Exhibit 10.1 
























 


RUBY TUESDAY, INC.,


as Company


 







 


the Guarantors party hereto


 







 


and


 







 


WELLS FARGO BANK, NATIONAL ASSOCIATION,


 


as Trustee


 







 







 


_____________________________


 


INDENTURE


 


Dated as of May 14, 2012


____________________________




 


 


75⁄8% Senior Notes Due 2020


 


 



 






















 




  





  


 





  













CROSS-REFERENCE TABLE


 



	TIA Sections	
Indenture Sections


	 	 	 
	§ 310 	
(a)

	
7.10


	 	
(b)                                                                                               

	
7.08


	§ 311 	
                                                                                                      

	
7.03


	§ 312  	
                                                                                                     

	
11.02


	§ 314	
(a)

	
4,4.02


	 	
(c)                                                                                               

	
11.04


	 	
(e)                                                                                               

	
11.05


	§ 315 	
(a)

	
7.01, 7.02


	 	
(b)                                                                                               

	
7.02, 7.05


	 	
(c)                                                                                               

	
7.01


	 	
(d)                                                                                               

	
7.02


	 	
(e)                                                                                               

	
6.12, 7.02


	§ 316	
(a)

	
2.05, 6.02, 6.04, 6.05


	 	
(b)                                                                                               

	
6.06, 6.07


	 	
(c)                                                                                               

	
11.02


	§ 317 	
(a)(1)

	
6.08


	 	
(a)(2)                                                                                               

	
6.09


	 	
(b)                                                                                               

	
2.03


	§ 318 	
                                                                                                      

	
11.01







 




  





  











  


 




TABLE OF CONTENTS


 


Page


 



	
ARTICLE 1


	
DEFINITIONS AND INCORPORATION BY REFERENCE


	 	 	 
	
Section 1.01.

	
Definitions

	
1


	
Section 1.02.

	
Rules of Construction

	
27


	 	 	 
	
ARTICLE 2


	
THE NOTES


	 	 	 
	
Section 2.01.

	
Form, Dating and Denominations; Legends

	
27


	
Section 2.02.

	
Execution and Authentication; Exchange Notes; Additional Notes

	
28


	
Section 2.03.

	
Registrar, Paying Agent and Authenticating Agent; Paying Agent to Hold Money in Trust

	
29


	
Section 2.04.

	
Replacement Notes

	
30


	
Section 2.05.

	
Outstanding Notes

	
30


	
Section 2.06.

	
Temporary Notes

	
31


	
Section 2.07.

	
Cancellation

	
31


	
Section 2.08.

	
CUSIP and ISIN Numbers

	
31


	
Section 2.09.

	
Registration, Transfer and Exchange

	
31


	
Section 2.10.

	
Restrictions on Transfer and Exchange

	
34


	
Section 2.11.

	
Temporary Offshore Global Notes

	
35


	 	 	 
	
ARTICLE 3


	
REDEMPTION; OFFER TO PURCHASE


	 	 	 
	
Section 3.01.

	
Optional Redemption

	
36


	
Section 3.02.

	
Redemption with Proceeds of Equity Offering

	
36


	
Section 3.03.

	
Method and Effect of Redemption

	
36


	
Section 3.04.

	
Offer to Purchase

	
37


	 	 	 
	
ARTICLE 4


	
COVENANTS


	 	 	 
	
Section 4.01.

	
Payment of Notes

	
39


	
Section 4.02.

	
Maintenance of Office or Agency

	
39


	
Section 4.03.

	
Existence

	
40


	
Section 4.04.

	
Limitation on Debt

	
40


	
Section 4.05.

	
Limitation on Restricted Payments

	
43


	
Section 4.06.

	
Limitation on Liens

	
47


	
Section 4.07.

	
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries

	
47


	
Section 4.08.

	
Guarantees by Restricted Subsidiaries

	
49


	
Section 4.09.

	
Repurchase of Notes Upon a Change of Control

	
50





 




  





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Section 4.10.

	
Limitation on Asset Sales

	
50


	
Section 4.11.

	
Limitation on Transactions with Affiliates

	
52


	
Section 4.12.

	
Designation of Restricted and Unrestricted Subsidiaries

	
53


	
Section 4.13.

	
Financial Reports

	
55


	
Section 4.14.

	
Reports to Trustee

	
56


	
Section 4.15.

	
Limitation of Applicability of Certain Covenants if Notes Rated Investment Grade

	
56


	 	 	 
	
ARTICLE 5


	
CONSOLIDATION, MERGER OR SALE OF ASSETS


	 	 	 
	
Section 5.01.

	
Consolidation, Merger or Sale of Assets by the Company

	
57


	
Section 5.02.

	
Consolidation, Merger or Sale of Assets by a Guarantor

	
58


	 	 	 
	
ARTICLE 6


	
DEFAULT AND REMEDIES


	 	 	 
	
Section 6.01.

	
Events of Default

	
58


	
Section 6.02.

	
Acceleration

	
59


	
Section 6.03.

	
Other Remedies

	
60


	
Section 6.04.

	
Waiver of Past Defaults

	
60


	
Section 6.05.

	
Control by Majority

	
60


	
Section 6.06.

	
Limitation on Suits

	
60


	
Section 6.07.

	
Rights of Holders to Receive Payment

	
61


	
Section 6.08.

	
Collection Suit by Trustee

	
61


	
Section 6.09.

	
Trustee May File Proofs of Claim

	
61


	
Section 6.10.

	
Priorities

	
61


	
Section 6.11.

	
Restoration of Rights and Remedies

	
62


	
Section 6.12.

	
Undertaking for Costs

	
62


	
Section 6.13.

	
Rights and Remedies Cumulative

	
62


	
Section 6.14.

	
Delay or Omission Not Waiver

	
62


	
Section 6.15.

	
Waiver of Stay, Extension or Usury Laws

	
62


	 	 	 
	
ARTICLE 7


	
THE TRUSTEE


	 	 	 
	
Section 7.01.

	
General

	
63


	
Section 7.02.

	
Certain Rights of Trustee

	
63


	
Section 7.03.

	
Individual Rights of Trustee

	
64


	
Section 7.04.

	
Trustee’s Disclaimer

	
65


	
Section 7.05.

	
Notice of Default

	
65


	
Section 7.06.

	
Reports by Trustee to Holders

	
65


	
Section 7.07.

	
Compensation and Indemnity

	
65


	
Section 7.08.

	
Replacement of Trustee

	
66


	
Section 7.09.

	
Successor Trustee by Merger

	
66


	
Section 7.10.

	
Eligibility

	
67


	
Section 7.11.

	
Money Held in Trust

	
67





 




  





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Page




	 	 	 
	
ARTICLE 8


	
DEFEASANCE AND DISCHARGE


	 	 	 
	
Section 8.01.

	
Discharge of Company’s Obligations

	
67


	
Section 8.02.

	
Legal Defeasance

	
68


	
Section 8.03.

	
Covenant Defeasance

	
68


	
Section 8.04.

	
Application of Trust Money

	
69


	
Section 8.05.

	
Repayment to Company

	
69


	
Section 8.06.

	
Reinstatement

	
69


	 	 	 
	
ARTICLE 9


	
AMENDMENTS, SUPPLEMENTS AND WAIVERS


	 	 	 
	
Section 9.01.

	
Amendments Without Consent of Holders

	
69


	
Section 9.02.

	
Amendments With Consent of Holders

	
70


	
Section 9.03.

	
Effect of Consent

	
71


	
Section 9.04.

	
Trustee’s Rights and Obligations

	
71


	
Section 9.05.

	
Conformity With Trust Indenture Act

	
71


	 	 	 
	
ARTICLE 10


	
GUARANTEES


	 	 	 
	
Section 10.01.

	
The Guarantees

	
71


	
Section 10.02.

	
Guarantee Unconditional

	
72


	
Section 10.03.

	
Discharge; Reinstatement

	
72


	
Section 10.04.

	
Waiver by the Guarantors

	
72


	
Section 10.05.

	
Subrogation and Contribution

	
72


	
Section 10.06.

	
Stay of Acceleration

	
73


	
Section 10.07.

	
Limitation on Amount of Guarantee

	
73


	
Section 10.08.

	
Execution and Delivery of Guarantee

	
73


	
Section 10.09.

	
Release of Guarantee

	
73


	 	 	 
	
ARTICLE 11


	
MISCELLANEOUS


	 	 	 
	
Section 11.01.

	
Trust Indenture Act of 1939

	
73


	
Section 11.02.

	
Noteholder Communications; Noteholder Actions

	
74


	
Section 11.03.

	
Notices

	
74


	
Section 11.04.

	
Certificate and Opinion as to Conditions Precedent

	
75


	
Section 11.05.

	
Statements Required in Certificate or Opinion

	
75


	
Section 11.06.

	
Payment Date Other Than a Business Day

	
76


	
Section 11.07.

	
Governing Law

	
76


	
Section 11.08.

	
No Adverse Interpretation of Other Agreements

	
76


	
Section 11.09.

	
Successors

	
76


	
Section 11.10.

	
Duplicate Originals

	
76


	
Section 11.11.

	
Separability

	
76


	
Section 11.12.

	
Table of Contents and Headings

	
76





 




  





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Page




 


	
Section 11.13.

	
No Liability of Directors, Officers, Employees, Incorporators, Members and Stockholders

	
76


	
Section 11.14.

	
Benefits of Indenture

	
76


	
Section 11.15.

	
Indenture Controls

	
76


	
Section 11.16.

	
Rules by Trustee and Agents

	
76












EXHIBITS


 



	
EXHIBIT A

	
Form of Note


	
EXHIBIT B

	
Form of Supplemental Indenture


	
EXHIBIT C

	
Restricted Legend


	
EXHIBIT D

	
DTC Legend


	
EXHIBIT E

	
Regulation S Certificate


	
EXHIBIT F

	
Rule 144A Certificate


	
EXHIBIT G

	
Institutional Accredited Investor Certificate


	
EXHIBIT H

	
Certificate of Beneficial Ownership


	
EXHIBIT I

	
Temporary Offshore Global Note Legend





 




  





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INDENTURE, dated as of May 14, 2012, between Ruby Tuesday, Inc., a Georgia corporation, as the Company, the Guarantors party hereto and Wells Fargo Bank, National Association, a national banking association, as Trustee.







RECITALS







The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance of up to $250,000,000 aggregate principal amount of the Company’s 75⁄8% Senior Notes due 2020, and, if and when issued, any Additional Notes, together with any Exchange Notes issued therefor as provided herein (the “Notes”). All things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done, and the Company has done all things necessary to make the Notes (in the case of the Additional Notes, when duly authorized), when executed by the Company and authenticated and delivered by the Trustee and duly issued by the Company, the valid obligations of the Company as hereinafter provided.







In addition, the Guarantors party hereto have duly authorized the execution and delivery of this Indenture as guarantors of the Notes. All things necessary to make this Indenture a valid agreement of each Guarantor, in accordance with its terms, have been done, and each Guarantor has done all things necessary to make the Note Guarantees, when the Notes are executed by the Company and authenticated and delivered by the Trustee and duly issued by the Company, the valid obligations of such Guarantor as hereinafter provided.







This Indenture is subject to, and will be governed by, the provisions of the Trust Indenture Act that are required to be a part of and govern indentures qualified under the Trust Indenture Act.







THIS INDENTURE WITNESSETH







For and in consideration of the premises and the purchase of the Notes by the Holders thereof, the parties hereto covenant and agree, for the equal and proportionate benefit of all Holders, as follows:







ARTICLE 1







DEFINITIONS AND INCORPORATION BY REFERENCE







Section 1.01.   Definitions.







“Accounts Receivable” means (1) accounts receivable, (2) franchise fee payments and other revenues related to franchise agreements, (3) royalty and other similar payments made related to the use of trade names and other intellectual property, business support, training and other services and (4) revenues related to distribution and merchandising of the products of the Company and its Restricted Subsidiaries.







“ Acquired Debt” means Debt, Disqualified Stock or Preferred Stock of the Company, any Guarantor or any Restricted Subsidiary (provided that any such Restricted Subsidiary that is not a Guarantor will be merged with or into, or be the direct or indirect parent of, the acquired person) Incurred to finance an acquisition or other business combination or Debt, Disqualified Stock or Preferred Stock of a Person existing at the time the Person merges with or into or becomes a Restricted Subsidiary, whether or not Incurred in connection with, or in contemplation of, the Person merging with or into or becoming a Restricted Subsidiary.







“Additional Interest” means additional interest owed to the Holders pursuant to a Registration Rights Agreement.


 




  





  











  






 


“Additional Notes” means any notes issued under this Indenture in addition to the Original Notes including any Exchange Notes issued in exchange for such Additional Notes, having the same terms in all respects as the Original Notes except that the issue price may be different and interest will accrue on the Additional Notes from their date of issuance.







“Affiliate” means, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under direct or indirect common control with, such Person. For purposes of this definition, “control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”) with respect to any Person, means 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 contract or otherwise.







“Agent” means any Registrar, Paying Agent or Authenticating Agent.







“Agent Member” means a member of, or a participant in, the Depositary.







“Applicable Premium” means, with respect to any Note on any redemption date, the greater of:








(1)  1.0% of the principal amount of such Note; and









(2) the excess, if any, of (a) the present value at such redemption date of (i) the redemption price of such Note on May 15, 2016 (as stated in the table in Section 3.01), plus (ii) all required interest payments due on such Note through May 15, 2016 (excluding accrued but unpaid interest to the redemption date), computed using a discount rate equal to the Treasury Rate as of such redemption date plus 50 basis points; over (b) the principal amount of such Note.







Calculation of the Applicable Premium will be made by the Company or on behalf of the Company by such person as the Company shall designate; provided, however, that such calculation shall not be a duty or obligation of the Trustee.







“Asset Sale” means any sale, lease, transfer or other disposition of any assets by the Company or any Restricted Subsidiary outside the ordinary course of business, including by means of a merger, consolidation or similar transaction and including any sale or issuance of the Equity Interests of any Restricted Subsidiary (each of the above referred to as a “disposition”); provided that the following are not included in the definition of “Asset Sale”:







(1) a disposition to the Company or a Restricted Subsidiary, including the sale or issuance by the Company or any Restricted Subsidiary of any Equity Interests of any Restricted Subsidiary to the Company or any Restricted Subsidiary;







(2) the disposition by the Company or any Restricted Subsidiary in the ordinary course of business of (i) cash and Cash Equivalents, (ii) inventory and other assets acquired and held for resale in the ordinary course of business, (iii) damaged, worn out or obsolete assets or assets that, in the Company’s reasonable judgment, are no longer used or useful in the business of the Company or its Restricted Subsidiaries, or (iv) rights granted to others pursuant to leases, subleases, assignments, licenses or sublicenses;







(3) the sale or discount of Accounts Receivable arising in the ordinary course of business in connection with the compromise or collection thereof;








(4)  a transaction covered by Section 5.01;




 




  





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(5)  a Restricted Payment permitted under Section 4.05 or a Permitted Investment;









(6) any disposition in a transaction or series of related transactions of assets with a fair market value of less than $17.5 million;







(7) any exchange of assets (including a combination of assets and Cash Equivalents) for assets used or useful in a Permitted Business (or Equity Interests in a Person that will be a Restricted Subsidiary following such transaction) of comparable or greater market value, as determined in good faith by the Company;








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









(9) any financing transaction, including a sale and leaseback transaction, with respect to property built or acquired by the Company or any Restricted Subsidiary after the Issue Date;







(10) any disposition of Capital Stock of a Restricted Subsidiary pursuant to an agreement or other obligation with or to a Person (other than the Company or a Restricted Subsidiary) from whom such Restricted Subsidiary was acquired or from whom such Restricted Subsidiary acquired its business and assets (having been newly formed in connection with such acquisition), made as part of such acquisition and in each case comprising all or a portion of the consideration in respect of such sale or acquisition;







(11) any surrender or waiver of contract rights pursuant to a settlement, release, recovery on or surrender of contract, tort or other claims of any kind;







(12) sales of Accounts Receivable, or participations therein, and any related assets, in connection with any Permitted Receivables Financing;







(13) foreclosure or any similar action with respect to any property or other asset of the Company or any of its Restricted Subsidiaries;








(14)  dispositions in connection with Permitted Liens; and









(15) dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements.







