SECTION 8.03. Conditions to Legal Defeasance or Covenant Defeasance.




          The following shall be the conditions to the application of either Section 8.02(b) or 8.02(c)
hereof to the outstanding Notes:




          In order to exercise either Legal Defeasance or Covenant Defeasance:





     (1) the Issuer must irrevocably deposit with the Trustee, in trust, for the benefit of
the Holders of the Notes, cash in U.S. Legal Tender, non-callable Government Securities, 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, or interest and
premium, if any, on the outstanding Notes on the Stated Maturity or on the applicable
Redemption Date, as the case may be, and the Issuer must specify whether the Notes are being
defeased to maturity or to a particular Redemption Date;




     (2) in the case of Legal Defeasance, the Issuer shall have delivered to the Trustee an
Opinion of Counsel reasonably acceptable to the Trustee confirming that (a) the Issuer has
received from, or there has been published by, the Internal Revenue Service a ruling or
(b) since the date of this Indenture, there has been a change in the applicable federal
income tax law, in either case, to the effect that, and based thereon such Opinion of
Counsel shall confirm that, the Holders of the outstanding Notes will not recognize income,
gain or loss for federal income tax purposes as a result of such Legal Defeasance and will
be subject to 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 Issuer shall have delivered to the Trustee
an Opinion of Counsel reasonably acceptable to the Trustee confirming that the Holders of
the outstanding Notes will not recognize income, gain or loss for federal income tax
purposes as a result of such Covenant Defeasance and will be subject to federal income tax
on the same amounts, in the same manner and at the same times as would have been the case if
such Covenant Defeasance had not occurred;




     (4) no Default or Event of Default shall have occurred and be continuing on the date of
such deposit (other than a Default or Event of Default resulting from the borrowing of funds
to be applied to such deposit and the grant of any Lien securing such borrowing);




     (5) such Legal Defeasance or Covenant Defeasance will not result in a breach or
violation of, or constitute a default under any material agreement or instrument to



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which the Issuer or any of its Subsidiaries is a party or by which the Issuer or any of
its Subsidiaries is bound;




     (6) the Issuer must deliver to the Trustee an Officers’ Certificate stating that the
deposit was not made by the Issuer with the intent of preferring the Holders of Notes over
the other creditors of the Issuer with the intent of defeating, hindering, delaying or
defrauding creditors of the Issuer or others; and




     (7) the Issuer must deliver to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the
Covenant Defeasance have been complied with.



SECTION 8.04. Application of Trust Money.




          The Trustee or Paying Agent shall hold in trust U.S. Legal Tender and Government Securities
deposited with it pursuant to this Article VIII, and shall apply the deposited U.S. Legal Tender
and the money from Government Securities in accordance with this Indenture to the payment of the
principal of, premium, if any, and interest, on the Notes. The Trustee shall be under no
obligation to invest said U.S. Legal Tender and Government Securities except as it may agree with
the Issuer.




          The Issuer shall pay and indemnify the Trustee against any tax, fee or other charge imposed on
or assessed against the U.S. Legal Tender and Government Securities deposited pursuant to
Section 8.03 or the principal, premium, if any, and interest received in respect thereof other than
any such tax, fee or other charge which by law is for the account of the Holders of the outstanding
Notes.




          Anything in this Article VIII to the contrary notwithstanding, the Trustee shall deliver or
pay to the Issuer from time to time upon the Issuer’s request any U.S. Legal Tender and Government
Securities held by it as provided in Section 8.03 which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification thereof delivered to
the Trustee, 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 8.05. Repayment to the Issuer.




          Subject to this Article VIII, the Trustee and the Paying Agent shall promptly pay to the
Issuer upon request any excess U.S. Legal Tender and Government Securities held by them at any time
and thereupon shall be relieved from all liability with respect to such money. The Trustee and the
Paying Agent shall pay to the Issuer upon request any money held by them for the payment of the
principal of, premium, if any, or interest that remains unclaimed for two years; provided that the
Trustee or such Paying Agent, before being required to make any payment, may at the expense of the
Issuer cause to be published once in a newspaper of general circulation in the City of New York or
mail to each Holder entitled to such money notice that




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such money remains unclaimed and that after a date specified therein which shall be at least
30 days from the date of such publication or mailing any unclaimed balance of such money then
remaining will be repaid to the Issuer. After payment to the Issuer, Holders entitled to such
money must look to the Issuer for payment as general creditors unless an applicable law designates
another Person.




SECTION 8.06. Reinstatement.




          If the Trustee or Paying Agent is unable to apply any U.S. Legal Tender and Government
Securities in accordance with this Article VIII 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 Issuer’s and Guarantor’s obligations under this Indenture, the
Notes, the Note Guarantees and the Security Documents shall be revived and reinstated as though no
deposit had occurred pursuant to this Article VIII until such time as the Trustee or Paying Agent
is permitted to apply all such U.S. Legal Tender and Government Securities in accordance with this
Article VIII; provided that if the Issuer has made any payment of interest on or principal of any
Notes because of the reinstatement of its obligations, the Issuer shall be subrogated to the rights
of the Holders of such Notes to receive such payment from the U.S. Legal Tender and Government
Securities held by the Trustee or Paying Agent.




ARTICLE IX




AMENDMENTS, SUPPLEMENTS AND WAIVERS




SECTION 9.01. Without Consent of Holders.




          Notwithstanding Section 9.02 of this Indenture, without the consent of any Holder of Notes,
the Issuer, the Guarantors (to the extent a party to the applicable document) and the Trustee (and
to the extent applicable the Collateral Agent) may amend or supplement this Indenture, the Notes,
the Note Guarantees, the Security Documents or the Intercreditor Agreement:





     (1) to cure any ambiguity, defect or inconsistency;




     (2) to provide for uncertificated Notes in addition to or in place of certificated
Notes;




     (3) to provide for the assumption of the Issuer’s or any Guarantor’s obligations to
Holders of Notes in the case of a merger or consolidation or sale of all or substantially
all of the Issuer’s or such Guarantor’s assets;



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     (4) to make any change that would provide any additional rights or benefits to the
Holders of Notes or that does not adversely affect in any material respect the legal rights
under this Indenture of any such Holder;




     (5) to comply with requirements of the Commission in order to effect or maintain the
qualification of this Indenture under the TIA;




     (6) to provide for the issuance of Additional Notes in accordance with this Indenture;




     (7) to add Guarantors with respect to the Notes or to secure the Notes;




     (8) to add additional assets as Collateral;




     (9) to release Collateral from the Lien or any Guarantor from its Guarantee, in each
case pursuant to this Indenture, the Security Documents and the Intercreditor Agreement when
permitted or required by the Indenture, the Security Documents or the Intercreditor
Agreement;




     (10) to comply with the rules of any applicable securities depositary;




     (11) to provide for a successor trustee or collateral agent in accordance with the
terms of this Indenture or to otherwise comply with any requirement of this Indenture; or




     (12) to conform the text of this Indenture, Notes, the Security Agreement, any other
Security Documents or the Intercreditor Agreement to any provision of the “Description of
Notes” section of the Offering Circular to the extent such provision was intended to be a
verbatim recitation of the text of the “Description of Notes” section of the Offering
Circular;


provided that the Issuer has delivered to the Trustee an Opinion of Counsel and an Officers’
Certificate, each stating that such amendment or supplement complies with the provisions of this
Section 9.01.




SECTION 9.02. With Consent of Holders.




          (a) Subject to Sections 6.04 and 6.07, the Issuer and the Trustee (and the Collateral Agent to
the extent a party to the applicable documents), together, with the written consent of the Holder
or Holders of a majority in aggregate principal amount of the outstanding Notes (which may include
consents obtained in connection with a tender offer or exchange offer for the Notes), may amend or
supplement this Indenture, the Notes, the Note Guarantees, the Security Documents and the
Intercreditor Agreement or may waive compliance by the Issuer or any Subsidiary Guarantor with any
provision of this Indenture, the Notes, such Subsidiary Guarantor’s Subsidiary Guaranty, the
Security Documents and the Intercreditor Agreement.




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Section 2.08 hereof shall determine which Notes are considered to be “outstanding” for
purposes of this Section 9.02.




          (b) Notwithstanding Section 9.02(a), without the consent of each Holder affected, an
amendment, supplement or waiver, including a waiver pursuant to Section 6.04, may not (with respect
to any Notes held by a non-consenting Holder):





     (1) reduce the percentage of principal amount of Notes whose Holders must consent to an
amendment, supplement or waiver;




     (2) reduce the principal of or change the Stated Maturity of any Note or alter the
provisions relating to the Redemption Price of any Note at any time;




     (3) reduce the rate of or change the time for payment of interest on any Note;




     (4) waive a Default or Event of Default in the payment of principal of, or interest or
premium, on the Notes (except a rescission of acceleration of the Notes by the Holders of at
least a majority in aggregate principal amount of the Notes and a waiver of the payment
default that resulted from such acceleration);




     (5) make any Note payable in money other than U.S. Legal Tender;




     (6) release any Guarantor from any of its obligations under its Note Guarantee or this
Indenture, except in accordance with the terms of this Indenture and such Note Guarantee;




     (7) make any change in Section 6.04 or 6.07 hereof or this Section 9.02;




     (8) expressly subordinate such Note or any Note Guarantee to any other Indebtedness of
the Issuer or any Guarantor or make any other change in the ranking or priority of any Note
that would adversely affect the Holders;




     (9) make any change in the Intercreditor Agreement or in the provisions of the
Indenture or any Security Document dealing with the application of proceeds of the
Collateral that would adversely affect the Holders; or




     (10) make any change in the provisions of this Indenture relating to waivers of past
Defaults or the rights of Holders of Notes to receive payments of principal of, or interest
or premium or Additional Interest, if any, on the Notes.



          (c) It shall not be necessary for the consent of the Holders under this Section 9.02 to
approve the particular form of any proposed amendment, supplement or waiver but it shall be
sufficient if such consent approves the substance thereof.




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          (d) After an amendment, supplement or waiver under this Section 9.02 becomes effective, the
Issuer shall mail to the Holders affected thereby a notice briefly describing the amendment,
supplement or waiver. Any failure of the Issuer to mail such notice, or any defect therein, shall
not, however, in any way impair or affect the validity of any such amendment, supplement or waiver.




          (e) The Trustee and the Collateral Agent shall be entitled to rely upon an Opinion of Counsel
or Officer’s Certificate delivered pursuant to Section 12.04 hereof as the basis for any
determination that a proposed change or amendment does not adversely affect the Holders.




SECTION 9.03. Compliance with TIA.




          From the date on which this Indenture is qualified under the TIA, every amendment, waiver or
supplement of this Indenture or the Notes shall comply with the TIA as then in effect.




SECTION 9.04. Revocation and Effect of Consents.




          (a) Until an amendment, waiver or supplement becomes effective, a consent to it by a Holder is
a continuing consent by the Holder 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 is not
made on any Note. However, any such Holder or subsequent Holder may revoke the consent as to his
Note or portion of his Note by notice to the Trustee or the Issuer received before the date on
which the Trustee receives an Officers’ Certificate certifying that the Holders of the requisite
principal amount of the Notes have consented (and not theretofore revoked such consent) to the
amendment, supplement or waiver.




          (b) The Issuer may, but shall not be obligated to, fix a Record Date for the purpose of
determining the Holders entitled to consent to any amendment, supplement or waiver which Record
Date shall be at least 30 days prior to the first solicitation of such consent. If a Record Date
is fixed, then notwithstanding the last sentence of the immediately preceding paragraph, those
Persons who were Noteholders at such Record Date (or their duly designated proxies), and only those
Persons, shall be entitled to revoke any consent previously given, whether or not such Persons
continue to be Holders after such Record Date. No such consent shall be valid or effective for
more than 90 days after such Record Date. The Issuer shall inform the Trustee in writing of the
fixed Record Date if applicable.