“Authenticating Agent” refers to a Person engaged to authenticate the Notes in the stead of the


Trustee.







“Average Life” means, with respect to any Debt, Disqualified Stock or Preferred Stocks the quotient obtained by dividing (i) the sum of the products of (x) the number of years from the date of determination to the dates of each successive scheduled principal payment of such Debt or redemption or similar payment with respect to such Disqualified Stock or Preferred Stock and (y) the amount of such payment by (ii) the sum of all such payments.







“bankruptcy default” has the meaning assigned to such term in Section 6.01.







“ Board of Directors” means the board of directors or managers of the Company or, except for purposes of “Change of Control,” any committee thereof.




 




  





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“Board Resolution” means a resolution duly adopted by the Board of Directors which is certified by the Secretary or an Assistant Secretary of the Company (or Parent, as applicable) and remains in full force and effect as of the date of its certification.







“Business Day” means any day except a Saturday, Sunday or other day on which commercial banks in New York City or in the city where the Corporate Trust Office of the Trustee is located are authorized by law to close.







“Capital Lease” means, with respect to any Person, any lease of any property which, in conformity with GAAP, is required to be capitalized on the balance sheet of such Person.







“Capital Stock” means, with respect to any Person, any and all shares of stock of a corporation, partnership interests or other equivalent interests (however designated, whether voting or non-voting) in such Person’s equity, entitling the holder to receive a share of the profits and losses, and a distribution of assets, after liabilities, of such Person.







“Cash Equivalents” means







(1) United States dollars, or money in other currencies received in the ordinary course of business,







(2) U.S. Government Obligations or certificates representing an ownership interest in U.S. Government Obligations with maturities not exceeding one year from the date of acquisition,







(3) (i) demand deposits, (ii) time deposits and certificates of deposit with maturities of one year or less from the date of acquisition, (iii) bankers’ acceptances with maturities not exceeding one year from the date of acquisition, and (iv) overnight bank deposits, in each case with any bank or trust company organized or licensed under the laws of the United States or any state thereof or the District of Columbia whose short-term debt is rated “A-2” or higher by S&P or “P-2” or higher by Moody’s,







(4) repurchase obligations with a term of not more than seven days for underlying securities of the type described in clauses (2) and (3) above entered into with any financial institution meeting the qualifications specified in clause (3) above,







(5) commercial paper rated at least P-1 by Moody’s or A-1 by S&P and maturing within twelve months after the date of acquisition,







(6) Debt or Preferred Stock issued by Persons with a rating of A or higher from S&P or A2 or higher from Moody’s with maturities of twelve months or less from the date of acquisition and in each case in a currency permitted under clause (1) above,







(7) money market funds at least 95% of the assets of which consist of investments of the type described in clauses (1) through (6) above,







(8) in the case of a Foreign Restricted Subsidiary, substantially similar investments, of comparable credit quality, denominated in the currency of any jurisdiction in which such Person conducts business, and







(9) credit card receivables and debit card receivables so long as such are considered cash equivalents under GAAP and are so reflected on the Company’s balance sheet.




 




  





-4-











  











“Certificate of Beneficial Ownership” means a certificate substantially in the form of Exhibit H. 


 


“Certificated Note” means a Note in registered individual form without interest coupons. 


 


“Change of Control” means:







(1) the sale, exchange or other transfer of all or substantially all the assets of the Company (in one or a series of related transactions) to another Person; or







(2) any “person” or “group” (as such terms are used for purposes of Sections 13(d) and 14(d) of the Exchange Act), is or becomes the “beneficial owner” (as such term is used in Rules 13d-3 under the Exchange Act), directly or indirectly, of more than 50% of the total voting power of the Voting Stock of the Company; or







(3) during any period of two consecutive years, individuals who on the Issue Date constituted the board of directors or managers of the Company, together with any new directors or managers whose election by the board of directors or whose nomination for election by the equity holders of the Company was approved by a majority of the directors or managers then still in office who were either directors or managers or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority of the board of directors or managers of the Company then in office; or








(4)  the adoption of a plan relating to the liquidation or dissolution of the Company.









For purposes of this definition, (i) any direct or indirect holding company of the Company shall not itself be considered a Person for purposes of clause (1) above or a “person” or “group” for purposes of clause (2) above; provided that no “person” or “group” beneficially owns, directly or indirectly, more than 50% of the voting power of the Voting Stock of such company, (ii) no Change of Control pursuant to clause (1) above shall be deemed to have occurred solely as the result of a transfer of assets among the Company and its Restricted Subsidiaries, and (iii) a Person shall not be deemed to have beneficial ownership of securities subject to a stock purchase agreement, merger agreement or similar agreement until the consummation of the transactions contemplated by such agreement.







“Code” means the Internal Revenue Code of 1986.







“Commission” means the Securities and Exchange Commission.







“Company” means the party named as such in the first paragraph of this Indenture or any successor obligor under this Indenture and the Notes pursuant to Section 5.01.







“Consolidated Net Income” means, for any period, the aggregate net income (or loss) of the Company and its Restricted Subsidiaries for such period determined on a consolidated basis in conformity with GAAP; provided that the following (without duplication) will be excluded in computing Consolidated Net Income:







(1) the net income (but not loss) of any Person that is not a Restricted Subsidiary (including an Unrestricted Subsidiary), except to the extent of the dividends or other distributions actually paid in cash (or to the extent converted into cash) to the Company or any of its Restricted Subsidiaries (subject to clause (3) below) by such Person during such period;









  





-5-











  











(2) any net income (or loss) of any Person acquired in a pooling of interests transaction for any period prior to the date of such acquisition;







(3) for purposes of Section 4.05, the net income (but not loss) of any Restricted Subsidiary (other than any Guarantor) to the extent that the declaration or payment of dividends or similar distributions by such Restricted Subsidiary of such net income would not have been permitted for the relevant period by charter or by any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to such Restricted Subsidiary;







(4) any net after-tax gains or losses (less all fees and expenses or charges relating thereto) attributable to Asset Sales or to the early extinguishment of Debt or any net after-tax gains or losses associated with Hedging Agreements;







(5) any net after-tax extraordinary or non-recurring gains or losses (less all fees and expenses or charges relating, thereto), any non-cash amortization or impairment expenses and any restructuring expenses, including any severance expenses, relocation expenses, curtailments or modifications to pension and post-retirement employee benefit plans, any expenses related to any reconstruction, decommissioning, recommissioning or reconfiguration of fixed assets for alternate uses and fees, expenses or charges relating to facilities closing costs, acquisition integration costs, facilities opening costs, business optimization costs, signing, retention or completion bonuses;








(6)  the cumulative effect of a change in accounting principles;









(7) any non-cash expense realized or resulting from stock option plans, employee benefit plans or post-employment benefit plans, or grants or sales of stock, stock appreciation or similar rights, stock options, restricted stock, preferred stock or other rights;







(8) (a) (i) the non-cash portion of “straight-line” rent expense less (ii) the cash portion of “straight-line” rent expense which exceeds the amount expensed in respect of such rent expense and (b) non-cash gains, losses, income and expenses resulting from fair value accounting required by the applicable standard under GAAP and related interpretations;







(9) any currency translation gains and losses related to currency remeasurements of Debt, and any net loss or gain resulting from hedging transactions for currency exchange risk, until such gains or losses are actually realized (at which time they should be included);







(10) to the extent covered by insurance and actually reimbursed, or, so long as such Person has made a determination that there exists reasonable evidence that such amount will in fact be reimbursed by the insurer and only to the extent that such amount is (a) not denied by the applicable carrier in writing within 180 days and (b) in fact reimbursed within 365 days of the date of such evidence (with a deduction for any amount so added back to the extent not so reimbursed within 365 days), expenses with respect to liability or casualty events or business interruption;







(11) so long as the Company and its Restricted Subsidiaries file a consolidated tax return, or are part of a consolidated group for tax purposes, with any holding company, the excess of (a) the consolidated income tax expense for such period over (b) all tax payments in respect of such period paid or payable by the Company and its Restricted Subsidiaries to such holding company under a tax sharing agreement or arrangement;











  





-6-











  











(12) any expenses or charges related to any issuance of Equity Interests, Investment, acquisition, disposition, recapitalization or issuance, repayment, refinancing, amendment or modification of Debt (including amortization or write offs of debt issuance or deferred financing costs, premiums and prepayment penalties), in each case, whether or not successful, including any such expenses or charges attributable to the issuance and sale of the Notes and the consummation of the exchange offer pursuant to a Registration Rights Agreement;







(13) any expenses or reserves for liabilities to the extent that the Company or any Restricted Subsidiary is entitled to indemnification therefor under binding agreements; provided that any liabilities for which the Company or such Restricted Subsidiary is not actually indemnified shall reduce Consolidated Net Income in the period in which it is determined that the Company or such Restricted Subsidiary will not be indemnified; and







(14) any effects of adjustments in the Company’s consolidated financial statements, including adjustments to the inventory, property, equipment, software, goodwill, intangible assets (including favorable and unfavorable leases and contracts), deferred revenue and debt resulting from the application of purchase accounting pursuant to GAAP in relation to any consummated acquisition or the amortization or write-off or write-down of any amounts thereof, net of taxes.







“Corporate Trust Office” means the office of the Trustee at which the corporate trust business of the Trustee is principally administered, which at the date of this Indenture is located at Wells Fargo Bank, National Association, 7000 Central Parkway NE, Suite 550, Atlanta, Georgia 30328.







“ Credit Agreement” means the credit agreement dated as of December 1, 2010 among the Company, the lenders party thereto and Bank of America, N.A., as administrative agent, together with any related documents (including any security documents and guarantee agreements), as amended by Amendment No. 1, dated as of July 19, 2011, as further amended by Amendment No. 2, to be dated as of or before the Issue Date, and as further amended, modified, supplemented, extended, renewed, refinanced or replaced or substituted from time to time.







“Credit Facilities” means (i) the Credit Agreement, as amended, restated, supplemented, waived, replaced (whether or not upon termination, and whether with the original lenders or otherwise), restructured, repaid, refunded, refinanced or otherwise modified from time to time, including any agreement or indenture extending the maturity thereof, refinancing, replacing or otherwise restructuring all or any portion of the Debt under such agreement or agreements or indenture or indentures or any successor or replacement agreement or agreements or indenture or indentures or increasing the amount loaned or issued thereunder or altering the maturity thereof and (ii) whether or not the credit agreement referred to in clause (i) remains outstanding, if designated by the Company to be included in the definition of “Credit Facilities,” one or more (A) debt facilities or commercial paper facilities, providing for revolving credit loans, term loans, receivables financing (including through the sale of receivables to lenders or to special purpose entities formed to borrow from lenders against such receivables) or letters of credit, (B) debt securities, indentures or other forms of debt financing (including convertible or exchangeable debt instruments or bank guarantees or bankers’ acceptances), or (C) instruments or agreements evidencing any other Debt, in each case, with the same or different borrowers or issuers and, in each case, as amended, supplemented, modified, extended, restructured, renewed, refinanced, restated, replaced or refunded in whole or in part from time to time.







“Debt” means, with respect to any Person, without duplication,







(1)all indebtedness of such Person for borrowed money;











  





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(2) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments;







(3) all obligations of such Person in respect of letters of credit, bankers’ acceptances or other similar instruments, excluding obligations in respect of trade letters of credit or bankers’ acceptances issued in respect of trade payables to the extent not drawn upon or presented, or, if drawn upon or presented, the resulting obligation of the Person is paid within 10 Business Days;







(4) all obligations of such Person to pay the deferred and unpaid purchase price of property or services which are recorded as liabilities under GAAP, excluding trade payables or similar obligations arising in the ordinary course of business;







(5) all obligations of such Person as lessee under Capital Leases (other than the interest component thereof);








(6)  the amount of all Permitted Receivables Financings of such Person;










(7)  all Debt of other Persons Guaranteed by such Person to the extent so Guaranteed;









(8) all Debt of other Persons secured by a Lien on any asset of such Person, whether or not such Debt is assumed by such Person;








(9)  all obligations of such Person under Hedging Agreements; and









(10) the maximum fixed redemption or repurchase price of all Disqualified Equity Interests of such Person;







provided, however, that notwithstanding the foregoing, Debt shall be deemed not to include: (1) deferred or prepaid revenues or (2) any liability for federal, state, local or other taxes owed or owing to any governmental entity; and provided, further, that for purposes of Section 10.09, Debt shall not include insurance and other liabilities (not for borrowed money) Incurred in the ordinary course of business consistent with past practice.







The amount of Debt of any Person will be deemed to be:







(A) with respect to contingent obligations, the maximum liability upon the occurrence of the contingency giving rise to the obligation;







(B) with respect to Debt secured by a Lien on an asset of such Person but not otherwise the obligation, contingent or otherwise, of such Person, the lesser of (x) the fair market value of such asset on the date the Lien attached and (y) the amount of such Debt;







(C) with respect to any Debt issued with original issue discount, the face amount of such Debt less the remaining unamortized portion of the original issue discount of such Debt;







(D) with respect to any Hedging Agreement, the net amount payable if such Hedging Agreement terminated at that time due to default by such Person; and








(E)  otherwise, the outstanding principal amount thereof.









“Default” means any event that is, or after notice or passage of time or both would be, an Event of Default.


 




  





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“Depositary” means the depositary of each Global Note, which will initially be DTC.







“Designated Non-cash Consideration” means any non-cash consideration received by the Company or one of its Restricted Subsidiaries in connection with an Asset Sale that is designated as Designated Non-cash Consideration pursuant to an Officers’ Certificate executed by an officer of the Company or such Restricted Subsidiary at the time of such Asset Sale. Any particular item of Designated Non-cash Consideration will cease to be considered to be outstanding once it has been sold for cash or Cash Equivalents (which shall be considered Net Cash Proceeds of an Asset Sale when received).







“Disqualified Equity Interests” means Equity Interests that by their terms or upon the happening of any event are







(1) required to be redeemed or redeemable at the option of the holder prior to the Stated Maturity of the Notes for consideration other than Qualified Equity Interests, or







(2) convertible at the option of the holder into Disqualified Equity Interests or exchangeable for Debt;







provided that (i) only the portion of the Equity Interests which so matures or is mandatorily redeemable, is so convertible or exchangeable or is so redeemable at the option of the holder thereof prior to the Stated Maturity of the Notes shall be deemed to be Disqualified Equity Interests, (ii) if such Equity Interests are issued to any employee or to any plan for the benefit of employees of the Company or its Subsidiaries or by any such plan to such employees, such Equity Interests shall not constitute Disqualified Equity Interests solely because they may be required to be repurchased by the Company in order to satisfy applicable statutory or regulatory obligations or as a result of such employee’s termination, death or disability, (iii) any class of Equity Interests of such Person that by its terms authorizes such Person to satisfy its obligations thereunder by delivery of Equity Interests that are not Disqualified Equity Interests shall not be deemed to be Disqualified Equity Interests, and (iv) Equity Interests will not constitute Disqualified Equity Interests solely because of provisions giving holders thereof the right to require repurchase or redemption upon an “asset sale” or “change of control” occurring prior to the Stated Maturity of the Notes if those provisions








(A)  are pursuant to provisions similar to those in Sections 4.09 and 4.10, and









(B) specifically state that repurchase or redemption pursuant thereto will not be required prior to the Company’s repurchase of the Notes as required by this Indenture.







“Disqualified Stock” means Capital Stock constituting Disqualified Equity Interests.







“DTC” means The Depository Trust Company, a New York corporation, and its successors.







“DTC Legend” means the legend set forth in Exhibit D.







“Domestic Restricted Subsidiary” means any Restricted Subsidiary formed under the laws of the United States of America or any jurisdiction thereof.







“EBITDA” means, for any period, without duplication the sum of







(1)Consolidated Net Income, plus









  





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(2) Fixed Charges, to the extent deducted in calculating Consolidated Net Income including the amount of loss on sale of Accounts Receivables and related assets to a receivables subsidiary in connection with a Permitted Receivables Financing; plus







(3) to the extent deducted in calculating Consolidated Net Income and as determined on a consolidated basis for the Company and its Restricted Subsidiaries in conformity with GAAP:








(A)  income taxes; and









(B) depreciation, amortization and all other non-cash items reducing Consolidated Net Income (not including non-cash charges in a period which reflect cash expenses paid or to be paid in another period), less all non-cash items increasing Consolidated Net Income;







provided that, with respect to any Restricted Subsidiary, such items will be added only to the extent and in the same proportion that the relevant Restricted Subsidiary’s net income was included in calculating Consolidated Net Income, plus







(4) without duplication and to the extent deducted in calculating Consolidated Net Income, any expenses or charges related to any issuance of Equity Interests, acquisition or disposition of division or line of business, recapitalization or the Incurrence or repayment of Debt permitted to be Incurred by this Indenture (whether or not successful), plus







(5) any costs or expense Incurred pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement or any stock subscription or shareholder agreement, to the extent that such cost or expenses are funded with cash proceeds contributed to the capital of the Company or a Guarantor or net cash proceeds of an issuance of Equity Interests of the Company (other than Disqualified Stock) solely to the extent that such net cash proceeds are excluded from the calculation in Section 4.05(a)(3)(B) and are not an Excluded Contribution.







For purposes of calculating EBITDA, the net income of any Person and its Restricted Subsidiaries shall be calculated without deducting the income attributable to, or adding the losses attributable to, the minority equity interests of third parties in any non-Wholly Owned Restricted Subsidiary except to the extent of dividends declared or paid in respect of such period or any prior period on the shares of Capital Stock of such Restricted Subsidiary held by such third parties.







“Equity Interests” means all Capital Stock and all warrants or options with respect to, or other rights to purchase, Capital Stock, but excluding Debt convertible into, or exchangeable for, equity.







“Equity Offering” means an offering for cash, after the Issue Date, of Qualified Stock of the Company or of any direct or indirect parent of the Company (to the extent the proceeds thereof are contributed to the common equity of the Company) other than:







(1) public offerings with respect to the Company’s or any direct or indirect parent company’s common stock registered on Form S-4 or Form S-8;








(2)  issuances to any Subsidiary of the Company; or













  





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(3)any such public or private sale or issuance that constitutes an Excluded Contribution.







“Event of Default” has the meaning assigned to such term in Section 6.01.







“Excess Proceeds” has the meaning assigned to such term in Section 4.10.







“Exchange Act” means the Securities Exchange Act of 1934.







“Exchange Notes” means the Notes of the Company issued pursuant to this Indenture in exchange for, and in an aggregate principal amount equal to, the Initial Notes or any Initial Additional Notes in compliance with the terms of a Registration Rights Agreement and containing terms substantially identical to the Initial Notes or any Initial Additional Notes (except that (i) such Exchange Notes will be registered under the Securities Act and will not be subject to transfer restrictions or bear the Restricted Legend, and (ii) the provisions relating to Additional Interest will be eliminated).







“Exchange Offer” means an offer by the Company to the Holders of the Initial Notes or any Initial Additional Notes to exchange outstanding Notes for Exchange Notes, as provided for in a Registration Rights Agreement.







“Exchange Offer Registration Statement” means the Exchange Offer Registration Statement as defined in a Registration Rights Agreement.







“Excluded Contributions” means the Cash Equivalents or other assets (valued at their fair market value) received by the Company after the Issue Date from:








(1)  contributions to its common equity capital, and









(2) the sale (other than to a Subsidiary of the Company or to any Subsidiary management equity plan or stock option plan or any other management or employee benefit plan or agreement) of Capital Stock (other than Disqualified Stock) of the Company,







in each case designated as Excluded Contributions pursuant to an Officers’ Certificate executed by an officer of the Company on or promptly after the date such capital contributions are made or the date such Capital Stock is sold, as the case may be. Any Excluded Contribution shall be not be counted pursuant to Section 4.05(a)(3)(B).







“fair market value” means, unless otherwise specified, with respect to any asset or property, the sale value that would be obtained in an arm’s-length free market transaction between an informed and willing seller under no compulsion to sell and an informed and willing buyer under no compulsion to buy, as determined in good faith by the Company.







“Fixed Charge Coverage Ratio” means, on any date (the “transaction date”), the ratio of







(x) the aggregate amount of EBITDA for the four fiscal quarters immediately prior to the transaction date for which internal financial statements are available (the “reference period”) to








(y)  the aggregate Fixed Charges during such reference period.











  





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In making the foregoing calculation,







(1) pro forma effect will be given to any Debt, Disqualified Stock or Preferred Stock Incurred during or after the reference period to the extent the Debt, Disqualified Stock or Preferred Stock is outstanding or is to be Incurred on the transaction date as if the Debt, Disqualified Stock or Preferred Stock had been Incurred on the first day of the reference period;







(2) pro forma calculations of interest on Debt bearing a floating interest rate will be made as if the rate in effect on the transaction date (taking into account any Hedging Agreement applicable to the Debt if the Hedging Agreement has a remaining term of at least 12 months) had been the applicable rate for the entire reference period;







(3) Fixed Charges related to any Debt, Disqualified Stock or Preferred Stock no longer outstanding or to be repaid or redeemed on the transaction date will be excluded;








(4)  pro forma effect will be given to










(A)  the creation, designation or redesignation of Restricted and Unrestricted Subsidiaries,









(B) any acquisition or disposition of companies, divisions, lines of businesses or operations by the Company and its Restricted Subsidiaries, including any acquisition or disposition of a company, division or line of business since the beginning of the reference period by a Person that became a Restricted Subsidiary after the beginning of the reference period, and







(C) the discontinuation of any discontinued operations but, in the case of Fixed Charges, only to the extent that the obligations giving rise to the Fixed Charges will not be obligations of the Company or any Restricted Subsidiary following the transaction date







that have occurred since the beginning of the reference period as if such events had occurred, and, in the case of any disposition, the proceeds thereof applied, on the first day of the reference period. To the extent that pro forma effect is to be given to an acquisition, disposition or discontinuation of a company, division, line of business or operation, the pro forma calculation will be based upon the most recent four full fiscal quarters for which the relevant financial information is available. For purposes of this definition, whenever pro forma effect is to be given to an Investment, acquisition, disposition, merger, amalgamation, consolidation or discontinued operation, the pro forma calculations shall be made in good faith by a responsible financial or accounting officer of the Company (and may include, for the avoidance of doubt, cost savings, synergies and operating expense reductions resulting from such Investment, acquisition, merger, amalgamation or consolidation which is being given pro forma effect that have been or are expected to be realized based on actions taken, committed to be taken or expected in good faith to be taken within 12 months); provided that any increase to EBITDA as a result of cost savings, synergies and operating expense reductions pursuant to this paragraph shall not exceed 10% of EBITDA (prior to giving effect to such cost savings, synergies and operating expense reductions).







For purposes of making the computation referred to above, interest on any Debt under a revolving credit facility computed on a pro forma basis shall be computed based upon the average daily balance of such Debt during the applicable period. Interest on Debt that 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 rate,











  





-12-











  











shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Company may designate.







For purposes of this definition, any amount in a currency other than U.S. dollars will be converted to U.S. dollars in accordance with GAAP, in a manner consistent with that used in preparing the Company’s financial statements.







“Fixed Charge Coverage Test” has the meaning assigned to such term in Section 4.04.







“Fixed Charges” means, for any period, the sum of








(1)  Interest Expense for such period; and










(2)  the product of









(x) cash dividends paid on any Preferred Stock and cash and non-cash dividends paid, declared, accrued or accumulated on any Disqualified Stock of the Company or a Restricted Subsidiary, except for dividends payable in the Company’s Qualified Stock or paid to the Company or to a Restricted Subsidiary, and







(y) a fraction, the numerator of which is one and the denominator of which is one minus the sum of the currently effective combined Federal, state, local and foreign tax rate applicable to the Company and its Restricted Subsidiaries.







“Foreign Restricted Subsidiary” means any Restricted Subsidiary that is not a Domestic Restricted Subsidiary.







“GAAP” means generally accepted accounting principles in the United States of America as in effect as of the Issue Date.







“Global Note” means a Note in registered global form without interest coupons.







“Guarantee” means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Debt of any other Person and, without limiting the generality of the foregoing, any obligation, direct or indirect, contingent or otherwise, of such Person (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Debt of such other Person (whether arising by virtue of partnership arrangements, or by agreement to keep-well, to purchase assets, goods, securities or services, to take-or-pay, or to maintain financial statement conditions or otherwise) or (ii) entered into for purposes of assuring in any other manner the obligee of such Debt of the payment thereof or to protect such obligee against loss in respect thereof, in whole or in part; provided that the term “Guarantee” does not include endorsements for collection or deposit in the ordinary course of business. The term “Guarantee” used as a verb has a corresponding meaning.







“Guarantor” means (i) each Subsidiary Guarantor and (ii) each other Person that executes a supplemental indenture in the form of Exhibit B to this Indenture providing for the guaranty of the payment of the Notes, or any successor obligor under its Note Guaranty pursuant to Article 5, in each case unless and until such Guarantor is released from its Note Guaranty pursuant to this Indenture.







“Hedging Agreement” means (i) any interest rate swap agreement, interest rate cap agreement, interest rate collar agreement or other agreement designed to manage interest rates or (ii) any foreign exchange forward contract, currency swap agreement or other agreement designed to manage foreign exchange 




 




  





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rates or (iii) any commodity swap agreement, commodity cap agreement, commodity collar agreement, commodity or raw material futures contract or any other agreement designed to manage raw material prices.







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







“Incur” means, with respect to any Debt or Capital Stock, to incur, create, issue, assume or Guarantee such Debt or Capital Stock. If any Person becomes a Restricted Subsidiary on any date after the date of this Indenture (including by redesignation of an Unrestricted Subsidiary or failure of an Unrestricted Subsidiary to meet the qualifications necessary to remain an Unrestricted Subsidiary), the Debt and Capital Stock of such Person outstanding on such date will be deemed to have been Incurred by such Person on such date for purposes of Section 4.04, but will not be considered the sale or issuance of Equity Interests for purposes of Section 4.10. The accrual of interest, accretion of original issue discount or payment of interest in kind or the accretion or accumulation of dividends on any Equity Interests will not be considered an Incurrence of Debt or Capital Stock.







“Indenture” means this indenture, as amended or supplemented from time to time.







“Initial Additional Notes” means Additional Notes issued in an offering not registered under the Securities Act and any Notes issued in replacement thereof, but not including any Exchange Notes issued in exchange therefor.







“Initial Notes” means the Notes issued on the Issue Date and any Notes issued in replacement thereof, but not including any Exchange Notes issued in exchange therefor.







“Initial Purchasers” means the initial purchasers party to a purchase agreement with the Company relating to the sale of the Initial Notes or Initial Additional Notes by the Company.







“Institutional Accredited Investor Certificate” means a certificate substantially in the form of Exhibit G hereto.







“interest ,” in respect of the Notes, unless the context otherwise requires, refers to interest and Additional Interest, if any.







“Interest Expense” means, for any period, the consolidated interest expense of the Company and its Restricted Subsidiaries, plus, to the extent not included in such consolidated interest expense, and to the extent incurred, accrued or payable by the Company or its Restricted Subsidiaries, without duplication, (i) the interest component of Capital Lease Obligations determined in accordance with GAAP, (ii) amortization of debt discount, (iii) capitalized interest, (iv) non-cash interest expense, (v) commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptance financing, (vi) net costs associated with Hedging Agreements (including the amortization of fees but excluding unrealized gains or losses with respect thereto) and (vii) any premiums, fees, discounts, expenses and losses on the sale of Accounts Receivable (and any amortization thereof) payable by the Company or any Restricted Subsidiary in connection with a Permitted Receivables Financing.







“Interest Payment Date” means each May 15 and November 15 of each year, commencing November 15, 2012.







“Investment” means







(1)any direct or indirect advance, loan or other extension of credit to another Person,


 




  





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(2) any capital contribution to another Person, by means of any transfer of cash or other property or in any other form,







(3) any purchase or acquisition of Equity Interests, bonds, notes or other Debt, or other instruments or securities issued by another Person, including the receipt of any of the above as consideration for the disposition of assets or rendering of services, or








(4)  any Guarantee of any Debt of another Person.









If the Company or any Restricted Subsidiary (x) sells or otherwise disposes of any Equity Interests of any direct or indirect Restricted Subsidiary so that, after giving effect to that sale or disposition, such Person is no longer a Subsidiary of the Company, or (y) designates any Restricted Subsidiary as an Unrestricted Subsidiary in accordance with the provisions of this Indenture, all remaining Investments of the Company and the Restricted Subsidiaries in such Person shall be deemed to have been made at such time. “Investments” shall include the portion (proportionate to the Company’s equity interest in such Subsidiary) of the fair market value of the net assets of a Subsidiary of the Company at the time that such Subsidiary is designated an Unrestricted Subsidiary; provided that upon a redesignation of such Subsidiary as a Restricted Subsidiary, the Company shall be deemed to continue to have a permanent “Investment” in an Unrestricted Subsidiary in an amount (if positive) equal to (a) the Company’s “Investment” in such Subsidiary at the time of such redesignation; less (b) the portion (proportionate to the Company’s Equity Interest in such Subsidiary) of the fair market value of the net assets of such Subsidiary at the time of such redesignation.







“Investment Grade Rating” means a rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P, or an equivalent rating by any other Rating Agency.







“Issue Date” means May 14, 2012.







“Leverage Ratio” means, on any date (the “transaction date”), the ratio of







(x) the aggregate amount of, without duplication, Debt of the Company and its Restricted Subsidiaries on a consolidated basis, to







(y) the aggregate amount of EBITDA for the four fiscal quarters immediately prior to the transaction date for which internal financial statements are available (the “reference period”).







In making the foregoing calculation,







(1) any Debt, Disqualified Stock or Preferred Stock to be repaid or redeemed on the transaction date will be excluded; and








(2)  pro forma effect will be given to










(A)  the creation, designation or redesignation of Restricted and Unrestricted Subsidiaries,









(B) the acquisition or disposition of companies, divisions, lines of businesses or operations by the Company and its Restricted Subsidiaries, including any acquisition or disposition of a company, division or line of business since the beginning of the reference 


 




  





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period by a Person that became a Restricted Subsidiary after the beginning of the reference period, and







(C)the discontinuation of any discontinued operations







that have occurred since the beginning of the reference period as if such events had occurred, and, in the case of any disposition, the proceeds thereof applied, on the first day of the reference period. To the extent that pro forma effect is to be given to an acquisition, disposition or discontinuation of a company, division, line of business or operation, the pro forma calculation will be based upon the most recent four full fiscal quarters for which the relevant financial information is available. For purposes of this definition, whenever pro forma effect is to be given to an Investment, acquisition, disposition, merger, amalgamation, consolidation or discontinued operation, the pro forma calculations shall be made in good faith by a responsible financial or accounting officer of the Company (and may include, for the avoidance of doubt, cost savings, synergies and operating expense reductions resulting from such Investment, acquisition, merger, amalgamation or consolidation which is being given pro forma effect that have been or are expected to be realized based on actions taken, committed to be taken or expected in good faith to be taken within 12 months); provided that any increase to EBITDA as a result of cost savings, synergies and operating expense reductions pursuant to this paragraph shall not exceed 10% of EBITDA (prior to giving effect to such cost savings, synergies and operating expense reductions).







For purposes of this definition, any amount in a currency than U.S. dollars will be converted to U.S. dollars in accordance with GAAP, in a manner consistent with that used in preparing the Company’s financial statements.







“Lien” means any mortgage, pledge, security interest, encumbrance, lien or charge of any kind (including any conditional sale or other title retention agreement or Capital Lease); provided that in no event shall an operating lease be deemed to constitute a Lien.







“Moody’s” means Moody’s Investors Service, Inc. and its successors.