          (c) After an amendment, supplement or waiver becomes effective, it shall bind every
Noteholder, unless it makes any change described in Section 9.02(b), in which case, the amendment,
supplement or waiver shall bind only each Holder of a Note who has consented to it and every
subsequent Holder of a Note or portion of a Note that evidences the same debt as the consenting
Holder’s Note; provided that any such waiver shall not impair or affect the right




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of any Holder to receive payment of principal of and interest and premium, if any, on a Note,
on or after the respective due dates expressed in such Note, or to bring suit for the enforcement
of any such payment on or after such respective dates without the consent of such Holder.




SECTION 9.05. Notation on or Exchange of Notes.




          If an amendment, supplement or waiver changes the terms of a Note, the Issuer may require the
Holder of the Note to deliver it to the Trustee. The Issuer shall provide the Trustee with an
appropriate notation on the Note about the changed terms and cause the Trustee to return it to the
Holder at the Issuer’s expense. Alternatively, if the Issuer or the Trustee so determines, the
Issuer in exchange for the Note shall issue and the Trustee shall authenticate a new Note that
reflects the changed terms. Failure to make the appropriate notation or issue a new Note shall not
affect the validity and effect of such amendment, supplement or waiver.




SECTION 9.06. Trustee To Sign Amendments, Etc.




          The Trustee shall execute any amendment, supplement or waiver authorized pursuant to this
Article IX; provided that the Trustee, but shall not be obligated to, execute any such amendment,
supplement or waiver which affects such Person’s own rights, duties or immunities under this
Indenture. The Trustee shall be entitled to receive, and shall be fully protected in relying upon,
an Opinion of Counsel and an Officers’ Certificate each stating that the execution of any
amendment, supplement or waiver authorized pursuant to this Article IX is authorized or permitted
by this Indenture and constituted the legal, valid and binding obligations of the Issuer
enforceable in accordance with its terms. Such Opinion of Counsel shall be at the expense of the
Issuer.




ARTICLE X




SECURITY DOCUMENTS




SECTION 10.01. Collateral and Security Documents.




          (a) The due and punctual payment of the principal of and interest (including
Additional Interest, if any) on the Notes when and as the same shall be due and payable, whether on
an Interest Payment Date, at maturity, by acceleration, repurchase, redemption or otherwise, and
interest on the overdue principal of and interest (including Additional Interest, if any) on the
Notes and performance of all other Obligations of the Issuer and the Guarantors to the Holders, the
Trustee or the Collateral Agent under this Indenture, the Notes, the Intercreditor Agreement and
the Security Documents, according to the terms hereunder or thereunder, shall be secured as
provided in the Security Documents, which define the terms of the Liens that secure the
Obligations, subject to the terms of the Intercreditor Agreement. The Trustee and the Issuer
hereby acknowledge and agree that the Collateral Agent holds the Collateral in trust for the
benefit of the Trustee and the Holders, in each case pursuant to the terms of the Security
Documents and the




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Intercreditor Agreement. Each Holder, by accepting a Note, consents and agrees to the terms
of the Security Documents (including the provisions providing for the possession, use, release and
foreclosure of Collateral) and the Intercreditor Agreement as the same may be in effect or may be
amended from time to time in accordance with their terms and this Indenture and the Intercreditor
Agreement, and authorizes and directs the Collateral Agent to enter into the Security Documents and
the Intercreditor Agreement and to perform its obligations and exercise its rights thereunder in
accordance therewith; provided, however, that if any of the provisions of the Security Documents
limit, qualify or conflict with the duties imposed by the provisions of the TIA, the TIA shall
control. The Issuer shall deliver to the Collateral Agent copies of all documents pursuant to the
Security Documents, and will do or cause to be done all such acts and things as may be reasonably
required by the next sentence of this Section 10.01, to assure and confirm to the Collateral Agent
the security interest in the Collateral contemplated hereby, by the Security Documents or any part
thereof, as from time to time constituted, so as to render the same available for the security and
benefit of this Indenture and of the Notes secured hereby, according to the intent and purposes
herein expressed. The Issuer shall, and shall cause the Subsidiaries of the Issuer to, use its
commercially reasonable efforts to take any and all actions reasonably required to cause the
Security Documents to create and maintain, as security for the Obligations, a valid and enforceable
perfected Lien and security interest in and on all of the Collateral (subject to the terms of the
Intercreditor Agreement), in favor of the Collateral Agent for the benefit of the Secured Parties.




          (b) Notwithstanding the foregoing, (i) the Capital Stock and other securities of the
Subsidiaries of the Issuer that are owned by the Issuer or any Guarantor will constitute Notes
Collateral only to the extent that such Capital Stock and other securities can secure the Notes
without Rule 3-10 or Rule 3-16 of Regulation S X under the Securities Act (“Rule 3-10” and “Rule
3-16,” respectively) (or any other law, rule or regulation) requiring separate financial statements
of such Subsidiary to be filed with the Commission (or any other governmental agency);





     (ii) in the event that either Rule 3-10 or Rule 3-16 requires or is amended, modified or
interpreted by the Commission to require (or is replaced with another rule or regulation, or
any other law, rule or regulation is adopted, which would require) the filing with the
Commission (or any other governmental agency) of separate financial statements of any
Subsidiary (other than the Issuer) due to the fact that such Subsidiary’s Capital Stock and
other securities secure the Notes, the performance of the Obligations or any Guarantee, then
the Capital Stock and other securities of such Subsidiary shall automatically be deemed not
to be part of the Notes Collateral, but only to the extent necessary to not be subject to
such requirement (and, in such event, the Security Documents may be amended or modified,
without the consent of any Holder of the Notes, to the extent necessary to release the
first-priority security interests in the shares of Capital Stock and other securities that
are so deemed to no longer constitute part of the Notes Collateral); and



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     (iii) in the event that either Rule 3-10 or Rule 3-16 is amended, modified or
interpreted by the Commission to permit (or is replaced with another rule or regulation, or
any other law, rule or regulation is adopted, which would permit) such Subsidiary’s Capital
Stock and other securities to secure the Notes in excess of the amount then pledged without
the filing with the Commission of separate financial statements of such Subsidiary, then the
Capital Stock and other securities of such Subsidiary shall automatically be deemed to be a
part of the Notes Collateral but only to the extent necessary to not be subject to any such
financial statement requirement (and, in such event, the Security Documents may be amended
or modified, without the consent of any Holder of the Notes, to the extent necessary to
subject to the Liens under the Security Documents such additional Capital Stock and other
securities).



          (c) In addition to the limitations described in Section 10.01(b), the Notes Collateral will
not include (i) property or assets as to which the Collateral Agent has notified any Grantor in
writing that it has reasonably determined that the costs of obtaining a security interest are
excessive in relation to the value of the security to be afforded thereby and (ii) the Excluded
Assets.




          (d) In the case of any Foreign Subsidiary, the Notes Collateral will be limited to 100% of the
non-voting stock (if any) and 66% of the voting stock of first-tier Material Foreign Subsidiaries
owned by a Guarantor.




SECTION 10.02. Recordings and Opinions.




          (a) To the extent applicable, the Issuer will cause TIA § 313(b), relating to reports, and TIA
§ 314(d), relating to the release of property or securities subject to the Lien of the Security
Documents, to be complied with.




          (b) Any release of Collateral permitted by Section 10.03 hereof will be deemed not to impair
the Liens under this Indenture, the Security Agreement and the other Security Documents in
contravention thereof. Any certificate or opinion required by TIA § 314(d) may be made by an
officer or legal counsel, as applicable, of the Issuer except in cases where TIA § 314(d) requires
that such certificate or opinion be made by an independent Person, which Person will be an
independent engineer, appraiser or other expert selected by or reasonably satisfactory to the
Trustee.




          (c) Notwithstanding anything to the contrary in this Section 10.02, the Issuer will not be
required to comply with all or any portion of TIA § 314(d) if it determines, in good faith based on
the written advice of counsel, a copy of which written advice shall be provided to the Trustee,
that under the terms of TIA § 314(d) or any interpretation or guidance as to the meaning thereof of
the Commission and its staff, including “no action” letters or exemptive orders, all or any portion
of TIA § 314(d) is inapplicable to any release or series of releases of Collateral.




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SECTION 10.03. Release of Collateral.




          (a) Subject to Section 10.03(b) and 10.04 hereof, Collateral may be released from the Lien and
security interest created by the Security Documents at any time or from time to time in accordance
with the provisions of the Security Documents, the Intercreditor Agreement or as provided hereby.
The Issuer and the Guarantors will be entitled to a release of property and other assets included
in the Collateral from the Liens securing the Notes, and the Trustee (subject to its receipt of an
Officer Certificate and Opinion of Counsel as provided below) shall release, or instruct the
Collateral Agent to release, as applicable, the same from such Liens at the Issuer’s sole cost and
expense, under one or more of the following circumstances:





     (1) to enable the Issuer or any Guarantor to sell, exchange or otherwise dispose of any
of the Collateral to the extent not prohibited under Section 4.13;




     (2) in the case of a Guarantor that is released from its Guarantee with respect to the
Notes, the release of the property and assets of such Guarantor;




     (3) pursuant to an amendment or waiver in accordance with Article 9 of this Indenture;
or




     (4) if the Notes have been discharged or defeased pursuant to Section 8.01 or
Section 8.02.



          The second-priority lien on the ABL Collateral securing the Notes will terminate and be
released automatically if the first-priority liens on the ABL Collateral are released by the Bank
Collateral Agent (unless, at the time of such release of such first-priority liens, an Event of
Default shall have occurred and be continuing under this Indenture). Notwithstanding the existence
of an Event of Default, the second-priority lien on the ABL Collateral securing the Notes shall
also terminate and be released automatically to the extent the first-priority liens on the ABL
Collateral are released by the Bank Collateral Agent in connection with a sale, transfer or
disposition of ABL Collateral that is either not prohibited under the Indenture or occurs in
connection with the foreclosure of, or other exercise of remedies with respect to, such ABL
Collateral by the Bank Collateral Agent (except with respect to any proceeds of such sale, transfer
or disposition that remain after satisfaction in full of the Lenders Debt). The liens on the
Collateral securing the Notes that otherwise would have been released pursuant to the first
sentence of this paragraph will be released when such Event of Default and all other Events of
Default under this Indenture cease to exist.




          Upon receipt of an Officers’ Certificate and an Opinion of Counsel certifying that all
conditions precedent under the Indenture and the Security Documents (and TIA Section 314(d)), if
any, to such release have been met and any necessary or proper instruments of termination,
satisfaction or release prepared by the Issuer, the Trustee shall, or shall cause the Collateral
Agent, to execute, deliver or acknowledge (at the Issuer’s
expense) such instruments or re-




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leases to evidence the release of any Collateral permitted to be released pursuant to this
Indenture or the Security Documents or the Intercreditor Agreement. Neither the Trustee nor the
Collateral Agent shall be liable for any such release undertaken in good faith in reliance upon any
such Officer Certificate or Opinion of Counsel, and notwithstanding any term hereof or in any
Security Document to the contrary, the Trustee and Collateral Agent shall not be under any
obligation to release any such Lien and security interest, or execute and deliver any such
instrument of release, satisfaction or termination, unless and until it receives such Officer
Certificate and Opinion of Counsel.




SECTION 10.04. RESERVED.




SECTION 10.05. Certificates of the Trustee.