“Net Cash Proceeds” means (x) with respect to any Asset Sale, the proceeds of such Asset Sale in the form of cash (including (i) payments in respect of deferred payment obligations to the extent corresponding to, principal, but not interest, but only when received in the form of cash, and (ii) proceeds from the conversion of other consideration received but only when converted to cash or Cash Equivalents) net of







(1) brokerage commissions and other fees and expenses related to such Asset Sale, including fees and expenses of counsel, accountants, investment bankers, consultants and placement agents;







(2) provisions for taxes as a result of such Asset Sale taking into account the consolidated results of operations of the Company and its Restricted Subsidiaries;







(3) payments required to be made to any Person (other than the Company or a Subsidiary) owning a beneficial interest in the assets subject to such Asset Sale or to repay Debt outstanding at the time of such Asset Sale that is secured by a Lien on the property or assets sold;







(4) appropriate amounts to be provided as a reserve against liabilities associated with such Asset Sale, including pension and other post-employment benefit liabilities, liabilities related to environmental matters and indemnification obligations associated with such Asset Sale,




 




  





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with any subsequent reduction of the reserve other than by payments made and charged against the reserved amount to be deemed a receipt of cash; and







(5) payments of unassumed liabilities (not constituting Debt and not owed to the Company or any Subsidiary) relating to the assets sold at the time of, or within 30 days after the date of, such Asset Sale; and







(y) with respect to any issuance and sale of Qualified Equity Interests as referred to in Section 4.05, the proceeds of such issuance or sale in the form of cash or Cash Equivalents or other assets used or useful in the business (valued at the fair market value thereof), net of attorney’s fees, accountant’s fees and brokerage, consultation, underwriting and other fees and expenses actually incurred in connection with such issuance or sale and net of taxes paid or payable as a result of thereof.







“Non-Recourse Debt” means Debt as to which (i) neither the Company nor any Restricted Subsidiary provides any Guarantee or is directly or indirectly liable and (ii) no default thereunder would, as such, constitute a default under any Debt of the Company or any Restricted Subsidiary.







“Non-U.S. Person” means a Person that is not a U.S. person, as defined in Regulation S.







“Notes” has the meaning assigned to such term in the Recitals.







“Note Guaranty” means the guaranty of the Notes by a Guarantor pursuant to this Indenture.







“Obligations” means, with respect to any Debt, all obligations (whether in existence on the Issue Date or arising afterwards, absolute or contingent, direct or indirect) for or in respect of principal (when due, upon acceleration, upon redemption, upon mandatory repayment or repurchase pursuant to a mandatory offer to purchase, or otherwise), premium, interest, penalties, fees, indemnification, reimbursement and other amounts payable and liabilities and obligations (including performance obligations) with respect to such Debt, including all interest accrued or accruing after the commencement of any bankruptcy, insolvency or reorganization or similar case or proceeding at the contract rate (including, without limitation, any contract rate applicable upon default) specified in the relevant documentation, whether or not the claim for such interest is allowed as a claim in such case or proceeding.







“Offer to Purchase” has the meaning assigned to such term in Section 3.04.







“Offering Memorandum” means the Offering Memorandum dated May 7, 2012 relating to the sale of the Initial Notes.







“Officer” means the chairman of the Board of Directors, the president or chief executive officer, any vice president, the chief financial officer, the treasurer or any assistant treasurer, or the secretary or any assistant secretary, of the Company.







“Officers’ Certificate” means a certificate signed by two Officers.







“Offshore Global Note” means a Global Note representing Notes issued and sold pursuant to Regulation S.







“Opinion of Counsel” means a written opinion signed by legal counsel, who may be an employee of or counsel to the Company, reasonably satisfactory to the Trustee.







“Original Notes” means the Initial Notes and any Exchange Notes issued in exchange therefor.


 




  





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“Pari Passu Indebtedness” has the meaning assigned to such term in Section 4.10(a)(4).







“Paying Agent” refers to a Person engaged to perform the obligations of the Trustee in respect of payments made or funds held hereunder in respect of the Notes.







“Permanent Offshore Global Note” means an Offshore Global Note that does not bear the Temporary Offshore Global Note Legend.







“Permitted Bank Debt” has the meaning assigned to such term in Section 4.04(b)(1).







“Permitted Business” means any of the businesses in which the Company and its Restricted Subsidiaries are engaged on the Issue Date, and any business reasonably related, incidental, complementary or ancillary thereto and any unrelated business to the extent that it is not material in size as compared to the business of the Company and its Restricted Subsidiaries taken as a whole.







“Permitted Debt” has the meaning assigned to such term in Section 4.04.







“Permitted Investments” means:








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










(2)  any Investment in cash and Cash Equivalents;









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








(A)  such Person becomes a Restricted Subsidiary of the Company, or









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







(4) Investments received as non-cash consideration in an Asset Sale made pursuant to and in compliance with Section 4.10 or in any disposition of assets not constituting an Asset Sale;







(5) any Investment acquired solely in exchange for Equity Interests (other than Disqualified Stock) of the Company or any direct or indirect parent of the Company;








(6)  any Investment pursuant to a Hedging Agreements otherwise permitted under this Indenture;









(7) (i) receivables owing to the Company or any Restricted Subsidiary if created or acquired in the ordinary course of business, (ii) prepaid expenses or deposits created in the ordinary course of business and set forth on the Company’s or any Restricted Subsidiary’s balance sheet, (iii) endorsements for collection or deposit in the ordinary course of business, and (iv) securities, instruments or other obligations received in compromise or settlement of debts created in the ordinary course of business, or by reason of a composition or readjustment of debts or bankuptcy, workout or reorganization of another Person, or in satisfaction of claims or judgments;







(8) Investments in Unrestricted Subsidiaries and joint ventures in an aggregate amount, taken together with all other Investments made in reliance on this clause that are at the


 




  





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time outstanding, not to exceed the greater of $50.0 million and 4.0% of Total Assets of the Company at the time of Investment (net of, with respect to the Investment in any particular Person, the cash return thereon received after the Issue Date as a result of any sale for cash, repayment, redemption, liquidating distribution or other cash realization (not included in Consolidated Net Income), not to exceed the amount of Investments in such Person made after the Issue Date in reliance on this clause); provided, however, that if any Investment pursuant to this clause is made in any Person that is not a Restricted Subsidiary of the Company at the date of the making of such Investment and such Person becomes a Restricted Subsidiary of the Company after such date, such Investment shall thereafter be deemed to have been made pursuant to clause (1) above and shall cease to have been made pursuant to this clause for so long as such Person continues to be a Restricted Subsidiary;







(9) payroll, travel, moving and other loans or advances to, or Guarantees issued to support the obligations of, officers and employees, in each case in the ordinary course of business;







(10) extensions of credit to customers, suppliers, licensees and franchisees in the ordinary course of business consistent with past practice;







(11) any Investments in Persons engaged in Permitted Businesses in an aggregate amount, taken together with all other Investments made in reliance on this clause that are at the time outstanding, not to exceed the greater of $50.0 million and 4.0% of Total Assets of the Company at the time of Investment (net of, with respect to the Investment in any particular Person made pursuant to this clause, the cash return thereon received after the Issue Date as a result of any sale for cash, repayment, redemption, liquidating distribution or other cash realization (not included in Consolidated Net Income) not to exceed the amount of such Investments in such Person made after the Issue Date in reliance on this clause) provided, however, that if any Investment pursuant to this clause is made in any Person that is not a Restricted Subsidiary of the Company at the date of the making of such Investment and such Person becomes a Restricted Subsidiary of the Company after such date, such Investment shall thereafter be deemed to have been made pursuant to clause (1) above and shall cease to have been made pursuant to this clause for so long as such Person continues to be a Restricted Subsidiary;







(12) any Investment existing on, or made pursuant to binding commitments existing on, the Issue Date or an Investment consisting of any extension, modification or renewal of any Investment existing on the Issue Date; provided that the amount of any such Investment may be increased as required by the terms of such Investment as in existence on the Issue Date;







(13) any Investment acquired by the Company or any of its Restricted Subsidiaries as a result of a foreclosure by the Company 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;








(14)  guarantees issued in accordance with Section 4.04;









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







(16) any Investment in any Subsidiary of the Company or any joint venture in connection with intercompany cash management arrangements or related activities arising in the ordinary course of business consistent with past practice; and


 




  





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(17)   Investments arising as a result of any Permitted Receivables Financing.







“Permitted Liens” means







(1) Liens existing on the Issue Date (other than with respect to “Obligations” as referenced under the Credit Agreement);








(2)  Liens securing the Notes or any Note Guarantees;









(3) Liens securing Obligations under or with respect to any Permitted Bank Debt (including, without limitations, the “Obligations” as defined in the Credit Agreement) or any Debt of a Restricted Subsidiary that is not a Guarantor;







(4) pledges or deposits under worker’s compensation laws, unemployment insurance laws or similar legislation, or good faith deposits in connection with bids, tenders, contracts or leases, or to secure public or statutory obligations, surety bonds, customs duties and the like, or for the payment of rent, in each case incurred in the ordinary course of business and not securing Debt;







(5) Liens imposed by law, such as carriers’, vendors’, warehousemen’s, landlords’ and mechanics’ liens, in each case for sums not yet due or being contested in good faith and by appropriate proceedings;







(6) Liens in respect of taxes and other governmental assessments and charges which are not yet due or which are being contested in good faith and by appropriate proceedings;







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







(8) minor survey exceptions, minor encumbrances, easements or reservations of, or rights of others for, licenses, rights of way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions as to the use of real property, not interfering in any material respect with the conduct of the business of the Company and its Restricted Subsidiaries;







(9) licenses or leases or subleases as licensor, lessor or sublessor of any of its property, including intellectual property, in the ordinary course of business;







(10) customary Liens in favor of trustees and escrow agents, and netting and setoff rights, banker’s liens, margins liens and the like in favor of financial institutions and counterparties to financial obligations and instruments, including any such Liens securing Obligations under Hedging Agreements;







(11) Liens on assets pursuant to merger agreements, stock or asset purchase agreements and similar agreements in respect of the disposition of such assets;







(12) options, put and call arrangements, rights of first refusal and similar rights relating to Investments in joint ventures, partnerships and the like;











  





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(13) judgment liens, and Liens securing appeal bonds or letters of credit issued in support of or in lieu of appeal bonds, so long as no Event of Default then exists as a result thereof;







(14) (a) Liens incurred in the ordinary course of business not securing Debt and not in the aggregate materially detracting from the value of the properties or their use in the operation of the business of the Company and its Restricted Subsidiaries and (b) Liens arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into in the ordinary course of business in accordance with past practices;







(15) Liens (including the interest of a lessor under a Capital Lease) on property that secure Debt Incurred pursuant to Section 4.04(b)(9) for the purpose of financing all or any part of the purchase price or cost of acquisition, construction or improvement of such property and which attach within 365 days of the date of such purchase or the completion of acquisition, construction or improvement;







(16) Liens on property or Equity Interests of a Person at the time such Person becomes a Restricted Subsidiary of the Company; provided such Liens were not created in contemplation thereof and do not extend to any other property of the Company or any Restricted Subsidiary;







(17) Liens on property at the time the Company or any of the Restricted Subsidiaries acquires such property, including any acquisition by means of a merger or consolidation with or into the Company or a Restricted Subsidiary of such Person; provided such Liens were not created in contemplation thereof and do not extend to any other property of the Company or any Restricted Subsidiary;







(18) Liens securing Debt or other obligations of the Company or a Restricted Subsidiary to the Company or a Restricted Subsidiary that is a Guarantor;







(19) (a) Liens securing Hedging Agreements so long as such Hedging Agreements are with the lenders party to the Credit Agreement or their Affiliates, and (b) customary margin requirements and the like securing Hedging Agreements;







(20) Liens on specific items of inventory or other goods and proceeds of any Person securing such Person’s obligations in respect of bankers’ acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;








(21)  deposits made in the ordinary course of business to secure liability to insurance carriers;










(22)  Liens on the Equity Interests of Unrestricted Subsidiaries;









(23) extensions, renewals or replacements of any Liens referred to in clauses (1), (2), (15), (16), (17) or (24) in connection with the refinancing of the obligations secured thereby; provided that such Lien does not extend to any other property and, except as contemplated by the definition of “Permitted Refinancing Debt,” the amount secured by such Lien is not increased;







(24) other Liens securing Debt other than Debt incurred pursuant to Section 4.04(b)(1); provided that, after giving effect to the Incurrence of such Debt and Liens on a pro


 




  





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forma basis, the Secured Debt Ratio would be no greater than 2.5 to 1.0 (and such Liens shall be on the same assets securing obligations in respect of such Debt); provided, further, that for purposes of calculating the Secured Debt Ratio with respect to this clause (24), the amount of Permitted Bank Debt outstanding pursuant to Section 4.04(b)(1) shall be deemed to be no less than $200.0 million at such time (the cash proceeds of any Debt and Liens then incurred under this clause (24) shall not be netted from Debt for purposes of the Secured Debt Ratio);








(25)  Liens arising under any Permitted Receivables Financing;









(26) Liens on equipment of the Company or any Restricted Subsidiary granted in the ordinary course of business to the Company’s or such Restricted Subsidiary’s client at which such equipment is located; and








(27)  other Liens securing obligations not to exceed $30 million at any one time outstanding.









“Permitted Receivables Financing” means any receivables financing facility or arrangement pursuant to which a Securitization Subsidiary purchases or otherwise acquires Accounts Receivable of the Company or any Restricted Subsidiaries and enters into a third party financing thereof on terms that the Board of Directors has concluded are customary and market terms fair to the Company and its Restricted Subsidiaries.







“Permitted Refinancing Debt” has the meaning assigned to such term in Section 4.04.







“ Person” means an individual, a corporation, a partnership, a limited liability company, an association, a trust or any other entity, including a government or political subdivision or an agency or instrumentality thereof.







“Preferred Stock” means, with respect to any Person, any and all Capital Stock which is preferred as to the payment of dividends or distributions, upon liquidation or otherwise, over another class of Capital Stock of such Person.







“principal” of any Debt means the principal amount of such Debt (or if such Debt was issued with original issue discount, the face amount of such Debt less the remaining unamortized portion of the original issue discount of such Debt), together with, unless the context otherwise indicates, any premium then payable on such Debt.







“ Qualified Equity Interests” means all Equity Interests of a Person other than Disqualified Equity Interests.







“Qualified Stock” means all Capital Stock of a Person other than Disqualified Stock.







“Rating Agencies” means Moody’s and S&P or if either Moody’s or S&P or both shall not make a rating on the Notes publicly available for reasons outside the Company’s control, a nationally recognized statistical rating agency or agencies, as the case may be, selected by the Company that shall be substituted for Moody’s or S&P or both, as the case may be.







“refinance” has the meaning assigned to such term in Section 4.04.







“Register” has the meaning assigned to such term in Section 2.09.











  





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“Registrar” means a Person engaged to maintain the Register.







“ Registration Rights Agreement” means (i) the Registration Rights Agreement dated on or about the Issue Date between the Company and the Initial Purchasers party thereto with respect to the Initial Notes, and (ii) with respect to any Additional Notes, any registration rights agreements between the Company and the Initial Purchasers party thereto relating to rights given by the Company to the purchasers of Additional Notes to register such Additional Notes or exchange them for Notes registered under the Securities Act.







“Regular Record Date” for the interest payable on any Interest Payment Date means the May 1 or November 1 (whether or not a Business Day) next preceding such Interest Payment Date.







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







“Regulation S Certificate” means a certificate substantially in the form of Exhibit E hereto.







“Related Party Transactions” has the meaning assigned to such term in Section 4.11.







“Restricted Legend” means the legend set forth in Exhibit C.







“Restricted Payment” has the meaning assigned to such term in Section 4.05.







“Restricted Period” means the relevant 40-day distribution compliance period as defined in Regulation S.







“Restricted Subsidiary” means any Subsidiary of the Company other than an Unrestricted Subsidiary.







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







“Rule 144A Certificate” means (i) a certificate substantially in the form of Exhibit F hereto or (ii) a written certification addressed to the Company and the Trustee to the effect that the Person making such certification (x) is acquiring such Note (or beneficial interest) for its own account or one or more accounts with respect to which it exercises sole investment discretion and that it and each such account is a qualified institutional buyer within the meaning of Rule 144A, (y) is aware that the transfer to it or exchange, as applicable, is being made in reliance upon the exemption from the provisions of Section 5 of the Securities Act provided by Rule 144A, and (z) acknowledges that it has received such information regarding the Company as it has requested pursuant to Rule 144A(d)(4) or has determined not to request such information.







“S&P” means Standard & Poor’s Ratings Group, a division of McGraw Hill, Inc. and its successors.







“Secured Debt Ratio” means, on any date (the “transaction date”), the ratio of







(x) (i) the aggregate amount of, without duplication, (A) Debt of the Company and the Guarantors that is secured by Liens on any assets of the Company or any Guarantor, plus (B) any Debt of the Company’s Restricted Subsidiaries that are not Guarantors minus (ii) the aggregate amount of unrestricted cash and Cash Equivalents of the Company and its Restricted Subsidiaries, to


 




  





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(y) the aggregate amount of EBITDA for the four fiscal quarters immediately prior to the transaction date for which internal financial statements are available (the “reference period”).







In making the foregoing calculation,







(1) any Debt, Disqualified Stock or Preferred Stock to be repaid or redeemed on the transaction date will be excluded; and








(2)  pro forma effect will be given to










(A)  the creation, designation or redesignation of Restricted and Unrestricted Subsidiaries,









(B) the acquisition or disposition of companies, divisions, lines of businesses or operations by the Company and its Restricted Subsidiaries, including any acquisition or disposition of a company, division or line of business since the beginning of the reference period by a Person that became a Restricted Subsidiary after the beginning of the reference period, and








(C)  the discontinuation of any discontinued operations









that have occurred since the beginning of the reference period as if such events had occurred, and, in the case of any disposition, the proceeds thereof applied, on the first day of the reference period. To the extent that pro forma effect is to be given to an acquisition, disposition or discontinuation of a company, division, line of business or operation, the pro forma calculation will be based upon the most recent four full fiscal quarters for which the relevant financial information is available. For purposes of this definition, whenever pro forma effect is to be given to an Investment, acquisition, disposition, merger, amalgamation, consolidation or discontinued operation, the pro forma calculations shall be made in good faith by a responsible financial or accounting officer of the Company (and may include, for the avoidance of doubt, cost savings, synergies and operating expense reductions resulting from such Investment, acquisition, merger, amalgamation or consolidation which is being given pro forma effect that have been or are expected to be realized based on actions taken, committed to be taken or expected in good faith to be taken within 12 months); provided that any increase to EBITDA as a result of cost savings, synergies and operating expense reductions pursuant to this paragraph shall not exceed 10% of EBITDA (prior to giving effect to such cost savings, synergies and operating expense reductions).







For purposes of the calculation of the Secured Debt Ratio used at any time, any Permitted Bank Debt that is unsecured shall be deemed to be Debt secured by a lien on assets of the Company or a Guarantor and the cash proceeds of any Debt then incurred shall not be netted from Debt for purposes of this definition.







For purposes of this definition, any amount in a currency other than U.S. dollars will be converted to U.S. dollars in accordance with GAAP, in a manner consistent with that used in preparing the Company’s financial statements.







“Securities Act” means the Securities Act of 1933.







“Securitization Subsidiary” means a Subsidiary of the Company







(1)that is designated a “Securitization Subsidiary” by the Board of Directors,




 




  





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(2) that does not engage in, and whose charter prohibits it from engaging in, any activities other than Permitted Receivables Financings and any activity necessary, incidental or related thereto,








(3)  no portion of the Debt or any other obligation, contingent or otherwise, of which










(A)  is Guaranteed by the Company or any Restricted Subsidiary of the Company,









(B) is recourse to or obligates the Company or any Restricted Subsidiary of the Company in any way, or







(C) subjects any property or asset of the Company or any Restricted Subsidiary of the Company, directly or indirectly, contingently or otherwise, to the satisfaction thereof, and







(4) with respect to which neither the Company nor any Restricted Subsidiary of the Company (other than an Unrestricted Subsidiary) has any obligation to maintain or preserve its financial condition or cause it to achieve certain levels of operating results,







other than, in respect of clauses (3) and (4), pursuant to customary representations, warranties, covenants and indemnities entered into in connection with a Permitted Receivables Financing.







“Share Repurchase” means the declaration and payment of a dividend or other distribution on, and/or repurchase by the Company in respect of, its outstanding common stock at any time and from time to time in an amount not to exceed $50.0 million in the aggregate.







“Shelf Registration Statement” means the Shelf Registration Statement as defined in a Registration Rights Agreement.







“Significant Restricted Subsidiary” means any Restricted Subsidiary, or group of Restricted Subsidiaries, that would, taken together, be a “significant subsidiary” as defined in Article 1, Rule 1-02 (w) of Regulation S-X promulgated under the Securities Act, as such regulation is in effect on the date of this Indenture.







“Stated Maturity” means (i) with respect to any Debt, the date specified as the fixed date on which the final installment of principal of such Debt is due and payable or (ii) with respect to any scheduled installment of principal of or interest on any Debt, the date specified as the fixed date on which such installment is due and payable as set forth in the documentation governing such Debt, not including any contingent obligation to repay, redeem or repurchase prior to the regularly scheduled date for payment.







“Subordinated Debt” means any Debt of the Company or any Guarantor which is subordinated in right of payment to the Notes or the Note Guaranty, as applicable, pursuant to a written agreement to that effect.







“Subsidiary” means with respect to any Person, any corporation, association or other business entity of which more than 50% of the outstanding Voting Stock is owned, directly or indirectly, by such Person and one or more Subsidiaries of such Person (or a combination thereof). Unless otherwise specified, “Subsidiary” means a Subsidiary of the Company.

 




  





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“Subsidiary Guarantor” means each Domestic Restricted Subsidiary of the Company that executed this Indenture as a guarantor on the Issue Date and each other Domestic Restricted Subsidiary that executes a supplemental indenture in the form attached to this Indenture as Exhibit B providing for the guaranty of the payment of the Notes, or any successor obligor under its Note Guaranty pursuant to Section 5.02, in each case unless and until such Subsidiary Guarantor is released from its Note Guaranty pursuant to this Indenture.







“Temporary Offshore Global Note” means an Offshore Global Note that bears the Temporary Offshore Global Note Legend.







“Temporary Offshore Global Note Legend” means the legend set forth in Exhibit I.







“Total Assets” means the total consolidated assets of the Company and its Restricted Subsidiaries, as shown on the most recent balance sheet of the Company provided to the Trustee pursuant to Section 4.13 (or required to be provided thereunder), calculated on a pro forma basis to give effect to any acquisition or disposition of companies, divisions, lines of businesses or operations by the Company and its Restricted Subsidiaries subsequent to such date and on or prior to the date of determination.







“Treasury Rate” means, as of any redemption date, the yield to maturity as of such redemption date of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) that has become publicly available at least two Business Days prior to the redemption date (or, if such Statistical Release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from the redemption date to May 15, 2016; provided, however, that if the period from the redemption date to May 15, 2016 is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year will be used.







“Trustee” means the party named as such in the first paragraph of this Indenture or any successor trustee under this Indenture pursuant to Article 7.







“Trust Indenture Act” means the Trust Indenture Act of 1939.







“U.S. Global Note” means a Global Note that bears the Restricted Legend representing Notes issued and sold pursuant to Rule 144A.







“U.S. Government Obligations” means obligations issued or directly and fully guaranteed or insured by the United States of America or by any agency or instrumentality thereof; provided that the full faith and credit of the United States of America is pledged in support thereof.







“Unrestricted Subsidiary” means any (1) Securitization Subsidiary, and (2) Subsidiary of the Company that at the time of determination has previously been designated, and continues to be, an Unrestricted Subsidiary in accordance with Section 4.12.







“Voting Stock” means, with respect to any Person, Capital Stock of any class or kind ordinarily having the power to vote for the election of directors, managers or other voting members of the governing body of such Person.







“Wholly Owned” means, with respect to any Restricted Subsidiary, a Restricted Subsidiary all of the outstanding Capital Stock of which (other than any director’s qualifying shares) is owned by the Company and one or more Wholly Owned Restricted Subsidiaries (or a combination thereof).


 




  





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Section 1.02. Rules of Construction. Unless the context otherwise requires or except as otherwise expressly provided,







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







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







(3) all references to Sections or Articles or Exhibits refer to Sections or Articles or Exhibits of or to this Indenture unless otherwise indicated;







(4) references to agreements or instruments, or to statutes or regulations, are to such agreements or instruments, or statutes or regulations, as amended from time to time (or to successor statutes and regulations);







(5) in the event that a transaction meets the criteria of more than one category of permitted transactions or listed exceptions the Company may classify such transaction as it, in its sole discretion, determines;








(6)  “or” is not exclusive; and










(7)  words in the singular include the plural, and words in the plural include the singular.









ARTICLE 2







THE NOTES







Section 2.01.   Form, Dating and Denominations; Legends.







(a) The Notes and the Trustee’s certificate of authentication will be substantially in the form attached as Exhibit A. The terms and provisions contained in the form of the Notes annexed as Exhibit A constitute, and are hereby expressly made, a part of this Indenture. The Notes may have notations, legends or endorsements required by law, rules of or agreements with national securities exchanges to which the Company is subject, or usage. Each Note will be dated the date of its authentication. The Notes will be issuable in denominations of $2,000 in principal amount and any multiple of $1,000 in excess thereof.







(b) (1) Except as otherwise provided in paragraph (c), Section 2.10(b)(3), (b)(5), or (c) or Section 2.09(b)(4), each Initial Note or Initial Additional Note (other than a Permanent Offshore Note) will bear the Restricted Legend.







(2)Each Global Note, whether or not an Initial Note or Additional Note, will bear the DTC


Legend.







(3)Each Temporary Offshore Global Note will bear the Temporary Offshore Global Note


Legend.







(4) Initial Notes and Initial Additional Notes offered and sold in reliance on Regulation S will be issued as provided in Section 2.11(a).




 




  





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(5) Initial Notes and Initial Additional Notes offered and sold in reliance on any exception under the Securities Act other than Regulation S and Rule 144A will be issued, and upon the request of the Company to the Trustee, Initial Notes offered and sold in reliance on Rule 144A may be issued, in the form of Certificated Notes.








(6)  Exchange Notes will be issued, subject to Section 2.09(b), in the form of one or more Global Notes.









(c) (1) If the Company determines (upon the advice of counsel and such other certifications and evidence as the Company may reasonably require) that a Note is eligible for resale, pursuant to Rule 144 under the Securities Act (or a successor provision) without compliance with any limits thereunder and that the Restricted Legend is no longer necessary or appropriate in order to ensure that subsequent transfers of the Note (or a beneficial interest therein) are effected in compliance with the Securities Act, or








(2)  after an Initial Note or any Initial Additional Note is









(x) sold pursuant to an effective registration statement under the Securities Act, pursuant to the Registration Rights Agreement or otherwise, or








(y)  is validly tendered for exchange into an Exchange Note pursuant to an Exchange Offer









the Company may instruct the Trustee to cancel the Note and issue to the Holder thereof (or to its transferee) a new Note of like tenor and amount, registered in the name of the Holder thereof (or its transferee), that does not bear the Restricted Legend, and the Trustee will comply with such instruction.







(d) By its acceptance of any Note bearing the Restricted Legend (or any beneficial interest in such a Note), each Holder thereof and each owner of a beneficial interest therein acknowledges the restrictions on transfer of such Note (and any such beneficial interest) set forth in this Indenture and in the Restricted Legend and agrees that it will transfer such Note (and any such beneficial interest) only in accordance with this Indenture and such legend.







Section 2.02.   Execution and Authentication; Exchange Notes; Additional Notes.







(a) An Officer shall execute the Notes for the Company by facsimile or manual signature in the name and on behalf of the Company. If an Officer whose signature is on a Note no longer holds that office at the time the Note is authenticated, the Note will still be valid.







(b) A Note will not be valid until the Trustee manually signs the certificate of authentication on the Note, with the signature conclusive evidence that the Note has been authenticated under this Indenture.







(c) At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Notes executed by the Company to the Trustee for authentication. The Trustee will authenticate and deliver








(i)  Initial Notes for original issue in the aggregate principal amount not to exceed $250,000,000,











  





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(ii) Initial Additional Notes and Additional Notes from time to time for original issue in aggregate principal amounts specified by the Company, and







(iii) Exchange Notes from time to time for issue in exchange for a like principal amount of Initial Notes or Initial Additional Notes after the following conditions have been met:








(1)  Receipt by the Trustee of an Officers’ Certificate specifying









(A) the amount of Notes to be authenticated and the date on which the Notes are to be authenticated,








(B)  whether the Notes are to be Initial Notes or Additional Notes or Exchange Notes,









(C) in the case of Initial Additional Notes, that the issuance of such Notes does not contravene any provision of Article 4,







(D) whether the Notes are to be issued as one or more Global Notes or Certificated Notes, and








(E)  other information the Company may determine to include.









(2) In the case of Exchange Notes, effectiveness of an Exchange Offer Registration Statement and consummation of the exchange offer thereunder (and receipt by the Trustee of an Officers’ Certificate to that effect). Initial Notes or Initial Additional Notes exchanged for Exchange Notes will be cancelled by the Trustee.







(d) All Notes issued under this Indenture shall be treated as a single class for all purposes under this Indenture, and shall vote together as one class on all matters with respect to the Notes, provided that if any Additional Notes are not fungible with the Notes for United States federal income tax or securities law purposes, such Additional Notes will have a separate CUSIP number.







Section 2.03. Registrar, Paying Agent and Authenticating Agent; Paying Agent to Hold Money in Trust.







(a) The Company may appoint one or more Registrars and one or more Paying Agents, and the Trustee may appoint an Authenticating Agent, in which case each reference in this Indenture to the Trustee in respect of the obligations of the Trustee to be performed by that Agent will be deemed to be references to the Agent. The Company may act as Registrar or (except for purposes of Article 8) Paying Agent. In each case the Company and the Trustee will enter into an appropriate agreement with the Agent implementing the provisions of this Indenture relating to the obligations of the Trustee to be performed by the Agent and the related rights. The Company initially appoints the Trustee as Registrar and Paying Agent.







(b) The Company will require each Paying Agent other than the Trustee to agree in writing that the Paying Agent will hold in trust for the benefit of the Holders or the Trustee all money held by the Paying Agent for the payment of principal of and interest on the Notes and will promptly notify the Trustee of any default by the Company in making any such payment. The Company at any time may require a Paying Agent to pay all money held by it to the Trustee and account for any funds disbursed, and the




 




  





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Trustee may at any time during the continuance of any payment default, upon written request to a Paying Agent, require the Paying Agent to pay all money held by it to the Trustee and to account for any funds disbursed. Upon doing so, the Paying Agent will have no further liability for the money so paid over to the Trustee.







(c) The Company may remove any Registrar or Paying Agent upon written notice to such Registrar or Paying Agent and to the Trustee; provided, however, that no such removal shall become effective until (i) if applicable, acceptance of an appointment by a successor as evidenced by an appropriate agreement entered into by the Company and such successor Registrar or Paying Agent, as the case may be, and delivered to the Trustee or (ii) notification to the Trustee that the Trustee shall serve as Registrar or Paying Agent until the appointment of a successor in accordance with the clause (i) above.







Section 2.04. Replacement Notes. If a mutilated Note is surrendered to the Trustee or if a Holder claims that its Note has been lost, destroyed or wrongfully taken, the Company will issue and the Trustee will authenticate a replacement Note of like tenor and principal amount and bearing a number not contemporaneously outstanding. Every replacement Note is an additional obligation of the Company and entitled to the benefits of this Indenture. If required by the Trustee or the Company, such Holder must furnish an indemnity that is sufficient in the judgment of both the Trustee and the Company to protect the Company and the Trustee from any loss they may suffer if a Note is replaced. The Company may charge the Holder for the expenses of the Company and the Trustee in replacing a Note (including without limitation, attorney’s fees and disbursements in replacing such Note). In case the mutilated, lost, destroyed or wrongfully taken Note has become or is about to become due and payable, the Company in its discretion may pay the Note instead of issuing a replacement Note.