          In the event that the Issuer wishes to release Collateral in accordance with this Indenture,
the Security Documents and the Intercreditor Agreement at a time when the Trustee is not itself
also the Collateral Agent and the Issuer has delivered the certificates and documents required by
the Security Documents and Section 10.03 hereof, if TIA § 314(d) is applicable to such releases
(the applicability of which will be established to the reasonable satisfaction of the Trustee
pursuant to Section 10.04 or otherwise), the Trustee will determine whether it has received all
documentation required by TIA § 314(d) in connection with such release (which determination may be
based upon the Opinion of Counsel hereafter described) and, based on an Opinion of Counsel pursuant
to Section 12.04, will deliver a certificate to the Collateral Agent setting forth such
determination. The Trustee, however, shall have no duty to confirm the legality, genuineness,
accuracy, contents or validity of such documents (or any signature appearing therein), its sole
duty being to certify its receipt of such documents which, on their face (and assuming that they
are what they purport to be), conform to § 314(d) of the TIA.




SECTION 10.06. Suits To Protect the Collateral.




          Subject to the provisions of Article VII hereof and the Intercreditor Agreement, the Trustee
in its sole discretion and without the consent of the Holders, on behalf of the Holders, may or may
direct the Collateral Agent to take all actions it deems necessary or appropriate in order to:




          (a) enforce any of the terms of the Security Documents; and




          (b) collect and receive any and all amounts payable in respect of the Obligations hereunder.




          Subject to the provisions of the Security Documents and the Intercreditor Agreement, the
Trustee shall have power to institute and to maintain such suits and proceedings as it may deem
expedient to prevent any impairment of the Collateral by any acts which may be unlawful or in
violation of any of the Security Documents or this Indenture, and such suits and proceedings as the
Trustee, in its sole discretion, may deem expedient to preserve or protect its




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interests and the interests of the Holders in the Collateral (including power to institute and
maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or
other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if
the enforcement of, or compliance with, such enactment, rule or order would impair the Lien on the
Collateral or be prejudicial to the interests of the Holders or the Trustee). Nothing in this
Section 10.06 shall be considered to impose any such duty or obligation to act on the part of the
Trustee.





		
	SECTION 10.07.	 	Authorization of Receipt of Funds by the Trustee Under the Security Documents.





          Subject to the provisions of the Intercreditor Agreement, the Trustee is authorized to receive
any funds for the benefit of the Holders distributed under the Security Documents, and to make
further distributions of such funds to the Holders according to the provisions of this Indenture.




SECTION 10.08. Purchaser Protected.




          In no event shall any purchaser in good faith of any property purported to be released
hereunder be bound to ascertain the authority of the Collateral Agent or the Trustee to execute the
release or to inquire as to the satisfaction of any conditions required by the provisions hereof
for the exercise of such authority or to see to the application of any consideration given by such
purchaser or other transferee; nor shall any purchaser or other transferee of any property or
rights permitted by this Article X to be sold be under any obligation to ascertain or inquire into
the authority of the Issuer or the applicable Guarantor to make any such sale or other transfer.




SECTION 10.09. Powers Exercisable by Receiver or Trustee.




          In case the Collateral shall be in the possession of a receiver or trustee, lawfully
appointed, the powers conferred in this Article X upon the Issuer or a Guarantor with respect to
the release, sale or other disposition of such property may be exercised by such receiver or
trustee, and an instrument signed by such receiver or trustee shall be deemed the equivalent of any
similar instrument of the Issuer or a Guarantor or of any officer or officers thereof required by
the provisions of this Article X; and if the Trustee shall be in the possession of the Collateral
under any provision of this Indenture, then such powers may be exercised by the Trustee.




SECTION 10.10. Release Upon Termination of the Issuer’s Obligations.




          In the event that the Issuer delivers to the Trustee, in form and substance reasonably
acceptable to it, an Officers’ Certificate certifying that (i) payment in full of the principal of,
together with accrued and unpaid interest (including additional interest, if any) on, the Notes and
all other Obligations under this Indenture, the Guarantees and the Security Documents that are due
and payable at or prior to the time such principal, together with accrued and unpaid interest




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(including additional interest, if any), are paid or (ii) the Issuer shall have exercised its
legal defeasance option or its covenant defeasance option, in each case in compliance with the
provisions of Article VIII, the Trustee shall deliver to the Issuer and the Collateral Agent a
notice stating that the Trustee, on behalf of the Holders, disclaims and gives up any and all
rights it has in or to the Collateral (other than with respect to funds held by the Trustee
pursuant to Article VIII), and any rights it has under the Security Documents, and upon receipt by
the Collateral Agent of such notice, the Collateral Agent shall be deemed not to hold a Lien in the
Collateral on behalf of the Trustee and shall do or cause to be done all acts reasonably necessary
to release such Lien as soon as is reasonably practicable.




SECTION 10.11. Collateral Agent.




          (a) The Trustee and each of the Holders by acceptance of the Notes hereby designates and
appoints the Collateral Agent as its agent under this Indenture, the Security Agreement, the
Security Documents and the Intercreditor Agreement and the Trustee and each of the Holders by
acceptance of the Notes hereby irrevocably authorizes the Collateral Agent to take such action on
its behalf under the provisions of this Indenture, the Security Agreement, the Security Documents
and the Intercreditor Agreement and to exercise such powers and perform such duties as are
expressly delegated to the Collateral Agent by the terms of this Indenture, the Security Agreement,
the Security Documents and the Intercreditor Agreement, together with such powers as are reasonably
incidental thereto. The Collateral Agent agrees to act as such on the express conditions contained
in this Section 10.11. The provisions of this Section 10.11 are solely for the benefit of the
Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors shall have any
rights as a third party beneficiary of any of the provisions contained herein other than as
expressly provided in Section 10.03. Notwithstanding any provision to the contrary contained
elsewhere in this Indenture, the Security Agreement, the Security Documents and the Intercreditor
Agreement, the Collateral Agent shall not have any duties or responsibilities, except those
expressly set forth herein, nor shall the Collateral Agent have or be deemed to have any fiduciary
relationship with the Trustee, any Holder or any Grantor, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this Indenture, the
Security Agreement, the Security Documents and the Intercreditor Agreement or otherwise exist
against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use
of the term “agent” in this Indenture with reference to the Collateral Agent is not intended to
connote any fiduciary or other implied (or express) obligations arising under agency doctrine of
any applicable law. Instead, such term is used merely as a matter of market custom, and is
intended to create or reflect only an administrative relationship between independent contracting
parties. Except as expressly otherwise provided in this Indenture, the Collateral Agent shall have
and may use its sole discretion with respect to exercising or refraining from exercising any
discretionary rights or taking or refraining from taking any actions which the Collateral Agent is
expressly entitled to take or assert under this Indenture, the Security Agreement, the Security
Documents and the Intercreditor Agreement, including the exercise of remedies pursuant to Article
VI, and any action so taken or not taken shall be deemed consented to by the Trustee and the
Holders.




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          (b) The Collateral Agent may execute any of its duties under this Indenture, the Security
Documents or the Intercreditor Agreement by or through agents, employees, attorneys-in-fact or
through its Related Persons and shall be entitled to advice of counsel concerning all matters
pertaining to such duties. The Collateral Agent shall not be responsible for the negligence or
misconduct of any agent, employee, attorney-in-fact or Related Person that it selects as long as
such selection was made without negligence or willful misconduct.




          (c) None of the Collateral Agent, any of its respective Related Persons shall (i) be liable
for any action taken or omitted to be taken by any of them under or in connection with this
Indenture or the transactions contemplated hereby (except for its own negligence or willful
misconduct) or under or in connection with the Security Agreement, any Security Document or
Intercreditor Agreement or the transactions contemplated thereby (except for its own negligence or
willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for
any recital, statement, representation, warranty, covenant or agreement made by the Issuer or any
Grantor or Affiliate of any Grantor, or any officer or Related Person thereof, contained in this or
any Indenture, or in any certificate, report, statement or other document referred to or provided
for in, or received by the Collateral Agent under or in connection with, this or any other
Indenture, the Security Agreement, the Security Documents or the Intercreditor Agreement, or the
validity, effectiveness, genuineness, enforceability or sufficiency of this or any other Indenture,
the Security Agreement, the Security Documents or the Intercreditor Agreement, or for any failure
of any Grantor or any other party to this Indenture, the Security Agreement, the Security Documents
or the Intercreditor Agreement to perform its obligations hereunder or thereunder. None of the
Collateral Agent or any of its respective Related Persons shall be under any obligation to the
Trustee or any Holder to ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this or any other Indenture, the Security Agreement, the
Security Documents or the Intercreditor Agreement or to inspect the properties, books, or records
of any Grantor or any Grantor’s Affiliates.




          (d) The Collateral Agent shall be entitled to rely, and shall be fully protected in relying,
upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile,
telex, or telephone message, statement, or other document or conversation believed by it to be
genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and
upon advice and statements of legal counsel (including, without limitation, counsel to any
Grantor), independent accountants and other experts and advisors selected by the Collateral Agent.
The Collateral Agent shall be fully justified in failing or refusing to take any action under this
or any other Indenture, the Security Documents or the Intercreditor Agreement unless it shall first
receive such advice or concurrence of the Trustee as it deems appropriate and, if it so requests,
it shall first be indemnified to its satisfaction by the Holders against any and all liability and
expense which may be incurred by it by reason of taking or continuing to take any such action. The
Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting,
under this or any other Indenture, the Security Documents or the Intercreditor Agreement in
accordance with a request or consent of the Trustee and such request and any action taken or
failure to act pursuant thereto shall be binding upon all of the Holders.




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          (e) The Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of
any Default or Event of Default, unless the Collateral Agent shall have received written notice
from the Trustee or a Grantor referring to this Indenture, describing such Default or Event of
Default and stating that such notice is a “notice of default.” The Collateral Agent shall take
such action with respect to such Default or Event of Default as may be requested by the Trustee in
accordance with Article VI (subject to Section 10.11); provided, however, that unless and until the
Collateral Agent has received any such request, the Collateral Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable.




          (f) U.S. Bank National Association and its respective Affiliates may make loans to, issue
letters of credit for the account of, accept deposits from, acquire equity interests in and
generally engage in any kind of banking, trust, financial advisory, underwriting, or other business
with any Grantor and its Affiliates as though it was not the Collateral Agent hereunder and without
notice to or consent of the Trustee. The Trustee and the Holders acknowledge that, pursuant to
such activities, U.S. Bank National Association or its respective Affiliates may receive
information regarding any Grantor or its Affiliates (including information that may be subject to
confidentiality obligations in favor of any such Grantor or such Affiliate) and acknowledge that
the Collateral Agent shall not be under any obligation to provide such information to the Trustee
or the Holders. Nothing herein shall impose or imply any obligation on the part of the U.S. Bank
National Association to advance funds.




          (g) The Collateral Agent may resign at any time upon thirty (30) days prior written notice to
the Trustee and the Grantors, such resignation to be effective upon the acceptance of a successor
agent to its appointment as Collateral Agent. If the Collateral Agent resigns under this
Indenture, the Trustee, subject to the consent of the Issuer (which shall not be unreasonably
withheld and which shall not be required during a continuing Event of Default), shall appoint a
successor collateral agent. If no successor collateral agent is appointed prior to the intended
effective date of the resignation of the Collateral Agent (as stated in the notice of resignation),
the Collateral Agent may appoint, after consulting with the Trustee, subject to the consent of the
Issuer (which shall not be unreasonably withheld and which shall not be required during a
continuing Event of Default), a successor collateral agent. If no successor collateral agent is
appointed and consented to by the Issuer pursuant to the preceding sentence within thirty (30) days
after the intended effective date of resignation (as stated in the notice of resignation) the
Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a
successor. Upon the acceptance of its appointment as successor collateral agent hereunder, such
successor collateral agent shall succeed to all the rights, powers and duties of the retiring
Collateral Agent, and the term “Collateral Agent” shall mean such successor collateral agent, and
the retiring Collateral Agent’s appointment, powers and duties as the Collateral Agent shall be
terminated. After the retiring Collateral Agent’s resignation hereunder, the provisions of this
Section 10.11 (and Section 7.07) shall continue to inure to its benefit and the retiring Collateral
Agent shall not by reason of such resignation be deemed to be released from liability as to any
actions taken or omitted to be taken by it while it was the Collateral Agent under this Indenture.




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          (h) The Trustee shall initially act as Collateral Agent and shall be authorized to appoint
co-Collateral Agents as necessary in its sole discretion. Except as otherwise explicitly provided
herein or in the Security Documents or the Intercreditor Agreement, neither the Collateral Agent
nor any of its respective officers, directors, employees or agents or other Related Persons shall
be liable for failure to demand, collect or realize upon any of the Collateral or for any delay in
doing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the
request of any other Person or to take any other action whatsoever with regard to the Collateral or
any part thereof. The Collateral Agent shall be accountable only for amounts that it actually
receives as a result of the exercise of such powers, and neither the Collateral Agent nor any of
its officers, directors, employees or agents shall be responsible for any act or failure to act
hereunder, except for its own willful misconduct, gross negligence or bad faith.




          (i) The Trustee, as such and as Collateral Agent, is authorized and directed to (i) enter into
the Security Agreement and the Security Documents, (ii) enter into the Intercreditor Agreement,
(iii) bind the Holders on the terms as set forth in the Security Agreement and the Security
Documents and the Intercreditor Agreement and (iv) perform and observe its obligations under the
Security Agreement and the Security Documents and the Intercreditor Agreement.




          (j) The Trustee agrees that it shall not (and shall not be obliged to), and shall not instruct
the Collateral Agent to, unless specifically requested to do so by a majority of the Holders, take
or cause to be taken any action to enforce its rights under this Indenture or against any Grantor,
including the commencement of any legal or equitable proceedings, to foreclose any Lien on, or
otherwise enforce any security interest in, any of the Collateral.




          If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or
otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising
under, or relating to, this Indenture, except for any such proceeds or payments received by the
Trustee from the Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from
the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article
VI, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such
endorsements as may be required to negotiate the same to the Collateral Agent.




          (k) The Trustee is each Holder’s agent for the purpose of perfecting the Holders’ security
interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be
perfected only by possession. Should the Trustee obtain possession of any such Collateral, upon
request from the Issuer, the Trustee shall notify the Collateral Agent thereof, and, promptly upon
the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or
otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.




          (l) The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the
Holders to assure that the Collateral exists or is owned by any Grantor or is cared for, protected,
or insured or has been encumbered, or that the Collateral Agent’s Liens have been




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properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or
are entitled to any particular priority, or to determine whether all or the Grantor’s property
constituting collateral intended to be subject to the Lien and security interest of the Security
Documents has been properly and completely listed or delivered, as the case may be, or the
genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all
or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue
exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent
pursuant to this Indenture, any Security Document or the Intercreditor Agreement, it being
understood and agreed that in respect of the Collateral, or any act, omission, or event related
thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion
given the Collateral Agent’s own interest in the Collateral and that the Collateral Agent shall
have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.




          (m) If the Issuer (i) incurs any obligations in respect of Lenders Debt at any time when no
intercreditor agreement is in effect or at any time when Indebtedness constituting Lenders Debt
entitled to the benefit of an existing Intercreditor Agreement is concurrently retired, and (ii)
delivers to the Collateral Agent an Officers’ Certificate so stating and requesting the Collateral
Agent to enter into an intercreditor agreement (on substantially the same terms as the
Intercreditor Agreement) in favor of a designated agent or representative for the holders of the
Lenders Debt so incurred, the Collateral Agent shall (and is hereby authorized and directed to)
enter into such intercreditor agreement (at the sole expense and cost of the Issuer, including
legal fees and expenses of the Collateral Agent), bind the Holders on the terms set forth therein
and perform and observe its obligations thereunder.




          (n) No provision of this Indenture, the Security Agreement, the Intercreditor Agreement or any
Security Document shall require the Collateral Agent (or the Trustee) to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of its duties hereunder
or thereunder or to take or omit to take any action hereunder or thereunder or take any action at
the request or direction of Holders (or the Trustee in the case of the Collateral Agent) if it
shall have reasonable grounds for believing that repayment of such funds is not assured to it.




          (o) The Collateral Agent (i) shall not be liable for any action it takes or omits to take in
good faith which it reasonably believes to be authorized or within its rights or powers, or for any
error of judgment made in good faith by a Responsible Officer, unless it is proved that the
Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be
liable for interest on any money received by it except as the Collateral Agent may agree in writing
with the Issuer (and Money held in trust by the Collateral Agent need not be segregated from other
funds except to the extent required by law), (iii) Collateral Agent may consult with counsel of its
selection and the advice or opinion of such counsel as to matters of law shall be full and complete
authorization and protection from liability in respect of any action taken, omitted or suffered by
it in good faith and in accordance with the advice or opinion of such counsel. The




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grant of permissive rights or powers to the Collateral Agent shall not be construed to impose
duties to act.




          (p) Neither the Collateral Agent nor the Trustee shall be liable for delays or failures in
performance resulting from acts beyond its control. Such acts shall include but not be limited to
acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations
superimposed after the fact, fire, communication line failures, computer viruses, power failures,
earthquakes or other disasters. Neither the Collateral Agent nor the Trustee shall be liable for
any indirect, special or consequential damages (included but not limited to lost profits)
whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of
action.




SECTION 10.12. Designations.




          Except as provided in the next sentence, for purposes of the provisions hereof and the
Intercreditor Agreement requiring the Issuer to designate Indebtedness for the purposes of the
terms “Lenders Debt” and “Other Pari Passu Lien Obligations” or any other such designations
hereunder or under the Intercreditor Agreement, any such designation shall be sufficient if the
relevant designation is set forth in writing, signed on behalf of the Issuer by an Officer and
delivered to the Trustee, the Collateral Agent and the Bank Collateral Agent. For all purposes
hereof and the Intercreditor Agreement, the Issuer hereby designates the Obligations pursuant to
the Credit Agreement as “Lenders Debt.”




ARTICLE XI




GUARANTY OF NOTES




SECTION 11.01. Guaranty.




          (a) Subject to the provisions of this Article XI, each of the Guarantors hereby, jointly and
severally, unconditionally Guarantees to each Holder of a Note authenticated and delivered by the
Trustee and to the Trustee and its successors and assigns that: (i) the principal of, premium, if
any, and interest on with respect to the Notes will be duly and punctually paid in full when due,
whether at maturity, by acceleration or otherwise, and interest on the overdue principal and (to
the extent permitted by law) interest, on the Notes and all other obligations of the Issuer or the
Guarantors to the Holders or the Trustee hereunder or thereunder (including fees and expenses) will
be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and
(ii) in case of any extension of time of payment or renewal of any Notes or any such obligations
with respect to the Notes, the same will be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at the extended Stated Maturity, by
acceleration or otherwise. This Note Guarantee is a present and continuing guaranty of payment and
performance, and not of collectibility. Accordingly, failing payment when due of any amount so
Guaranteed, or failing performance of any other obligation of the




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Issuer to the Holders under this Indenture or the Notes, for whatever reason, each Guarantor
shall be obligated to pay, or to perform or cause the performance of, the same immediately.




          (b) Each Guarantor hereby agrees that its obligations under its Note Guarantee shall be
absolute and unconditional, irrespective of any invalidity, irregularity or unenforceability of the
Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by
any Holder of the Notes with respect to any provisions hereof or thereof, any release of any other
Guarantor or any other obligor under the Notes, the recovery of any judgment against the Issuer,
any action to enforce the same, whether or not a Note Guarantee is affixed to any particular Note,
or, to the fullest extent permitted by law, any other circumstance which might otherwise constitute
a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives, to the
fullest extent permitted by law, the benefit of diligence, presentment, demand of payment, filing
of claims with a court in the event of insolvency or bankruptcy of the Issuer or any other obligor
under the Notes, any right to require a proceeding first against the Issuer or any such obligor,
protest, notice and all demands whatsoever and covenants that its Note Guarantee will not be
discharged except by complete performance the obligations contained in the Notes, this Indenture
and its Note Guarantee. If any Holder or the Trustee is required by any court or otherwise to
return to the Issuer or to any other Guarantor, or any custodian, trustee, liquidator or other
similar official acting in relation to the Issuer or such Guarantor, any amount paid by the Issuer
or such Guarantor to the Trustee or such Holder, each Note Guarantee, to the extent theretofore
discharged, shall be reinstated in full force and effect. Each Guarantor further agrees that, as
between it, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (i)
subject to this Article XI, the maturity of the obligations Guaranteed hereby may be accelerated as
provided in Article VI hereof for the purposes of each Note Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the obligations
Guaranteed by this Note Guarantee, and (ii) in the event of any acceleration of such obligations as
provided in Article VI hereof, such obligations (whether or not due and payable) shall forthwith
become due and payable by each Guarantor for the purpose of its Note Guarantee. Upon the
effectiveness of any acceleration of the obligations Guaranteed by this Note Guarantee, the Trustee
shall promptly make a demand for payment of such obligations by each Guarantor under this Note
Guarantee. The obligations of the Guarantors under this Note Guarantee shall be joint and several.




          (c) Each Note Guarantee shall remain in full force and effect and continue to be effective
should any petition be filed by or against the Issuer for liquidation or reorganization, should the
Issuer become insolvent or make an assignment for the benefit of creditors or should a receiver or
trustee be appointed for all or any significant part of the Issuer’s assets, and shall, to the
fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if
at any time payment and performance of the Notes are, pursuant to applicable law, rescinded, or
reduced in amount, or must otherwise be restored or returned by any obligee on the Notes, whether
as a “voidable preference,” “fraudulent transfer” or otherwise, all as though such payment or
performance had not been made. In the event that any payment, or any part thereof, is rescinded,
reduced, restored or returned, the Notes shall, to the fullest extent permitted by law,




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be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced,
restored or returned.




          (d) The Guarantors shall have the right to seek contribution from any non-paying Guarantor so
long as the exercise of such right does not impair the rights of the Holders under any Note
Guarantee.




SECTION 11.02. Execution Delivery of Note Guarantee.




          To evidence its Note Guarantee set forth in Section 11.01, each Guarantor hereby agrees that a
notation of such Note Guarantee substantially in the form included in Exhibit E shall be
endorsed by an Officer of such Guarantor on each Note authenticated and delivered by the Trustee
and that this Indenture shall be executed on behalf of such Guarantor by an Officer of such
Guarantor.




          Each Guarantor hereby agrees that its Note Guarantee shall remain in full force and effect
notwithstanding any failure to endorse on each Note a notation of such Note Guarantee.




          If an Officer whose signature is on this Indenture or on the Note Guarantee no longer holds
that office at the time the Trustee authenticates the Note on which a Note Guarantee is endorsed,
the Note Guarantee shall be valid nevertheless.




          The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall
constitute due delivery of the Note Guarantee set forth in this Indenture on behalf of the
Guarantors.




          In the event that the Issuer creates or acquires any new Subsidiaries subsequent to the date
of this Indenture, if required by Section 4.20, the Issuer shall cause such Subsidiaries to execute
supplemental indentures to this Indenture and Note Guarantees and supplements to the Security
Agreement and Intercreditor Agreement and other applicable Security Documents in accordance with
Section 4.20 and this Article XI, to the extent applicable.




SECTION 11.03. Additional Guarantors.