The provisions of this Section 2.04 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, lost, destroyed or wrongfully taken Notes.







Section 2.05.   Outstanding Notes.








(a)  Notes outstanding at any time are all Notes that have been authenticated by the Trustee except for










(1)  Notes cancelled by the Trustee or delivered to it for cancellation;









(2) any Note which has been replaced pursuant to Section 2.04 unless and until the Trustee and the Company receive proof satisfactory to them that the replaced Note is held by a bona fide purchaser; and







(3) on or after the maturity date or any redemption date or date for purchase of the Notes pursuant to an Offer to Purchase, those Notes payable or to be redeemed or purchased on that date for which the Trustee (or Paying Agent, other than the Company or an Affiliate of the Company) holds money sufficient to pay all amounts then due.







(b) A Note does not cease to be outstanding because the Company or one of its Affiliates holds the Note; provided that in determining whether the Holders of the requisite principal amount of the outstanding Notes have given or taken any request, demand, authorization, direction, notice, consent, waiver or other action hereunder, Notes owned by the Company or any Affiliate of the Company will be disregarded and deemed not to be outstanding (it being understood that in determining whether the Trustee is protected in relying upon any such request, demand, authorization, direction, notice, consent, waiver or other action, only Notes which the Trustee knows to be so owned will be so disregarded). Notes so


 




  





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owned which have been pledged in good faith may be regarded as outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Notes and that the pledgee is not the Company or any Affiliate of the Company.







Section 2.06. Temporary Notes. Until definitive Notes are ready for delivery, the Company may prepare and the Trustee will authenticate temporary Notes. Temporary Notes will be substantially in the form of definitive Notes but may have insertions, substitutions, omissions and other variations determined to be appropriate by the Officer executing the temporary Notes, as evidenced by the execution of the temporary Notes. If temporary Notes are issued, the Company will cause definitive Notes to be prepared without unreasonable delay. After the preparation of definitive Notes, the temporary Notes will be exchangeable for definitive Notes upon surrender of the temporary Notes at the office or agency of the Company designated for the purpose pursuant to Section 4.02, without charge to the Holder. Upon surrender for cancellation of any temporary Notes the Company will execute and the Trustee will authenticate and deliver in exchange therefor a like principal amount of definitive Notes of authorized denominations. Until so exchanged, the temporary Notes will be entitled to the same benefits under this Indenture as definitive Notes.







Section 2.07. Cancellation. The Company at any time may deliver to the Trustee for cancellation any Notes previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and may deliver to the Trustee for cancellation any Notes previously authenticated hereunder which the Company has not issued and sold. Any Registrar or the Paying Agent will forward to the Trustee any Notes surrendered to it for transfer, exchange or payment. The Trustee will cancel all Notes surrendered for transfer, exchange, payment or cancellation and dispose of them in accordance with its normal procedures consistent with DTC procedures or the written instructions of the Company. The Company may not issue new Notes to replace Notes it has paid in full or delivered to the Trustee for cancellation.







Section 2.08. CUSIP and ISIN Numbers . The Company in issuing the Notes may use “CUSIP” and “ISIN” numbers, and the Trustee will use CUSIP numbers or ISIN numbers in notices of redemption or exchange or in Offers to Purchase as a convenience to Holders, the notice to state that no representation is made as to the correctness of such numbers either as printed on the Notes or as contained in any notice of redemption or exchange or Offer to Purchase. The Company will promptly notify the Trustee of any change in the CUSIP or ISIN numbers.







Section 2.09.   Registration, Transfer and Exchange.







(a) The Notes will be issued in registered form only, without coupons, and the Company shall cause the Trustee to maintain a register (the “Register”) of the Notes, for registering the record ownership of the Notes by the Holders and transfers and exchanges of the Notes.







(b) (1) Each Global Note will be registered in the name of the Depositary or its nominee and, so long as DTC is serving as the Depositary thereof, will bear the DTC Legend.







(2) Each Global Note will be delivered to the Trustee as custodian for the Depositary. Transfers of a Global Note (but not a beneficial interest therein) will be limited to transfers thereof in whole, but not in part, to the Depositary, its successors or their respective nominees, except (1) as set forth in Section 2.09(b)(4) and (2) transfers of portions thereof in the form of Certificated Notes may be made upon request of an Agent Member (for itself or on behalf of a beneficial owner) by written notice given to the Trustee by or on behalf of the Depositary in accordance with customary procedures of the Depositary and in compliance with this Section and Section 2.10.


 




  





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(3) Agent Members will have no rights under this Indenture with respect to any Global Note held on their behalf by the Depositary, and the Depositary may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner and Holder of such Global Note for all purposes whatsoever. Notwithstanding the foregoing, the Depositary or its nominee may grant proxies and otherwise authorize any Person (including any Agent Member and any Person that holds a beneficial interest in a Global Note through an Agent Member) to take any action which a Holder is entitled to take under this Indenture or the Notes, and nothing herein will 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 security.







(4) If (x) the Depositary notifies the Company that it is unwilling or unable to continue as Depositary for a Global Note and a successor depositary is not appointed by the Company within 90 days of the notice or (y) an Event of Default has occurred and is continuing and the Trustee has received a request from the Depositary, the Trustee will promptly exchange each beneficial interest in the Global Note for one or more Certificated Notes in authorized denominations having an equal aggregate principal amount registered in the name of the owner of such beneficial interest, as identified to the Trustee by the Depositary, and thereupon the Global Note will be deemed canceled. If such Note does not bear the Restricted Legend, then the Certificated Notes issued in exchange therefor will not bear the Restricted Legend. If such Note bears the Restricted Legend, then the Certificated Notes issued in exchange therefor will bear the Restricted Legend; provided that any Holder of any such Certificated Note issued in exchange for a beneficial interest in a Temporary Offshore Global Note will have the right upon presentation to the Trustee of a duly completed Certificate of Beneficial Ownership after the Restricted Period to exchange such Certificated Note for a Certificated Note of like tenor and amount that does not bear the Restricted Legend, registered in the name of such Holder.







(5) 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 Depositary Participants or beneficial owners of interests in any Global Notes) 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.







Neither the Trustee nor any Agent shall have any responsibility for any actions taken or not taken by the Depositary.








(c)  Each Certificated Note will be registered in the name of the holder thereof or its nominee.









(d) A Holder may transfer a Note (or a beneficial interest therein) to another Person or exchange a Note (or a beneficial interest therein) for another Note or Notes of any authorized denomination by presenting to the Trustee a written request therefor stating the name of the proposed transferee or requesting such an exchange, accompanied by any certification, opinion or other document required by Section 2.10. The Trustee will promptly register any transfer or exchange that meets the requirements of this Section by noting the same in the register maintained by the Trustee for the purpose; provided that








(x)  no transfer or exchange will be effective until it is registered in such register and









(y) the Trustee will not be required (i) to issue, register the transfer of or exchange any Note for a period of 15 days before a selection of Notes to be redeemed or purchased pursuant to an Offer to Purchase, (ii) to register the transfer of or exchange any Note so selected for redemption or purchase in whole or in part, except, in the case of a partial redemption or purchase, 


 




  





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that portion of any Note not being redeemed or purchased, or (iii) if a redemption or a purchase pursuant to an Offer to Purchase is to occur after a Regular Record Date but on or before the corresponding Interest Payment Date, to register the transfer of or exchange any Note on or after the Regular Record Date and before the date of redemption or purchase.



 


Prior to the registration of any transfer, the Company, the Trustee and their agents will treat the Person in whose name the Note is registered as the owner and Holder thereof for all purposes (whether or not the Note is overdue), and will not be affected by notice to the contrary.


 


From time to time the Company will execute and the Trustee will authenticate Additional Notes as necessary in order to permit the registration of a transfer or exchange in accordance with this Section.


 


No service charge will be imposed in connection with any transfer or exchange of any Note, but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than a transfer tax or other similar governmental charge payable upon exchange pursuant to subsection (b)(4)).


 


(e) (1)  Global Note to Global Note.  If a beneficial interest in a Global Note is transferred or exchanged for a beneficial interest in another Global Note, the Trustee will (x) record a decrease in the principal amount of the Global Note being transferred or exchanged equal to the principal amount of such transfer or exchange and (y) record a like increase in the principal amount of the other Global Note.  Any beneficial interest in one Global Note that is transferred to a Person who takes delivery in the form of an interest in another Global Note, or exchanged for an interest in another Global Note, will, upon transfer or exchange, cease to be an interest in such Global Note and become an interest in the other Global Note and, accordingly, will thereafter be subject to all transfer and exchange restrictions, if any, and other procedures applicable to beneficial interests in such other Global Note for as long as it remains such an interest.


 


(2) Global Note to Certificated Note.  If a beneficial interest in a Global Note is transferred or exchanged for a Certificated Note, the Trustee will (x) record a decrease in the principal amount of such Global Note equal to the principal amount of such transfer or exchange and (y) deliver one or more new Certificated Notes in authorized denominations having an equal aggregate principal amount to the transferee (in the case of a transfer) or the owner of such beneficial interest (in the case of an exchange), registered in the name of such transferee or owner, as applicable.


 


(3) Certificated Note to Global Note.  If a Certificated Note is transferred or exchanged for a beneficial interest in a Global Note, the Trustee will (x) cancel such Certificated Note, (y) record an increase in the principal amount of such Global Note equal to the principal amount of such transfer or exchange and (z) in the event that such transfer or exchange involves less than the entire principal amount of the canceled Certificated Note, deliver to the Holder thereof one or more new Certificated Notes in authorized denominations having an aggregate principal amount equal to the untransferred or unexchanged portion of the canceled Certificated Note, registered in the name of the Holder thereof.


 


(4) Certificated Note to Certificated Note.  If a Certificated Note is transferred or exchanged for another Certificated Note, the Trustee will (x) cancel the Certificated Note being transferred or exchanged, (y) deliver one or more new Certificated Notes in authorized denominations having an aggregate principal amount equal to the principal amount of such transfer or exchange to the transferee (in the case of a transfer) or the Holder of the canceled Certificated Note (in the case of an exchange), registered in the name of such transferee or Holder, as applicable, and (z) if such transfer or exchange involves less than the entire principal amount of the canceled Certificated Note, deliver to the Holder thereof one or more Certificated Notes in authorized denominations having an aggregate principal amount equal to the






  





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untransferred or unexchanged portion of the canceled Certificated Note, registered in the name of the Holder thereof.







Section 2.10.   Restrictions on Transfer and Exchange.







(a) The transfer or exchange of any Note (or a beneficial interest therein) may only be made in accordance with this Section and Section 2.09 and, in the case of a Global Note (or a beneficial interest therein), the applicable rules and procedures of the Depositary. The Trustee shall refuse to register any requested transfer or exchange that does not comply with the preceding sentence.







(b) Subject to paragraph (c), the transfer or exchange of any Note (or a beneficial interest therein) of the type set forth in column A below for a Note (or a beneficial interest therein) of the type set forth opposite in column B below may only be made in compliance with the certification requirements (if any) described in the clause of this paragraph set forth opposite in column C below.








	
A

	
B

	
C


	
U.S. Global Note

	
U.S. Global Note

	
(1)


	
U.S. Global Note

	
Offshore Global Note

	
(2)


	
U.S. Global Note

	
Certificated Note

	
(3)


	
Offshore Global Note

	
U.S. Global Note

	
(4)


	
Offshore Global Note

	
Offshore Global Note

	
(1)


	
Offshore Global Note

	
Certificated Note

	
(5)


	
Certificated Note

	
U.S. Global Note

	
(4)


	
Certificated Note

	
Offshore Global Note

	
(2)


	
Certificated Note

	
Certificated Note

	
(3)













(1)  No certification is required.









(2) The Person requesting the transfer or exchange must deliver or cause to be delivered to the Trustee a duly completed Regulation S Certificate; provided that if the requested transfer or exchange is made by the Holder of a Certificated Note that does not bear the Restricted Legend, then no certification is required.







(3) The Person requesting the transfer or exchange must deliver or cause to be delivered to the Trustee (x) a duly completed Rule 144A Certificate, (y) a duly completed Regulation S Certificate or (z) a duly completed Institutional Accredited Investor Certificate, and/or an Opinion of Counsel and such other certifications and evidence as the Company may reasonably require in order to determine that the proposed transfer or exchange is being made in compliance with the Securities Act and any applicable securities laws of any state of the United States; provided that if the requested transfer or exchange is made by the Holder of a Certificated Note that does not bear the Restricted Legend, then no certification is required. In the event that (i) the requested transfer or exchange takes place after the Restricted Period and a duly completed Regulation S Certificate is delivered to the Trustee or (ii) a Certificated Note that does not bear the Restricted Legend is surrendered for transfer or exchange, upon transfer or exchange the Trustee will deliver a Certificated Note that does not bear the Restricted Legend.







(4) The Person requesting the transfer or exchange must deliver or cause to be delivered to the Trustee a duly completed Rule 144A Certificate.







(5) Notwithstanding anything to the contrary contained herein, no such exchange is permitted if the requested exchange involves a beneficial interest in a Temporary Offshore Global


 




  





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Note. If the requested transfer involves a beneficial interest in a Temporary Offshore Global Note, the Person requesting the transfer must deliver or cause to be delivered to the Trustee (x) a duly completed Rule 144A Certificate or (y) a duly completed Institutional Accredited Investor Certificate and/or an Opinion of Counsel and such other certifications and evidence as the Company may reasonably require in order to determine that the proposed transfer is being made in compliance with the Securities Act and any applicable securities laws of any state of the United States. If the requested transfer or exchange involves a beneficial interest in a Permanent Offshore Global Note, no certification is required and the Trustee will deliver a Certificated Note that does not bear the Restricted Legend.







(c) No certification is required in connection with any transfer or exchange of any Note (or a beneficial interest therein)







(1) after such Note is eligible for resale, without limit, pursuant to Rule 144 under the Securities Act (or a successor provision); provided that the Company has provided the Trustee with an Officers’ Certificate to that effect, and the Company may require from any Person requesting a transfer or exchange in reliance upon this clause (1) an opinion of counsel and any other reasonable certifications and evidence in order to support such certificate; or







(2) (x) sold pursuant to an effective registration statement, pursuant to the Registration Rights Agreement or otherwise or (y) which is validly tendered for exchange into an Exchange Note pursuant to an Exchange Offer.







Any Certificated Note delivered in reliance upon this paragraph will not bear the Restricted Legend.







Section 2.11.   Temporary Offshore Global Notes.







(a) Each Note originally sold by the Initial Purchasers in reliance upon Regulation S will be evidenced by one or more Offshore Global Notes that bear the Temporary Offshore Global Note Legend.







(b) An owner of a beneficial interest in a Temporary Offshore Global Note (or a Person acting on behalf of such an owner) may provide to the Trustee (and the Trustee will accept) a duly completed Certificate of Beneficial Ownership at any time after the Restricted Period (it being understood that the Trustee will not accept any such certificate during the Restricted Period). Promptly after acceptance of a Certificate of Beneficial Ownership with respect to such a beneficial interest, the Trustee will cause such beneficial interest to be exchanged for an equivalent beneficial interest in a Permanent Offshore Global Note, and will (x) permanently reduce the principal amount of such Temporary Offshore Global Note by the amount of such beneficial interest and (y) increase the principal amount of such Permanent Offshore Global Note by the amount of such beneficial interest.







(c) Notwithstanding paragraph (b), if after the Restricted Period any Initial Purchaser owns a beneficial interest in a Temporary Offshore Global Note, such Initial Purchaser may, upon written request to the Trustee accompanied by a certification as to its status as an Initial Purchaser, exchange such beneficial interest for an equivalent beneficial interest in a Permanent Offshore Global Note, and the Trustee will comply with such request and will (x) permanently reduce the principal amount of such Temporary Offshore Global Note by the amount of such beneficial interest and (y) increase the principal amount of such Permanent Offshore Global Note by the amount of such beneficial interest.