          Any Person may become a guarantor of the Notes by executing and delivering to the Trustee (i)
a supplemental indenture in form and substance satisfactory to the Trustee, which subjects such
Person to the provisions of this Indenture as a guarantor of the Notes, (ii) a supplement to the
Security Agreement, (iii) a supplement to the Intercreditor Agreement, (iv) other applicable
Security Documents and (v) an Opinion of Counsel to the effect that such documents have been duly
authorized and executed by such Person and constitutes the legal, valid, binding and enforceable
obligation of such person (subject to such customary exceptions concerning fraudulent conveyance
laws, creditors’ rights and equitable principles as may be acceptable to the Trustee in its
discretion).




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SECTION 11.04. Release of Guarantor.




          Any Guarantor will be released and relieved of any obligations under its Note Guarantee:




          (a) in connection with any sale or other disposition of all or substantially all of the assets
of that Guarantor (including by way of merger or consolidation) to a Person that is not (either
before or after giving effect to such transaction) a Restricted Subsidiary of the Issuer, if the
sale or other disposition of all or substantially all of the assets of that Guarantor complies with
Section 4.13, including the application of the Net Proceeds therefrom; provided, however, that such
Guarantor is released from its guarantees, if any, of, and all pledges and security, if any,
granted in connection with, the Credit Agreement and any other Indebtedness of the Issuer or any
Restricted Subsidiary of the Issuer;




          (b) in connection with any sale of all of the Capital Stock of a Guarantor to a Person that is
not (either before or after giving effect to such transaction) a Restricted Subsidiary of the
Issuer, if the sale of all such Capital Stock of that Guarantor complies with Section 4.13,
including the application of the Net Proceeds therefrom; provided, however, that such Guarantor is
released from its guarantees, if any, of, and all pledges and security, if any, granted in
connection with, the Credit Agreement and any other Indebtedness of the Issuer or any Restricted
Subsidiary of the Issuer;




          (c) if the Issuer properly designates any Restricted Subsidiary that is a Guarantor as an
Unrestricted Subsidiary;




          (d) in connection with any sale of Capital Stock of a Guarantor to a Person that results in
the Guarantor no longer being a Subsidiary of the Issuer, if the sale of such Capital Stock of that
Guarantor complies with Section 4.13, including the application of the Net Proceeds therefrom;




          (e) if the Issuer exercises its Legal Defeasance option or its Covenant Defeasance option as
described in Section 8.02 or if its obligations under this Indenture are discharged in accordance
with the terms of this Indenture; or




          (f) if the Guarantee by such Guarantor, if any, of, and all pledges and security interests, if
any, granted by such Guarantor in connection with all Indebtedness of the Issuer or any Restricted
Subsidiary the Guarantee of which by such Guarantor (or the pledge of assets by such Guarantor in
connection therewith) would have required such Guarantor to Guarantee the Notes pursuant to Section
4.16 (including, without limitation, the Credit Agreement), have been released.




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SECTION 11.05. Guarantors May Consolidate, etc., on Certain Terms.




          (a) Except as otherwise provided in Section 11.04, a Guarantor shall not, directly or
indirectly, consolidate or merge with or into another Person (whether or not the Guarantor is the
surviving corporation), and the Guarantor will not sell, assign, transfer, convey or otherwise
dispose of all or substantially all of the properties or assets of the Guarantor in one or more
related transactions, to another Person (including by way of consolidation or merger), unless:





     (1) immediately after giving effect to such transaction, no Default or Event of Default
exists; and




     (2) either: (i) the Person acquiring the property in such sale or disposition or the
Person formed by or surviving any such consolidation or merger is a corporation, partnership
or limited liability company, organized under (A) the laws of the United States, any state
thereof or the District of Columbia or (B) the laws of the same jurisdiction as that
Guarantor and, in each case, assumes all the obligations of that Guarantor under this
Indenture, its Note Guarantee and the Registration Rights Agreement pursuant to a
supplemental indenture in the form set forth in Exhibit H and satisfactory to the
Trustee, or (ii) such sale or other disposition complies with Section 4.13, including the
application of the Net Proceeds therefrom.



          (b) No Guarantor may, directly or indirectly, lease all or substantially all of its properties
or assets, in one or more related transactions, to any other Person.




          (c) In case of any such consolidation, merger, sale or conveyance and upon the assumption by
the successor Person, by supplemental indenture, executed and delivered to the Trustee and
satisfactory in form to the Trustee, of the Note Guarantee endorsed upon the Notes and the due and
punctual performance of all of the covenants and conditions of this Indenture to be performed by a
Guarantor along with execution and delivery of the Security Agreement, Intercreditor Agreement and
other applicable Security Documents, such successor Person shall succeed to and be substituted for
a Guarantor with the same effect as if it had been named herein as a Guarantor. Such successor
Person thereupon may cause to be signed any or all of the Note Guarantees to be endorsed upon all
of the Notes issuable hereunder which theretofore shall not have been signed by the Issuer and
delivered to the Trustee. All the Note Guarantees so issued shall in all respects have the same
legal rank and benefit under this Indenture as the Note Guarantees theretofore and thereafter
issued in accordance with the terms of this Indenture as though all of such Note Guarantees had
been issued at the date of the execution hereof.




          (d) In connection with any such consolidation, merger, sale, assignment, transfer, conveyance
or other disposition, such Guarantor shall deliver, or cause to be delivered, to the Trustee, in
form and substance satisfactory to the Trustee, an Officers’ Certificate and an




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Opinion of Counsel, each stating that such consolidation, merger, sale, assignment, transfer,
conveyance or other disposition and the supplemental indenture in respect thereto comply with this
Indenture and that all conditions precedent therein provided for relating to such transactions have
been complied with.




          (e) Except as set forth in Articles IV and V hereof, nothing contained in this Indenture or in
any of the Notes shall prevent any consolidation or merger of a Guarantor with or into the Issuer
or another Guarantor, or shall prevent any sale or conveyance of the property of a Guarantor as an
entirety or substantially as an entirety to the Issuer or another Guarantor.




ARTICLE XII




MISCELLANEOUS




SECTION 12.01. TIA Controls.




          If any provision of this Indenture limits, qualifies, or conflicts with another provision
which is required or deemed to be included in this Indenture by the TIA, such required or deemed
provision shall control.




SECTION 12.02. Notices.




          Any notices or other communications required or permitted hereunder shall be in writing, and
shall be sufficiently given if made by hand delivery, by telex, by nationally recognized overnight
courier service, by telecopier or registered or certified mail, postage prepaid, return receipt
requested, addressed as follows:



if to the Issuer:



c/o Nortek, Inc.

50 Kennedy Plaza

Providence, RI 02903-2603

Attention: Almon C. Hall



Telephone: (401) 751-1600

Facsimile: (401) 751-9844




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with a copy to:



Ropes & Gray LLP

One International Place

Boston, MA 02110

Attention: John B. Ayer, Esq.



Telephone: (617) 951-7000

Facsimile: (617) 951-7050



if to the Trustee or Collateral Agent:



U.S. Bank National Association

One Federal Street, 3rd Floor

Boston, MA 02110

Attention: Corporate Trust Services



Telephone: (617) 603-6573

Facsimile: (617) 603-6668




          Each of the Issuer, the Trustee and the Collateral Agent by written notice to each other such
Person may designate additional or different addresses for notices to such Person. Any notice or
communication to the Issuer, the Trustee and the Collateral Agent, shall be deemed to have been
given or made as of the date so delivered if personally delivered; when answered back; when receipt
is acknowledged, if telecopied; five (5) 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); and next Business Day if by nationally
recognized overnight courier service.




          Any notice or communication mailed to a Noteholder shall be mailed to him by first class mail
or other equivalent means at his address as it appears on the registration books of the Registrar
and shall be sufficiently given to him if so mailed within the time prescribed.




          Failure to mail a notice or communication to a Noteholder or any defect in it shall not affect
its sufficiency with respect to other Noteholders. If a notice or communication is mailed in the
manner provided above, it is duly given, whether or not the addressee receives it.




SECTION 12.03. Communications by Holders with Other Holders.




          Noteholders may communicate pursuant to TIA § 312(b) with other Noteholders with respect to
their rights under this Indenture or the Notes. The Issuer, the Trustee, the Registrar and any
other Person shall have the protection of TIA § 312(c).




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SECTION 12.04. Certificate and Opinion as to Conditions Precedent.




          Upon any request or application by the Issuer to the Trustee or Collateral Agent to take any
action under this Indenture, the Issuer shall furnish to the Trustee or Collateral Agent at the
request of the Trustee or Collateral Agent:





     (1) an Officers’ Certificate, in form and substance reasonably satisfactory to the
Trustee and Collateral Agent, stating that, in the opinion of the signers, all conditions
precedent to be performed or effected by the Issuer, if any, provided for in this Indenture
relating to the proposed action have been complied with; and




     (2) an Opinion of Counsel stating that, in the opinion of such counsel, any and all
such conditions precedent have been complied with.



SECTION 12.05. Statements Required in Certificate or Opinion.




          Each certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture, other than the Officers’ Certificate required by Section 4.06, shall
include:





     (1) a statement that the Person 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 Person, he has made such examination or
investigation as is necessary to enable him to express an informed opinion as to whether or
not such covenant or condition has been complied with or satisfied; and




     (4) a statement as to whether or not, in the opinion of each such Person, such
condition or covenant has been complied with; provided, however, that with respect to
matters of fact an Opinion of Counsel may rely on an Officers’ Certificate or certificates
of public officials.



SECTION 12.06. Rules by Trustee, Paying Agent and Registrar.




          The Trustee, Paying Agent or Registrar may make reasonable rules for its functions.




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SECTION 12.07. Legal Holidays.




          If a payment date is not a Business Day, payment may be made on the next succeeding day that
is a Business Day.




SECTION 12.08. Governing Law.




          This Indenture, the Notes and the Note Guarantees shall be governed by, and construed in
accordance with, the laws of the State of New York without regard to conflicts of law principles
that would require the application of the laws of another jurisdiction.




SECTION 12.09. No Adverse Interpretation of Other Agreements.




          This Indenture may not be used to interpret another indenture, loan or debt agreement of the
Issuer or any of its Subsidiaries. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.




SECTION 12.10. No Personal Liability of Directors, Officers, Employees and Stockholders.




          No director, officer, employee, incorporator, member, partner, or stockholder of the Issuer,
any Guarantor, any Subsidiary or any Parent shall have any liability for any obligations of the
Issuer or the Guarantors under the Notes, this Indenture, the Note Guarantees or for any claim
based on, in respect of, or by reason of, such obligations or their creation. Each Holder of Notes
by accepting a Note waives and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes.




SECTION 12.11. Successors.




          All agreements of the Issuer in this Indenture and the Notes shall bind its successors. All
agreements of the Trustee in this Indenture shall bind its successor.




SECTION 12.12. Duplicate Originals.




          All parties may sign any number of copies of this Indenture. Each signed copy or counterpart
shall be an original, but all of them together shall represent the same agreement.




SECTION 12.13. Severability.




          In case any one or more of the provisions in this Indenture or in the Notes shall be held
invalid, illegal or unenforceable, in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining provisions shall
not in any way be affected or impaired thereby, it being intended that all of the provisions hereof
shall be enforceable to the full extent permitted by law.




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SECTION 12.14. Intercreditor Agreement Governs.




          Reference is made to the Intercreditor Agreement . Each Noteholder, by its acceptance of a
Note, (a) consents to the subordination of Liens provided for in the Intercreditor Agreement, (b)
agrees that it will be bound by and will take no actions contrary to the provisions of the
Intercreditor Agreement and (c) authorizes and instructs the Trustee and Collateral Agent to enter
into the Intercreditor Agreement as Trustee and Collateral Agent, respectively, and on behalf of
such Noteholder. The foregoing provisions are intended as an inducement to the lenders under the
Credit Agreement to extend credit and such lenders are intended third party beneficiaries of such
provisions and the provisions of the Intercreditor Agreement.





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SIGNATURES




          IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed all as
of the date first written above.