(d) Notwithstanding anything to the contrary contained herein, any owner of a beneficial interest in a Temporary Offshore Global Note shall not be entitled to receive payment of principal or interest 


 




  





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on such beneficial interest or other amounts in respect of such beneficial interest until such beneficial interest is exchanged for an interest in a Permanent Offshore Global Note or transferred for an interest in another Global Note or a Certificated Note.







ARTICLE 3







REDEMPTION; OFFER TO PURCHASE







Section 3.01. Optional Redemption . At any time and from time to time on or after May 15, 2016, the Company may redeem the Notes, in whole or in part, at a redemption price equal to the percentage of principal amount set forth below plus accrued and unpaid interest to the redemption date (subject to the right of holders of record on the relevant record date to receive interest due on the relevant Interest Payment Date).








	
12-month period commencing on

	
Percentage


	
May 15, 2016 

	
103.813%


	May 15, 2017 	
101.906%


	May 15, 2018 and thereafter	
100.000%












In addition, prior to May 15, 2016, the Company may redeem the Notes at its option, in whole at any time or in part from time to time, at a redemption price equal to 100% of the principal amount of Notes redeemed plus the Applicable Premium as of, and accrued and unpaid interest to, the applicable redemption date (subject to the right of holders of record on the relevant record date to receive interest due on the relevant Interest Payment Date).







Section 3.02. Redemption with Proceeds of Equity Offering. At any time and from time to time prior to May 15, 2015, the Company may redeem Notes with the net cash proceeds received by the Company from any Equity Offering at a redemption price equal to 107.625% of the principal amount plus accrued and unpaid interest to the redemption date (subject to the right of holders of record on the relevant record date to receive interest due on the relevant Interest Payment Date), in an aggregate principal amount for all such redemptions not to exceed 35% of the aggregate principal amount of the Notes, including Additional Notes; provided that







(1) in each case the redemption takes place not later than 90 days after the closing of the related Equity Offering, and







(2) not less than 65% of the original aggregate principal amount of the Notes remains outstanding immediately thereafter.







Section 3.03.   Method and Effect of Redemption.







(a) If the Company elects to redeem Notes, it must notify the Trustee of the redemption date and the principal amount of Notes to be redeemed by delivering an Officers’ Certificate at least 45 days before the redemption date (unless a shorter period is satisfactory to the Trustee). If fewer than all of the Notes are being redeemed, the Officers’ Certificate must also specify a record date not less than 15 days after the date of the notice of redemption is given to the Trustee, and the Trustee will select the Notes to be redeemed pro rata, by lot or by any other method the Trustee in its sole discretion deems fair and appropriate, in denominations of $1,000 principal amount and multiples thereof. The Trustee will notify the Company promptly of the Notes or portions of Notes to be called for redemption. Notice of redemption will be mailed by first-class mail by the Company or at the Company’s request, by the Trustee in the name and at the expense of the Company, to Holders whose Notes are to be redeemed at least 30 and not


 




  





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more than 60 days before the date of redemption to each Holder’s 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 satisfaction and discharge of this Indenture.








(b)  The notice of redemption will identify the Notes to be redeemed and will include or state the following:










(1)  the redemption date;










(2)  the redemption price, including the portion thereof representing any accrued interest;










(3)  the place or places where Notes are to be surrendered for redemption;










(4)  Notes called for redemption must be so surrendered in order to collect the redemption price;









(5) on the redemption date the redemption price will become due and payable on Notes called for redemption, and interest on Notes called for redemption will cease to accrue on and after the redemption date;







(6) if any Note is redeemed in part, on and after the redemption date, upon surrender of such Note, new Notes equal in principal amount to the unredeemed portion will be issued; and







(7) if any Note contains a CUSIP or ISIN number, no representation is being made as to the correctness of the CUSIP or ISIN number either as printed on the Notes or as contained in the notice of redemption and that the Holder should rely only on the other identification numbers printed on the Notes.







(c) Once notice of redemption is sent to the Holders, Notes called for redemption become due and payable at the redemption price on the redemption date, and upon surrender of the Notes called for redemption, the Company shall redeem such Notes at the redemption price. Commencing on the redemption date, Notes redeemed will cease to accrue interest. Upon surrender of any Note redeemed in part, the Holder will receive a new Note equal in principal amount to the unredeemed portion of the surrendered Note.







Section 3.04.   Offer to Purchase.







(a) An “Offer to Purchase” means an offer by the Company to purchase Notes as required by this Indenture. An Offer to Purchase must be made by written offer (the “offer”) sent to the Holders. The Company will notify the Trustee at least 15 days (or such shorter period as is acceptable to the Trustee) prior to sending the offer to Holders of its obligation to make an Offer to Purchase, and the offer will be sent by the Company or, at the Company’s request, by the Trustee in the name and at the expense of the Company.








(b)  The offer must include or state the following as to the terms of the Offer to Purchase:










(1)  the provision of this Indenture pursuant to which the Offer to Purchase is being made;













  





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(2) the aggregate principal amount of the outstanding Notes offered to be purchased by the Company pursuant to the Offer to Purchase (including, if less than 100%, the manner by which such amount has been determined pursuant to this Indenture) (the “purchase amount”);








(3)  the purchase price, including the portion thereof representing accrued interest;









(4) an expiration date (the “expiration date”) not less than 30 days or more than 60 days after the date of the offer, and a settlement date for purchase (the “purchase date”) not more than five Business Days after the expiration date;







(5) a Holder may tender all or any portion of its Notes, subject to the requirement that any portion of a Note tendered must be in a minimum of $2,000 in principal amount and any multiple of $1,000 in excess thereof;







(6) the place or places where Notes are to be surrendered for tender pursuant to the Offer to Purchase;







(7) each Holder electing to tender a Note pursuant to the offer will be required to surrender such Note at the place or places specified in the offer prior to the close of business on the expiration date (such Note being, if the Company or the Trustee so requires, duly endorsed or accompanied by a duly executed written instrument of transfer);







(8) interest on any Note not tendered, or tendered but not purchased by the Company pursuant to the Offer to Purchase, will continue to accrue;







(9) on the purchase date the purchase price will become due and payable on each Note accepted for purchase, and interest on Notes purchased will cease to accrue on and after the purchase date;







(10) Holders are entitled to withdraw Notes tendered by giving notice, which must be received by the Company or the Trustee not later than the close of business on the expiration date, setting forth the name of the Holder, the principal amount of the tendered Notes, the certificate number of the tendered Notes and a statement that the Holder is withdrawing all or a portion of the tender;







(11) (i) if Notes in an aggregate principal amount less than or equal to the purchase amount are duly tendered and not withdrawn pursuant to the Offer to Purchase, the Company will purchase all such Notes, and (ii) if the Offer to Purchase is for less than all of the outstanding Notes and Notes in an aggregate principal amount in excess of the purchase amount are tendered and not withdrawn pursuant to the offer, the Company will purchase Notes having an aggregate principal amount equal to the purchase amount on a pro rata basis, with adjustments so that only Notes in multiples of $1,000 principal amount will be purchased;







(12) if any Note is purchased in part, new Notes equal in principal amount to the unpurchased portion of the Note will be issued; and







(13) if any Note contains a CUSIP or ISIN number, no representation is being made as to the correctness of the CUSIP or ISIN number either as printed on the Notes or as contained in the offer and that the Holder should rely only on the other identification numbers printed on the Notes.











  





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(c) Prior to the purchase date, the Company will accept tendered Notes for purchase as required by the Offer to Purchase and deliver to the Trustee all Notes so accepted together with an Officers’ Certificate specifying which Notes have been accepted for purchase. On the purchase date the purchase price will become due and payable on each Note accepted for purchase, and interest on Notes purchased will cease to accrue on and after the purchase date. The Trustee will promptly return to Holders any Notes not accepted for purchase and send to Holders new Notes equal in principal amount to any unpurchased portion of any Notes accepted for purchase in part.







(d) The Company will comply with Rule 14e-1 under the Exchange Act and all other applicable laws in making any Offer to Purchase, and the above procedures will be deemed modified as necessary to permit such compliance.







(e) The Company will timely repay Debt or obtain consents as necessary under, or terminate, any agreements or instruments that would otherwise prohibit an Offer to Purchase required to be made pursuant to this Indenture.







ARTICLE 4







COVENANTS







Section 4.01.   Payment of Notes.







(a) The Company agrees to pay the principal of and interest on the Notes on the dates and in the manner provided in the Notes and this Indenture. Not later than 11:00 A.M. (New York City time) on the due date of any principal of or interest on any Notes, or any redemption or purchase price of the Notes, the Company will deposit with the Trustee (or Paying Agent) money in immediately available funds sufficient to pay such amounts; provided that if the Company or any Affiliate of the Company is acting as Paying Agent, it will, on or before each due date, segregate and hold in a separate trust fund for the benefit of the Holders a sum of money sufficient to pay such amounts until paid to such Holders or otherwise disposed of as provided in this Indenture. In each case the Company will promptly notify the Trustee of its compliance with this paragraph.







(b) An installment of principal or interest will be considered paid on the date due if the Trustee (or Paying Agent, other than the Company or any Affiliate of the Company) holds on that date money designated for and sufficient to pay the installment. If the Company or any Affiliate of the Company acts as Paying Agent, an installment of principal or interest will be considered paid on the due date only if paid to the Holders.







(c) The Company agrees to pay interest on overdue principal, and, to the extent lawful, overdue installments of interest at the same rate per annum borne by the Notes.







(d) Payments in respect of the Notes represented by the Global Notes are to be made by wire transfer of immediately available funds to the accounts specified by the Holders of the Global Notes. With respect to Certificated Notes, the Company will make all payments by wire transfer of immediately available funds to the accounts specified by the Holders thereof or, if no such account is specified, by mailing a check to each Holder’s registered address.







Section 4.02. Maintenance of Office or Agency. The Company will maintain in the Borough of Manhattan, the City of New York, an office or agency where Notes may be surrendered for registration of transfer or exchange or for presentation for payment and where notices and demands to or upon the Company in respect of the Notes and this Indenture may be served. The Company hereby initially designates 




 




  





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the Corporate Trust Office of the Trustee as such office of the Company. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company fails to maintain any such required office or agency or fails to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served to the Trustee.







The Company may also from time to time designate one or more other offices or agencies where the Notes may be surrendered or presented for any of such purposes and may from time to time rescind such designations. The Company 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.







Section 4.03. Existence. The Company will do or cause to be done all things necessary to preserve and keep in full force and effect its existence and the existence of each of its Restricted Subsidiaries in accordance with their respective organizational documents (as the same may be amended from time to time), and the material rights, licenses and franchises of the Company and each Restricted Subsidiary necessary in the normal amount of its business; provided that the Company is not required to preserve any such right, license or franchise, or the existence of any Restricted Subsidiary, if the maintenance or preservation thereof is no longer desirable in the conduct of the business of the Company and its Restricted Subsidiaries taken as a whole or would not have a material adverse effect on the Company and its Restricted Subsidiaries taken as a whole; and provided further that this Section does not prohibit any transaction otherwise permitted by Section 4.10 or Article 5.







Section 4.04.   Limitation on Debt.







(a) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Debt or Disqualified Stock, and will not permit any of its Restricted Subsidiaries that are not Guarantors to Incur any Preferred Stock (other than Disqualified Stock or Preferred Stock of Restricted Subsidiaries held by the Company or a Restricted Subsidiary, so long as it is so held); provided that the Company or any Restricted Subsidiary may Incur Debt, Disqualified Stock or Preferred Stock if, on the date of the Incurrence, after giving effect to the Incurrence and the receipt and application of the proceeds therefrom, the Fixed Charge Coverage Ratio is not less than 2.0 to 1.0 (the “Fixed Charge Coverage Test”); provided, further, that the maximum aggregate principal amount of Debt, Disqualified Stock or Preferred Stock that non-Guarantors may incur under this paragraph (a) is $25.0 million outstanding at any time.







(b) Notwithstanding the foregoing, the Company and, to the extent provided below, any Restricted Subsidiary may Incur the following (“Permitted Debt”):







(1) Debt (“Permitted Bank Debt”) of the Company or any Restricted Subsidiary pursuant to Credit Facilities (and, without duplication, Guarantees of such Debt by the Company or any Restricted Subsidiary), including the amount of any outstanding revolving credit loans; provided that the aggregate principal amount at any time outstanding does not exceed the greater of (x) $200.0 million and (y) an amount such that, on a pro forma basis after giving effect to the Incurrence of such Debt (and application of the net proceeds therefrom), the Secured Debt Ratio would be no greater than 2.5 to 1.0, less (i) any amount of such Debt permanently repaid as provided under Section 4.10 and (ii) the outstanding principal amount of any Permitted Receivables Financing;







(2) Debt of the Company or any Restricted Subsidiary to the Company or any Restricted Subsidiary so long as such Debt continues to be owed to the Company or a Restricted Subsidiary and which, if the obligor is the Company or a Guarantor and such Debt is owed to a non-Guarantor, is subordinated in right of payment to the Notes;


 




  





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(3) Debt of the Company pursuant to the Notes (other than Additional Notes) and Debt of any Guarantor pursuant to a Note Guaranty of the Notes (including Additional Notes) and Exchange Notes (and Note Guarantees) in respect thereof;







(4) Debt, Disqualified Stock or Preferred Stock (“Permitted Refinancing Debt”) of the Company or any Restricted Subsidiary constituting an extension or renewal of, replacement of, or substitution for, or issued in exchange for, or the net proceeds of which are used (or will be used within 90 days) to repay, redeem, repurchase, refinance or refund, including by way of defeasance (all of the above, for purposes of this clause, “refinance”) then outstanding Debt, Disqualified Stock or Preferred Stock in an amount not to exceed the principal amount or liquidation value of the Debt, Disqualified Stock or Preferred Stock so refinanced, plus premiums, fees and expenses; provided that







(A) in case Debt to be refinanced is subordinated in right of payment to the Notes, the new Debt, by its terms or by the terms of any agreement or instrument pursuant to which it is outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Debt to be refinanced is subordinated in right of payment to the Notes;







(B) the new Debt, Disqualified Stock or Preferred Stock does not have a Stated Maturity prior to the earlier of (i) the Stated Maturity of the Debt, Disqualified Stock or Preferred Stock to be refinanced and (ii) one year after the Stated Maturity of the Notes, and the new Debt, Disqualified Stock or Preferred Stock has an Average Life at the time of Incurrence that is not less than the shorter of (x) the remaining Average Life of the Debt, Disqualified Stock or Preferred Stock being refinanced and (y) the Average Life that would result if all payments of principal on the Debt, Disqualified Stock and Preferred Stock being refinanced that were due on or after the date that is one year following the last Stated Maturity of the Notes then outstanding were instead due on such date;







(C) in no event may Debt, Disqualified Stock or Preferred Stock of the Company or any Guarantor be refinanced pursuant to this clause by means of any Debt of any Restricted Subsidiary that is not a Guarantor;







(D) Debt, Disqualified Stock or Preferred Stock Incurred pursuant to clauses (1), (2), (5), (6) and (10) through (16) may not be refinanced pursuant to this clause (4); and








(E)  no Debt may be issued to refinance Disqualified Stock or Preferred Stock;









(5) Hedging Agreements of the Company or any Restricted Subsidiary in the ordinary course of business and not entered into for speculation;







(6) Debt of the Company or any Restricted Subsidiary with respect to (A) letters of credit and bankers’ acceptances issued in the ordinary course of business and not supporting other Debt, including letters of credit supporting performance, surety or appeal bonds, workers’ compensation claims, health, disability or other benefits to employees or former employees or their families or property, casualty or liability insurance or self-insurance, and letters of credit in connection with the maintenance of, or pursuant to the requirements of, environmental or other permits or licenses from governmental authorities, or other Debt with respect to reimbursement type


 




  