	 	 	 	 	 
	 	NORTEK, INC.

 	 
	 	By:  	/s/ Kevin W. Donnelly
 	 
	 	 	Name:  	Kevin W. Donnelly 	 
	 	 	Title:  	Vice President, General Counsel and Secretary 	 
	 



[Signature Page to Indenture]





 









 





	 	 	 	 	 
	 	ADVANCED BRIDGING TECHNOLOGIES, INC.

AIGIS MECHTRONICS, INC.

ALLSTAR PRO, LLC

AUBREY MANUFACTURING, INC.

BROAN-NUTONE LLC

CES GROUP, INC.

CLEANPAK INTERNATIONAL, INC.

ELAN HOME SYSTEMS, L.L.C.

GEFEN, INC.

GOVERNAIR CORPORATION GTO, INC.

HC INSTALLATIONS, INC.

HOMELOGIC LLC

HUNTAIR, INC.

INTERNATIONAL ELECTRONICS, INC.

J.A.R. INDUSTRIES, INC.

JENSEN INDUSTRIES, INC.

LINEAR H.K. LLC

LINEAR LLC

LITETOUCH, INC.

MAGENTA RESEARCH, LTD.

MAMMOTH, INC.

MAMMOTH CHINA LTD.

NILES AUDIO CORPORATION

NORDYNE CHINA, LLC

NORDYNE, INC.

NORDYNE INTERNATIONAL, INC.

NORTEK INTERNATIONAL, INC.

NUTONE INC.

OMNIMOUNT SYSTEMS, INC.

OPERATOR SPECIALTY COMPANY, INC.

PACIFIC ZEPHYR RANGE HOOD, INC.

PANAMAX INC.

RANGAIRE GP, INC.

RANGAIRE LP, INC.

RANGAIRE LP

SECURE WIRELESS, INC.

SPEAKERCRAFT, INC.

TEMTROL, INC.

WDS LLC

WEBCO, INC.

XANTECH CORPORATION

ZEPHYR CORPORATION

 	 
	 	By:  	/s/ Kevin W. Donnelly
 	 
	 	 	Name:  	Kevin W. Donnelly 	 
	 	 	Title:  	Vice President and Secretary
(of entity listed or as an officer of the
managing member, sole member or general partner) 	 
	 



[Signature Page to Indenture]




	 	 	 	 	 



 









 






	 	 	 	 	 
	 	U.S. BANK NATIONAL ASSOCIATION,

as Trustee and Collateral Agent

 	 
	 	By:  	/s/ Todd R. DiNezza
 	 
	 	 	Name:  	Todd R. DiNezza 	 
	 	 	Title:  	Assistant Vice President 	 
	 



[Signature Page to Indenture]





 











 





EXHIBIT A




NORTEK, INC.

10% Senior Secured Notes due 2013




CUSIP No.




	 	 	 	 
	No.

	 	        
	Principal Amount: $






          NORTEK, INC., a Delaware corporation (the “Issuer,” which term includes any successor
corporation), for value received, promises to pay to CEDE & CO. or its registered assigns, the
principal sum of               ($   )
on December 1, 2013.




          Interest Payment Dates: June 1 and December 1, commencing December 1, 2008.




          Record Dates: May 15 and November 15.




          Reference is made to the further provisions of this Note contained herein, which will for all
purposes have the same effect as if set forth at this place.




A-1









 








          IN WITNESS WHEREOF, the Issuer has caused this Note to be signed manually or by facsimile by
its duly authorized officers.




	 	 	 	 	 
	 	NORTEK, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



A-2









 






	 	 	 	 	 



CERTIFICATE OF AUTHENTICATION




          This is one of the 10% Senior Secured Notes due 2013 described in the within-mentioned
Indenture.




Dated:




	 	 	 	 	 
	 	U.S. BANK NATIONAL ASSOCIATION,

as Trustee

 	 
	 	By:  	 	 
	 	 	Authorized Signatory 	 
	 	 	 	 



A-3









 






	 	 	 	 	 



(Reverse of Note)

Nortek, Inc.




10% Senior Secured Notes due 2013



[Insert the Global Note Legend, if applicable pursuant to the provisions of the Indenture]



[Insert the Private Placement Legend, if applicable pursuant to the provisions of the Indenture]




          Capitalized terms used herein shall have the meanings assigned to them in the Indenture
referred to below unless otherwise indicated.




          SECTION 1. Interest. Nortek, Inc., a Delaware corporation (the “Issuer”), promises to
pay interest on the principal amount of this Note at 10% per annum. The Issuer will pay cash
interest semi-annually in arrears on June 1 and December 1, commencing on December 1, 2008. The
Issuer will make each interest payment to the Holders of record on the immediately preceding May 15
and November 15. Interest will be computed on the basis of a 360-day year comprised of twelve
30-day months.




          SECTION 2. Method of Payment. The Issuer will pay interest on the Notes (except
defaulted interest) to the Persons who are registered Holders of Notes at the close of business on
the May 15 or November 15 next preceding the Interest Payment Date, even if such Notes are canceled
after such record date and on or before such Interest Payment Date, except as provided in Section
2.13 of the Indenture with respect to defaulted interest. The Notes will be issued in
denominations of $1,000 principal amount and integral multiples of $1,000. The Issuer shall pay
principal, premium, if any and interest on the Notes in such coin or currency of the United States
of America as at the time of payment is legal tender for payment of public and private debts (“U.S.
Legal Tender”). Principal, premium, if any, and interest on the Notes will be payable at the
office or agency of the Issuer maintained for such purpose or, at the option of the Issuer, payment
of interest may be made by check mailed to the Holders at their respective addresses set forth in
the register of Holders; provided that all payments of principal, premium and interest with respect
to Notes the Holders of which have given wire transfer instructions to the Issuer prior to the
Record Date will be required to be made by wire transfer of immediately available funds to the
accounts specified by the Holders thereof. Until otherwise designated by the Issuer, the Issuer’s
office or agency in New York will be the office of the Trustee maintained for such purpose.




          SECTION 3. Paying Agent and Registrar. Initially, U.S. Bank National Association, the
Trustee under the Indenture, will act as Paying Agent and Registrar. The Issuer may change any
Paying Agent or Registrar without notice to any Holder. The Issuer or any of its Subsidiaries may
act in any such capacity.






A-4









 








          SECTION 4. Indenture. The Issuer issued the Notes under an Indenture dated as of
May 20, 2008 (the “Indenture”) among the Issuer, the Guarantors, the Trustee and the Collateral
Agent. 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, as amended (15 U.S. Code §§ 77aaa
77bbbb) (the “TIA”). The Notes are subject to all such terms, and Holders are referred to the
Indenture and the TIA for a statement of such terms. To the extent any provision of this Note
conflicts with the express provisions of the Indenture, the provisions of the Indenture shall
govern and be controlling.




          SECTION 5. Optional Redemption.




          (a) Not more than once in any twelve-month period, the Issuer shall be entitled to redeem
Notes at a Redemption Price of 103% of the principal amount thereof, plus accrued and unpaid
interest, to the Redemption Date; provided that the aggregate principal amount of Notes redeemed in
aggregate pursuant to this Section 5(a) shall not exceed $75.0 million.




          (b) At any time prior to June 1, 2011, the Issuer shall be entitled on any one or more
occasions to redeem up to 35% of the aggregate principal amount of Notes issued under the Indenture
(which includes any Additional Notes) at a Redemption Price of 110.000% of the principal amount
thereof, plus accrued and unpaid interest thereon, to the Redemption Date, with the net cash
proceeds of one or more Designated Offerings of the Issuer (or of any Parent to the extent such
proceeds are contributed to the equity capital of the Issuer, other than in the form of
Disqualified Stock); provided that (1) at least 65% of the aggregate principal amount of Notes
issued under the Indenture (which includes any Additional Notes) remains outstanding immediately
after the occurrence of such redemption (excluding Notes held by the Issuer and its Subsidiaries)
and (2) such redemption occurs within 90 days of the date of the closing of such Designated
Offering.




          (c) On or after June 1, 2011, the Issuer shall be entitled to redeem all or part of the
Notes, at the Redemption Prices (expressed as percentages of principal amount) set forth below plus
accrued and unpaid interest and Additional Interest, if any, thereon, to the applicable Redemption
Date, if redeemed during the twelve-month period beginning on June 1 of the years indicated below:




	 	 	 	 	 
	Year	 	Percentage 
	2011
	 	 	105.000	%
	2012
	 	 	102.500	%
	2013
	 	 	100.000	%






          SECTION 6. Offers to Purchase. The Indenture provides that upon the occurrence of a
Change of Control or an Asset Sale and subject to further limitations contained therein, the Issuer
shall make an offer to purchase outstanding Notes in accordance with the procedures set forth in
the Indenture.






A-5









 








          SECTION 7. Notice of Redemption. Notice of redemption will be mailed by first class
mail at least 30 days but not more than 60 days before the Redemption Date to each Holder of the
Notes to be redeemed at its registered address. No Notes of $1,000 or less shall be redeemed in
part. If any Note is to be redeemed in part only, the notice of redemption that relates to such
Note shall state the portion of the principal amount thereof to be redeemed. A new Note in
principal amount equal to the unredeemed portion of the original Note will be issued in the name of
the Holder thereof upon cancellation of the original Note. On and after the Redemption Date,
interest ceases to accrue on Notes or portions of them called for redemption.




          SECTION 8. Denominations, Transfer, Exchange. The Notes are in registered form
without coupons in denominations of $1,000 principal amount and integral multiples of $1,000
principal amount. The transfer of the Notes may be registered and the Notes may be exchanged as
provided in the Indenture. The Registrar and the Trustee may require a Holder, among other things,
to furnish appropriate endorsements and transfer documents and the Issuer may require a Holder to
pay any taxes and fees required by law or permitted by the Indenture. The Issuer or the Registrar
is not required to transfer or exchange any Note selected for redemption. Also, the Issuer or the
Registrar is not required to transfer or exchange any Notes for a period of 15 days before a
selection of the Notes to be redeemed.




          SECTION 9. Persons Deemed Owners. The registered Holder of a Note may be treated as
its owner for all purposes.




          SECTION 10. Amendment, Supplement and Waiver. Subject to certain exceptions, the
Indenture, the Security Agreement, other Security Documents and Intercreditor Agreement may be
amended or supplemented with the written consent of the Holders of at least a majority in aggregate
principal amount of the Notes then outstanding, and any existing Default or compliance with any
provision may be waived with the consent of the Holders of a majority in aggregate principal amount
of the Notes then outstanding. Without notice to or consent of any Holder, the parties thereto may
amend or supplement the Indenture, the Security Agreement, other Security Documents and
Intercreditor Agreement to, among other things, cure any ambiguity, defect or inconsistency in the
Indenture, provide for uncertificated Notes in addition to certificated Notes, comply with any
requirements of the Commission in connection with the qualification of the Indenture under the TIA,
or make any change that does not adversely affect the rights of any Holder of a Note.




          SECTION 11. Defaults and Remedies. If a Default occurs and is continuing, the Trustee
or the Holders of at least 25% in aggregate principal amount of the then outstanding Notes
generally may declare the principal of and accrued interest, if any, on such Notes to be due and
payable immediately. Notwithstanding the foregoing, in the case of a Default arising from certain
events of bankruptcy or insolvency as set forth in the Indenture all outstanding Notes will become
due and payable without further action or notice. Holders of the Notes may not enforce the
Indenture or the Notes except as provided in the Indenture. Subject to certain limitations,
Holders of a majority in aggregate principal amount of the then outstanding Notes may direct the





A-6









 







Trustee in its exercise of any trust or power. The Trustee may withhold from Holders notice
of any continuing Default (except a Default relating to the payment of principal or interest) if it
determines that withholding notice is in their interest. The Holders of a majority in aggregate
principal amount of the Notes then outstanding by notice to the Trustee may on behalf of the
Holders of all of the Notes waive any Default and its consequences under the Indenture except a
continuing Default in the payment of interest on, or the principal of the Notes or in respect of
certain covenants set forth in the Indenture.




          SECTION 12. Restrictive Covenants. The Indenture contains certain covenants that,
among other things, limit the ability of the Issuer and its Restricted Subsidiaries to make
restricted payments, to incur indebtedness, to create liens, to sell assets, to permit restrictions
on dividends and other payments by Restricted Subsidiaries of the Issuer, to consolidate, merge or
sell all or substantially all of its assets or to engage in transactions with affiliates. The
limitations are subject to a number of important qualifications and exceptions. The Issuer must
annually report to the Trustee on compliance with such limitations.




          SECTION 13. No Recourse Against Others. No director, officer, employee, incorporator,
member, partner or stockholder of the Issuer, any Guarantor, any Subsidiary, or any Parent shall
have any liability for any obligations of the Issuer or the Guarantors under the Notes, the
Indenture, the Note Guarantees, the Security Documents or the Intercreditor Agreement or for any
claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of
the Notes by accepting a Note waives and releases all such liability. The waiver and release are
part of the consideration for issuance of the Notes.




          SECTION 14. Trustee Dealings with the Issuer. The Trustee under the Indenture, in its
individual or any other capacity, may become the owner or pledgee of the Notes and may otherwise
deal with the Issuer, its Subsidiaries or their respective Affiliates as if it were not the
Trustee.




          SECTION 15. Authentication. This Note shall not be valid until authenticated by the
manual signature of the Trustee or an authenticating agent.




          SECTION 16. Abbreviations. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the
entirety), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST
(= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).




          SECTION 17. Additional Rights of Holders of Restricted Global Notes and Restricted
Definitive Notes. Pursuant to, but subject to the exceptions in, the Registration Rights
Agreement, the Issuer will be obligated to consummate an exchange offer pursuant to which the
Holder of this Note shall have the right to exchange this Note for an 10% Senior Secured Note due
2013 of the Issuer which shall have been registered under the Securities Act, in like principal
amount and having terms identical in all material respects to this Note (except that such note




A-7









 







shall not be entitled to Additional Interest). The Holders shall be entitled to receive
certain Additional Interest in the event such exchange offer is not consummated or the Notes are
not offered for resale and upon certain other conditions, all pursuant to and in accordance with
the terms of the Registration Rights Agreement.a




          SECTION 18. CUSIP Numbers. Pursuant to a recommendation promulgated by the Committee
on Uniform Security Identification Procedures, the Issuer has caused CUSIP numbers to be printed on
the Notes and the Trustee may use CUSIP numbers in notices of redemption as a convenience 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 and reliance may be placed only on the other
identification numbers placed thereon.




          SECTION 19. Guarantees. The Note will be entitled to the benefits of certain
Guarantees made for the benefit of the Holders. Reference is hereby made to the Indenture for a
statement of the respective rights, limitations of rights, duties and obligations thereunder of the
Guarantors, the Trustee and the Holders.




          SECTION 20. Security. The Note will be secured by the Collateral on the terms and
subject to the conditions set forth in the Indenture and the Security Documents. The Trustee and
the Collateral Agent, as the case may be, hold the Collateral in trust for the benefit of the
Secured Parties, in each case pursuant to the Security Documents and the Intercreditor Agreement.
Each Holder, by accepting this Note, consents and agrees to the terms of the Security Documents
(including the provisions providing for the foreclosure and release of Collateral) and the
Intercreditor Agreement as the same may be in effect or may be amended from time to time in
accordance with their terms and the Indenture and authorizes and directs the Collateral Agent to
enter into the Security Documents and the Intercreditor Agreement, and to perform its obligations
and exercise its rights thereunder in accordance therewith.




          SECTION 21. Governing Law. This Note shall be governed by, and construed in
accordance with, the laws of the State of New York without regard to conflicts of law principles
that would require the application of the laws of another jurisdiction.




          The Issuer will furnish to any Holder upon written request and without charge a copy of the
Indenture.






 




			
	a	 	This Section not to appear on Exchange Notes.




A-8









 










ASSIGNMENT FORM




          I or we assign and transfer this Note to:




 




(Insert assignee’s social security or tax I.D. number)




 




(Print or type name, address and zip code of assignee)




          and irrevocably appoint:




          Agent to transfer this Note on the books of the Issuer. The Agent may substitute another to
act for him.




	 	 	 	 	 	 	 	 	 	 	 
	Date:

	 	 	 	 	 	Your Signature:	 	 	 	 
	 

	 	 

	 	 	 	 	 	 

(Sign exactly as your name appears on the
other side of this Note)
	 	 






	 	 	 	 	 
	Signature Guarantee:
	 	 	 	 
	 

	 	 

	 	 






SIGNATURE GUARANTEE




          Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements
of the Registrar, which requirements include membership or participation in the Security Transfer
Agent Medallion Program (“STAMP”) or such other “signature guaranty program” as may be determined
by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.




A-9









 








OPTION OF HOLDER TO ELECT PURCHASE




          If you want to elect to have this Note purchased by the Issuer pursuant to Section 4.09 or
Section 4.13 of the Indenture, check the appropriate box:




          Section 4.09 [     ]               Section 4.13 [     ]




          If you want to elect to have only part of this Note purchased by the Issuer pursuant to
Section 4.09 or Section 4.13 of the Indenture, state the amount: $                    




	 	 	 	 	 	 	 	 	 	 	 
	Dated:

	 	 	 	 	 	Signed:	 	 	 	 
	 

	 	 

	 	 	 	 	 	 

(Sign exactly as name appears on the other
side of this Note)
	 	 






	 	 	 	 	 
	Signature Guarantee:
	 	 	 	 
	 

	 	 

Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor
program reasonably acceptable to the Trustee)
	 	 






A-10









 





EXHIBIT B




[FORM OF LEGEND FOR 144A NOTES

AND OTHER NOTES THAT ARE RESTRICTED NOTES]





          THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM
REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE “SECURITIES ACT”), AND THIS
NOTE MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION
OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS NOTE IS HERBY NOTIFIED THAT THE
SELLER OF THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.




          THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS NOTE MAY BE
OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) IN THE UNITED STATES TO A PERSON
WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (II)
OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (III) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT
PROVIDED BY RULE 144A THEREUNDER (IF AVAILABLE) OR (IV) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH CASES (I) THROUGH (IV) IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE IN THE UNITED STATES, AND (B)
THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS
NOTE FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.



B-1









 





[FORM OF ASSIGNMENT FOR 144A NOTES AND OTHER NOTES THAT ARE

RESTRICTED NOTES]




          I or we assign and transfer this Note to:




 




(Insert assignee’s social security or tax I.D. number)




 




(Print or type name, address and zip code of assignee)




          and irrevocably appoint:




          Agent to transfer this Note on the books of the Issuer. The Agent may substitute another to
act for him.




[Check One]




          [  ] (a) this Note is being transferred in compliance with the exemption from registration
under the Securities Act provided by Rule 144A thereunder.




          or




          [  ] (b) this Note is being transferred other than in accordance with (a) above and
documents are being furnished which comply with the conditions of transfer set forth in this Note
and the Indenture.




          If none of the foregoing boxes is checked, the Trustee or Registrar shall not be obligated to
register this Note in the name of any person other than the Holder hereof unless and until the
conditions to any such transfer of registration set forth herein and in Sections 2.16 and 2.17 of
the Indenture shall have been satisfied.




	 	 	 	 	 	 	 	 	 	 	 
	Date:

	 	 	 	 	 	Your Signature:	 	 	 	 
	 

	 	 

	 	 	 	 	 	 

(Sign exactly as your name appears on the face
of this Note)
	 	 






	 	 	 	 	 
	Signature Guarantee:
	 	 	 	 
	 

	 	 

	 	 






SIGNATURE GUARANTEE




          Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements
of the Registrar, which requirements include membership or participation in the






B-2









 







Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guaranty program”
as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.





B-3









 








TO BE COMPLETED BY TRANSFEROR IF (a) ABOVE IS CHECKED




          The Transfer is being effected pursuant to and in accordance with Rule 144A under the
Securities Act, and, accordingly, the Transferor hereby further certifies that the beneficial
interest or certificated Note is being Transferred to a Person that the Transferor reasonably
believed and believes is purchasing the beneficial interest or certificated Note for its own
account, or for one or more accounts with respect to which such Person exercises sole investment
discretion, and such Person and each such account is a “qualified institutional buyer” within the
meaning of Rule 144A in a transaction meeting the requirements of Rule 144A and such Transfer is in
compliance with any applicable securities laws of any state of the United States. Upon
consummation of the proposed Transfer in accordance with the terms of the Indenture, the
Transferred beneficial interest or certificated Note will be subject to the restrictions on
transfer enumerated on the Rule 144A Notes and/or the certificated Note and in the Indenture and
the Securities Act.




	 	 	 	 	 	 	 	 	 
	Dated:
	 	 	 	 	 	 	 	 
	 

	 	 

	 	 	 	 

NOTICE:     To be executed by an executive
officer
	 	 








B-4









 








EXHIBIT C




[FORM OF LEGEND FOR REGULATION S NOTE]




          THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION ORIGINALLY EXEMPT FROM
REGISTRATION UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT
BE TRANSFERRED IN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY U.S. PERSON EXCEPT
PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND ALL
APPLICABLE STATE SECURITIES LAWS. TERMS USED ABOVE HAVE THE MEANINGS GIVEN TO THEM IN REGULATION S
UNDER THE SECURITIES ACT.




C-1









 








[FORM OF ASSIGNMENT FOR REGULATION S NOTE]




          I or we assign and transfer this Note to:




 




(Insert assignee’s social security or tax I.D. number)




 




(Print or type name, address and zip code of assignee)




          and irrevocably appoint:




          Agent to transfer this Note on the books of the Issuer. The Agent may substitute another to
act for him.




[Check One]




          [  ] (a) this Note is being transferred in compliance with the exemption from registration
under the Securities Act provided by Regulation S thereunder.




          or




          [  ] (b) this Note is being transferred other than in accordance with (a) above and
documents are being furnished which comply with the conditions of transfer set forth in this Note
and the Indenture.




          If none of the foregoing boxes is checked, the Trustee or Registrar shall not be obligated to
register this Note in the name of any person other than the Holder hereof unless and until the
conditions to any such transfer of registration set forth herein and in Sections 2.16 and 2.17 of
the Indenture shall have been satisfied.




	 	 	 	 	 	 	 	 	 	 	 
	Date:

	 	 	 	 	 	Your Signature:	 	 	 	 
	 

	 	 

	 	 	 	 	 	 

(Sign exactly as your name appears on the face
of this Note)
	 	 






	 	 	 	 	 
	Signature Guarantee:
	 	 	 	 
	 

	 	 

	 	 






SIGNATURE GUARANTEE




          Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements
of the Registrar, which requirements include membership or participation in the Security Transfer
Agent Medallion Program (“STAMP”) or such other “signature guaranty program” as may be determined
by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.





C-2









 








TO BE COMPLETED BY TRANSFEROR IF (a) ABOVE IS CHECKED




          The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under
the Securities Act and, accordingly, the Transferor hereby further certifies that (i) the Transfer
is not being made to a person in the United States and (x) at the time the buy order was
originated, the Transferee was outside the United States or such Transferor and any Person acting
on its behalf reasonably believed and believes that the Transferee was outside the United States or
(y) the transaction was executed in, on or through the facilities of a designated offshore
securities market and neither such Transferor nor any Person acting on its behalf knows that the
transaction was prearranged with a buyer in the United States, (ii) no directed selling efforts
have been made in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S
under the Securities Act, (iii) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act and (iv) if the proposed Transfer is being made
prior to the expiration of the restricted period under Regulation S, the Transfer is not being made
to a U.S. Person or for the account or benefit of a U.S. Person (other than an initial purchaser).
Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the
Transferred beneficial interest or certificated Note will be subject to the restrictions on
Transfer enumerated on the Regulation S Notes and/or the certificated Note and in the Indenture and
the Securities Act.




	 	 	 	 	 	 	 	 	 
	Dated:
	 	 	 	 	 	 	 	 
	 

	 	 

	 	 	 	 

NOTICE:   To be executed by an executive officer
	 	 









C-3









 








EXHIBIT D




[FORM OF LEGEND FOR GLOBAL NOTE]




          Any Global Note authenticated and delivered hereunder shall bear a legend (which would be in
addition to any other legends required in the case of a Restricted Note) in substantially the
following form:




          THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY. THIS NOTE IS NOT EXCHANGEABLE
FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER THAN A
TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE
OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT
IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.




          Unless this Certificate is presented by an authorized representative of The Depository Trust
Company (a New York corporation) (“DTC”) to the Issuer 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 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.




D-1









 





EXHIBIT E




Form of Certificate To Be

Delivered in Connection with

Transfers to Non-QIB Accredited Investors




[          ], [     ]




U.S. BANK NATIONAL ASSOCIATION

Corporate Trust Services

One Federal Street, 3rd Floor

Boston, MA 02110

Ladies and Gentlemen:




          In connection with our proposed purchase of 10% Senior Secured Notes due 2013 (the “Notes”) of
NORTEK, INC., a Delaware corporation (the “Issuer”), we confirm that:





     1. We understand that any subsequent transfer of the Notes is subject to certain
restrictions and conditions set forth in the Indenture relating to the Notes (the
“Indenture”) and the undersigned agrees to be bound by, and not to resell, pledge or
otherwise transfer the Notes except in compliance with, such restrictions and conditions and
the Securities Act of 1933, as amended (the “Securities Act”), and all applicable State
securities laws.




     2. We understand that the offer and sale of the Notes have not been registered under
the Securities Act, and that the Notes may not be offered or sold except as permitted in the
following sentence. We agree, on our own behalf and on behalf of any accounts for which we
are acting as hereinafter stated, that if we should sell any Notes, we will do so only (i)
to the Issuer or any of its subsidiaries, (ii) inside the United States in accordance with
Rule 144A under the Securities Act to a “qualified institutional buyer” (as defined in Rule
144A under the Securities Act), (iii) inside the United States to an institutional
“accredited investor” (as defined below) that, prior to such transfer, furnishes (or has
furnished on its behalf by a U.S. broker-dealer) to the Trustee (as defined in the
Indenture) a signed letter containing certain representations and agreements relating to the
restrictions on transfer of the Notes (the form of which letter can be obtained from the
Trustee), (iv) outside the United States in accordance with Regulation S promulgated under
the Securities Act to non-U.S. persons, (v) pursuant to the exemption from registration
provided by Rule 144 under the Securities Act (if available), (vi) in accordance with
another exemption from the registration requirements of the Securities Act (and based upon
an opinion of counsel if the Issuer so requests) or (vii) pursuant to an effective
registration statement under the Securities Act, and we



E-1









 






further agree to provide to any person purchasing any of the Notes from us a notice
advising such purchaser that resales of the Notes are restricted as stated herein.




     3. We are not acquiring the Notes for or on behalf of, and will not transfer the Notes
to, any pension or welfare plan (as defined in Section 3 of the Employee Retirement Income
Security Act of 1974, as amended) or plan (as defined in Section 4975 of the Internal
Revenue Code of 1986, as amended), except as permitted in the section entitled “Notice to
Investors” of the Offering Circular dated May 13, 2008, relating to the Notes.




     4. We understand that, on any proposed resale of any Notes, we will be required to
furnish to the Trustee and the Issuer such certification, legal opinions and other
information as the Trustee and the Issuer may reasonably require to confirm that the
proposed sale complies with the foregoing restrictions. We further understand that the
Notes purchased by us will bear a legend to the foregoing effect.




     5. We are an institutional “accredited investor” (as defined in Rule 501(a)(1), (2),
(3) or (7) of Regulation D under the Securities Act) and have such knowledge and experience
in financial and business matters as to be capable of evaluating the merits and risks of our
investment in the Notes, and we and any accounts for which we are acting are each able to
bear the economic risk of our or their investment, as the case may be.




     6. We are acquiring the Notes purchased by us for our account or for one or more
accounts (each of which is an institutional “accredited investor”) as to each of which we
exercise sole investment discretion.



E-2









 





          You, the Issuer, the Trustee and others are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested party in any
administrative or legal proceeding or official inquiry with respect to the matters covered hereby.




	 	 	 	 	 
	 	Very truly yours,





[Name of Transferee]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 





E-3









 








EXHIBIT F




Form of Certificate To Be Delivered

in Connection with Transfers

Pursuant to Regulation S




U.S. BANK NATIONAL ASSOCIATION

Corporate Trust Services

One Federal Street, 3rd Floor

Boston, MA 02110




	 	 	 
	Re:

	 	Nortek, INC. (“the Issuer”)
	 

	 	10% Senior Secured Notes due 2013 (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 U.S. Securities Act of 1933, as amended (the “Securities Act”), and,
accordingly, we represent that:





     (1) the offer of the Notes was not made to a person in the United States;




     (2) either (a) at the time the buy offer was originated, the transferee was outside the
United States or we and any person acting on our behalf reasonably believed that the
transferee was outside the United States, or (b) the transaction was executed in, on or
through the facilities of a designated offshore securities market and neither we nor any
person acting on our behalf knows that the transaction has been prearranged with a buyer in
the United States;




     (3) no directed selling efforts have been made in the United States in contravention of
the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as applicable;




     (4) the transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act; and




     (5) we have advised the transferee of the transfer restrictions applicable to the
Notes.



F-1









 





          You, the Issuer and counsel for the Issuer are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested party in any
administrative or legal proceedings or official inquiry with respect to the matters covered hereby.
Terms used in this certificate have the meanings set forth in Regulation S.




	 	 	 	 	 
	 	Very truly yours,





[Name of Transferor]

 	 
	 	By:  	 	 
	 	 	Authorized Signature 	 
	 	 	 	 
	 




F-2









 





EXHIBIT G




FORM OF NOTATION OF GUARANTEE




          For value received, each Guarantor (which term includes any successor Person under the
Indenture) has, jointly and severally, unconditionally guaranteed, to the extent set forth in the
Indenture and subject to the provisions in the Indenture dated as of May 20, 2008 (the “Indenture”)
among Nortek, Inc., the Guarantors party thereto and U.S. Bank National Association, as trustee and
collateral agent (the “Trustee”), (a) the due and punctual payment of the principal of, premium, if
any, and interest on the Notes (as defined in the Indenture), whether at maturity, by acceleration,
redemption or otherwise, the due and punctual payment of interest on overdue principal and premium,
and, to the extent permitted by law, interest, and the due and punctual performance of all other
obligations of the Issuer to the Holders or the Trustee all in accordance with the terms of the
Indenture and (b) in case of any extension of time of payment or renewal of any Notes or any of
such other obligations, that the same will be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration
or otherwise. The obligations of the Guarantors to, the Holders of Notes and to the Trustee
pursuant to the Note Guarantee and the Indenture are expressly set forth in Article XI of the
Indenture and reference is hereby made to the Indenture for the precise terms of the Note
Guarantee. Each Holder of a Note, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee, on behalf of such Holder, to take such action
as may be necessary or appropriate to effectuate the subordination as provided in the Indenture and
(c) appoints the Trustee attorney-in-fact of such Holder for such purpose; provided, however, that
the Indebtedness evidenced by this Notation of Guarantee shall cease to be so subordinated and
subject in right of payment upon any defeasance of this Note in accordance with the provisions of
the Indenture.




[Signatures on following pages]






G-1









 








          IN WITNESS WHEREOF, each of the Guarantors has caused this Notation of Guarantee to be signed
by a duly authorized officer.




	 	 	 	 	 
	 	[Name of Guarantor]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 





G-2









 








EXHIBIT H




[FORM OF SUPPLEMENTAL INDENTURE

TO BE DELIVERED BY SUBSEQUENT GUARANTORS]




          Supplemental Indenture (this “Supplemental Indenture”), dated as of                                         , 20___,
among                                          (the “Guaranteeing Subsidiary”), a subsidiary of Nortek, Inc. (or its
permitted successor), a Delaware corporation (the “Issuer”), the Issuer and U.S. Bank National
Association, as trustee and collateral agent under the Indenture referred to below (the “Trustee”).




WITNESSETH




          WHEREAS, the Issuer has heretofore executed and delivered to the Trustee an indenture (the
“Indenture”), dated as of May 20, 2008 providing for the issuance of its 10% Senior Secured Notes
due 2013 (the “Notes”);




          WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiary
shall execute and deliver to the Trustee a supplemental indenture pursuant to which the
Guaranteeing Subsidiary shall unconditionally guarantee all of the Issuer’s Obligations under the
Notes and the Indenture on the terms and conditions set forth herein (the “Note Guarantee”); and




          WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute and
deliver this Supplemental Indenture.




          NOW, THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Guaranteeing Subsidiary and the
Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes
as follows:




          1. Capitalized Terms. Capitalized terms used herein without definition shall have the
meanings assigned to them in the Indenture.




          2. Agreement to Guarantee. The Guaranteeing Subsidiary hereby agrees to provide an
unconditional Guarantee on the terms and subject to the conditions set forth in the Note Guarantee
and in the Indenture including but not limited to Article XI thereof.




          3. No Recourse Against Others. No director, officer, employee, incorporator, member,
partner or stockholder of the Guaranteeing Subsidiary or any Parent, shall have any liability for
any obligations of the Issuer or any Guaranteeing Subsidiary under the Notes, any Note Guarantees,
the Indenture or this Supplemental Indenture or for any claim based on, in respect of, or by reason
of, such obligations or their creation. Each Holder of the Notes by accepting a Note waives and
releases all such liability. The waiver and release are part of the consideration for issuance of
the Notes.




 









 








          4. NEW YORK LAW TO GOVERN. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW
PRINCIPLES THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.




          5. Counterparts. The parties 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.




          6. Effect of Headings. The Section headings herein are for convenience only and shall
not affect the construction hereof.




          7. The Trustee. The Trustee shall not be responsible in any manner whatsoever for or
in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of
the recitals contained herein, all of which recitals are made solely by the Guaranteeing Subsidiary
and the Issuer.





-2-









 





          IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed and attested, all as of the date first above written.




          Dated:                                         , 20___




	 	 	 	 	 
	 	[Guaranteeing Subsidiary]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	U.S. BANK NATIONAL ASSOCIATION,

as Trustee

 	 
	 	By:  	 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 




 









 








SCHEDULE I




ASSETS UNDER CONTRACT




          1 4820 Red Bank Road, Cincinnati, Ohio







 









 








SCHEDULE II




EXISTING LIENS



Lien on 1620 Mid-American Industrial Court, Boonville, MO.






 









 








SCHEDULE III




MORTGAGED PROPERTY



1. 926 W. State St., Hartford, WI

2. 2501 Boonslick Dr., Boonville, MO (Boonslick)

3. 115 E. Oklahoma Ave., Okarche, OK

4. 4841 N. Sewell, Oklahoma City, OK

5. 501 S. Wilhite, Cleburne, TX

6. 448 Richard Blvd., Tipton, MO

7. 3121 Hartsfield Road, Tallahassee, FL

8. 6709 S. Main St., Union, IL