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obligations regarding workers’ compensation claims; (B) indemnification, adjustment of purchase price, earn-out or obligations incurred in connection with the acquisition or disposition of any business or assets; provided that such Debt is not reflected on the balance sheet of the Company or any of its Restricted Subsidiaries and (C) Guarantees of Debt of (i) suppliers, licensees, franchisees or customers in the ordinary course of business or (ii) joint ventures, in an aggregate amount at any time outstanding under this clause (C) not to exceed the greater of $75.0 million and 4.0% of Total Assets;







(7) Acquired Debt; provided, that after giving effect to the Incurrence thereof, (i) the Company could Incur at least $1.00 of Debt under the Fixed Charge Coverage Test or (ii) the Fixed Charge Coverage Ratio would be greater than the Fixed Charge Coverage Ratio immediately prior to such Incurrence;







(8) Debt of the Company or any Restricted Subsidiary outstanding on the Issue Date (and, for purposes of clause (4) (D), not otherwise constituting Permitted Debt);







(9) Debt, Disqualified Stock or Preferred Stock of the Company or any Restricted Subsidiary, which may include Capital Leases, Incurred on or after the Issue Date no later than 365 days after the date of purchase or completion of construction, improvement, repair or replacement of property (real or personal) or equipment (whether through the direct purchase of assets or the Capital Stock of any Person owning such assets) for the purpose of financing all or any part of the purchase price or cost thereof and any related taxes or transaction costs; provided that the principal amount of any Debt Incurred pursuant to this clause may not exceed at any time outstanding (a) the greater of $50.0 million and 4.0% of Total Assets (measured at the time of Incurrence of any such Debt) less (b) the aggregate outstanding amount of Permitted Refinancing Debt Incurred to refinance Debt Incurred pursuant to this clause;







(10) Debt of Foreign Restricted Subsidiaries Incurred on or after the Issue Date in an aggregate principal amount not to exceed $25.0 million at any one time outstanding;







(11) Debt of the Company or any Guarantor consisting of co-issuances or Guarantees of Debt of the Company or any Restricted Subsidiary Incurred under any other clause of this Section 4.04;







(12) Debt, Disqualified Stock or Preferred Stock of the Company or any Restricted Subsidiary Incurred on or after the Issue Date not otherwise permitted in an aggregate principal amount at any time outstanding not to exceed $40.0 million;







(13) Debt arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided that such Debt is extinguished within five Business Days of Incurrence;







(14) Debt of the Company or any Restricted Subsidiary consisting of (A) the financing of insurance premiums or (B) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;







(15) Debt of the Company or any Restricted Subsidiary supported by a letter of credit or bank guarantee issued pursuant to Credit Facilities (which letter of credit or bank guarantee is Incurred pursuant to clause (1) above) in a principal amount not in excess of the stated amount of such letter of credit;











  





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(16) any Permitted Receivables Financing in an aggregate principal amount at any time outstanding not to exceed (A) the maximum amount of Debt permitted to be Incurred under clause (1) at such time, less (B) the amount of Debt incurred under clause (1) outstanding at such time; and







(17) Debt issued by the Company or a Restricted Subsidiary to current or former officers, directors or employees thereof or any direct or indirect parent thereof (or their spouses or former spouses or estates or beneficiaries under their estates) to finance the purchase or redemption of Equity Interests of any direct or indirect parent of the Company to the extent permitted by Section 4.05(b)(7).








(c)  For purposes of determining compliance with this covenant:









(1) in the event that an item of Debt, Disqualified Stock or Preferred Stock (or any portion thereof) meets the criteria of more than one of the categories of Permitted Debt or is entitled to be Incurred pursuant to paragraph (a) of this covenant, the Company, in its sole discretion, will classify and may reclassify (based on circumstances at the time of any such reclassification) such item of Debt, Disqualified Stock or Preferred Stock (or any portion thereof) and will only be required to include the amount and type of such Debt, Disqualified Stock or Preferred Stock in one of the above clauses; and







(2) at the time of Incurrence, classification or reclassification, the Company will be entitled to divide, classify and reclassify an item of Debt in more than one of the types of Debt described in paragraphs (a) and (b) above;







provided that all Debt outstanding under the Credit Agreement on the Issue Date will be treated as Incurred on the Issue Date under clause (1) of paragraph (b).







(d) Neither the Company nor any Guarantor may Incur Debt that is subordinate in right of payment to any Debt of the Company or the Guarantor unless such Debt is subordinated in right of payment to, the Notes or the relevant Note Guaranty. This does not apply to distinctions between categories of Debt that exist by reason of any Liens, any customary provisions of any intercreditor arrangements related to subordination of any such Liens or Guarantees securing or in favor of some but not all of such Debt.







Section 4.05.   Limitation on Restricted Payments.







(a) The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly (the payments and other actions described in the following clauses being collectively “Restricted Payments”):







(i) declare or pay any dividend or make any distribution on its Equity Interests (other than dividends or distributions paid in the Company’s Qualified Equity Interests) held by Persons other than the Company or any of its Restricted Subsidiaries;







(ii) purchase, redeem, defease or otherwise acquire or retire for value any Equity Interests of the Company or any direct or indirect parent of the Company held by Persons other than the Company or any of its Restricted Subsidiaries;







(iii) repay, redeem, repurchase, defease or otherwise acquire or retire for value, or make any payment on or with respect to, any Subordinated Debt except a payment of interest or




 




  





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principal at Stated Maturity (other than the payment, redemption, repurchase, defeasance, acquisition or retirement of (A) Subordinated Debt in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date of such payment, redemption, repurchase, defeasance, acquisition or retirement and (B) Debt permitted under Section 4.04(b)(2)); or







(iv)make any Investment other than a Permitted Investment;







unless, after giving effect to the proposed Restricted Payment:








(1)  no Default has occurred and is continuing,










(2)  the Company could Incur at least $1.00 of Debt under the Fixed Charge Coverage Test, and









(3) the aggregate amount expended for all Restricted Payments made on or after the Issue Date would not, subject to paragraph (c), exceed the sum of







(A) 50% of the aggregate amount of the Consolidated Net Income (or, if the Consolidated Net Income is a loss, minus 100% of the amount of the loss) accrued on a cumulative basis during the period, taken as one accounting period, beginning on February 29, 2012 and ending on the last day of the Company’s most recently completed fiscal quarter for which financial statements have been provided (or if not timely provided, required to be provided) pursuant to this Indenture, plus







(B) subject to paragraph (c), the aggregate Net Cash Proceeds received by the Company (other than from a Subsidiary) after the Issue Date from (i) the issuance and sale of Qualified Equity Interests, including by way of issuance of Disqualified Equity Interests or Debt to the extent such Disqualified Equity Interest or Debt has been converted into Qualified Equity Interests of the Company or any direct or indirect parent of the Company (and contributed to the Company as a contribution to its common equity), and (ii) other contributions to the common equity capital of the Company, other than Excluded Contributions, plus








(C)  an amount equal to the sum, for all Unrestricted Subsidiaries, of the following:









(x) the cash return, and the fair market value of assets or property received, after the Issue Date, on Investments in an Unrestricted Subsidiary made after the Issue Date pursuant to this paragraph (a) as a result of any sale, repayment, redemption, liquidating distribution or other realization (not included in Consolidated Net Income), plus







(y) all distributions or dividends to the Company or a Restricted Subsidiary from Unrestricted Subsidiaries (provided that such distributions or dividends shall be excluded in calculating Consolidated Net Income for purposes of clause (3)(A)), plus







(z) the portion (proportionate to the Company’s equity interest in such Subsidiary) of the fair market value of the assets less liabilities of an Unrestricted Subsidiary at the time such Unrestricted Subsidiary is designated a Restricted 


 




  





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Subsidiary (other than to the extent the Investment in such Unrestricted Subsidiary constitutes a Permitted Investment), in each case not to exceed in any case the amount of Investments previously made by the Company or any Restricted Subsidiary, plus







(D) the cash return, and the fair market value of property received, after the Issue Date, on any other Investment (other than to the extent the Investment constitutes a Permitted Investment) made after the Issue Date pursuant to this paragraph (a), as a result of any sale, repayment, redemption, liquidating distribution or other realization (not included in Consolidated Net Income), not to exceed in any case the amount of such Investments previously made by the Company or any Restricted Subsidiary.







The amount expended in any Restricted Payment, if other than in cash, will be deemed to be the fair market value of the relevant non-cash assets or property, as determined in good faith by the Board of Directors, whose determination will be conclusive and evidenced by a Board Resolution.








(b)  The foregoing will not prohibit:









(1) the payment of any dividend within 60 days after the date of declaration thereof if, at the date of declaration, such payment would comply with paragraph (a);







(2) dividends or distributions by a Restricted Subsidiary payable, on a pro rata basis or on a basis more favorable to the Company, to all holders of any class of Capital Stock of such Restricted Subsidiary a majority of which is held, directly or indirectly through Restricted Subsidiaries, by the Company;







(3) the repayment, redemption, repurchase, defeasance or other acquisition or retirement for value of Subordinated Debt with the proceeds of, or in exchange for, Permitted Refinancing Debt;







(4) the purchase, redemption or other acquisition or retirement for value of Equity Interests of the Company, any direct or indirect parent of the Company or any Restricted Subsidiary in exchange for, or out of the proceeds of, (i) an offering (occurring within 60 days of such purchase, redemption or other acquisition or retirement for value) of Qualified Equity Interests of the Company or of Qualified Equity Interests of any direct or indirect parent of Company to the extent contributed to the common equity of the Company or (ii) a contribution to the common equity capital of the Company;







(5) the repayment, redemption, repurchase, defeasance or other acquisition or retirement of Subordinated Debt of the Company or any Guarantor in exchange for, or out of the proceeds of, (i) an offering (occurring within 60 days of such purchase, redemption or other acquisition or retirement for value) of Qualified Equity Interests of the Company or of Qualified Equity Interests of any direct or indirect parent of Company to the extent contributed to the common equity of the Company or (ii) a contribution to the common equity capital of the Company;







(6) any Investment made in exchange for, or out of the net cash proceeds of, a substantially concurrent offering of (i) Qualified Equity Interests of the Company or of Qualified Equity Interests of any direct or indirect parent of Company to the extent contributed to the common equity of the Company or (ii) a contribution to the common equity capital of the Company;











  





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(7) amounts paid to any direct or indirect parent of Company for the purchase, redemption or other acquisition or retirement for value of Equity Interests of such parent held by officers, directors or employees or former officers, directors or employees of the Company, any Restricted Subsidiary or any such parent (or their spouses or former spouses or estates or beneficiaries under their estates), upon death, disability, retirement, severance or termination of employment or pursuant to any agreement under which the Equity Interests were issued; provided that the aggregate cash consideration paid therefor does not exceed an amount equal to (A) $5.0 million in any twelve-month period (with unused amounts being available to be used in subsequent periods) plus (B) the amount of any net cash proceeds received by or contributed to the Company from the issuance and sale after the Issue Date of Qualified Equity Interests of the Company or any direct or indirect parent of Company to its officers, directors or employees that have not previously been applied to the payment of Restricted Payments pursuant to this covenant or considered an Excluded Contribution, plus (C) the net cash proceeds of any “key-man” life insurance policies that have not been applied to the payment of Restricted Payments pursuant to this Section 4.5  or considered an Excluded Contribution;







(8) the repurchase, redemption or other acquisition or retirement for value of any Subordinated Debt at a purchase price not greater than 101% of the principal amount thereof pursuant to provisions similar to those described in Sections 4.09 and 4.10; provided that, in each case, prior to the repurchase the Company has made an Offer to Purchase and repurchased all Notes issued under this Indenture that were validly tendered for payment in connection with such Offer to Purchase;







(9) (a) payments to any direct or indirect parent of Company of (i) amounts relating to taxes, in an amount not to exceed the amount of taxes the Company and its Subsidiaries would pay on a stand-alone basis, plus (ii) amounts necessary to pay expenses required to maintain its corporate existence, customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, its officers and employees and corporate overhead expenses, plus (iii) amounts necessary to make interest and principal payments on Debt of any direct or indirect parent of the Company the proceeds of which have been contributed to the Company or any Restricted Subsidiary and that has been Guaranteed by, or is otherwise considered Debt of, the Company Incurred in accordance with Section 4.04, plus (iv) amounts necessary to pay customary and reasonable costs and expenses of financings, acquisitions or offerings of securities of any direct or indirect parent of the Company that are not consummated or (b) any “deemed dividend” resulting under the tax laws from, or in connection with, the filing of a consolidated or combined tax return by such direct or indirect parent of the Company (and not involving any cash distribution from the Company except as permitted by clause (a)(i) above);







(10) repurchases of Equity Interests deemed to occur upon the exercise of stock options if the Equity Interests represent all or a portion of the exercise price thereof (or related withholding taxes), and Restricted Payments by the Company to allow the payment of cash in lieu of the issuance of fractional shares upon the exercise of options or warrants or upon the conversion or exchange of Capital Stock of the Company;








(11)  Restricted Payments that are made with Excluded Contributions;









(12) the declaration and payment of dividends to holders of any class or series of Disqualified Stock of the Company or any Restricted Subsidiary or Preferred Stock of any Restricted Subsidiary issued in accordance with Section 4.04 to the extent such dividends are included in the definition of Fixed Charges and payment of any redemption price or liquidation value of any such Disqualified Stock or Preferred Stock when due in accordance with its terms;


 




  





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(13)  [Reserved];









(14) other Restricted Payments in an aggregate amount not to exceed $100.0 million; provided that with respect to any such Restricted Payments made pursuant to this clause (14) in excess of $15.0 million, at the time of any such Restricted Payment and after giving effect thereto on a pro forma basis the Leverage Ratio is not greater than 4.0 to 1.0; and








(15)  the Share Repurchase;









provided that, in the case of clauses (7), (9)(iii) and (9)(iv) no Default has occurred and is continuing or would occur as a result thereof.







(c) Proceeds of the issuance of Qualified Equity Interests will be included under clause (3) of paragraph (a) only to the extent they are not applied as described in clause (4), (5), (6) or (7) of paragraph (b). Restricted Payments permitted pursuant to paragraph (b) (other than Restricted Payments permitted by clauses (1), (7) and (8) of paragraph (b)) will not be included in making the calculations under clause



(3)  of paragraph (a).









(d) For purposes of determining compliance with this Section 4.05, in the event that a proposed Restricted Payment (or portion thereof) meets the criteria of more than one of the categories of Restricted Payments described in clauses (1) through (15) of paragraph (b), or is entitled to be Incurred pursuant to Section 4.05(a), the Company will be entitled to classify or re-classify such Restricted Payment (or portion thereof) in any manner that complies with this covenant and such Restricted Payment will be treated as having been made pursuant to only such clause or clauses or Section 4.05(a); provided that any re-classification of any Restricted Payment made pursuant to Section 4.05(b)(14) shall be disregarded for purposes of determining if the amount of Restricted Payments made pursuant to Section 4.05(b)(14) is in excess of $15.0 million.







Section 4.06. Limitation on Liens. The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, incur or permit to exist any Lien to secure Debt on any of its properties or assets, whether owned at the Issue Date or thereafter acquired, other than Permitted Liens, without effectively providing that the Notes are secured equally and ratably with (or, if the obligation to be secured by the Lien is subordinated in right of payment to the Notes or any Note Guaranty, senior in priority to such Liens) the obligations so secured for so long as such obligations are so secured.







Section 4.07. Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries.







(a) Except as provided in paragraph (b), the Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to







(1) pay dividends or make any other distributions on any Equity Interests of the Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,








(2)  pay any Debt or other obligation owed to the Company or any other Restricted Subsidiary,










(3)  make loans or advances to the Company or any other Restricted Subsidiary, or
















  





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(4)transfer any of its property or assets to the Company or any other Restricted Subsidiary.








(b)  The provisions of paragraph (a) do not apply to any encumbrances or restrictions









(1) existing on the Issue Date in the Credit Agreement, this Indenture or any other agreements in effect on the Issue Date, and any amendments, modifications, extensions, renewals, replacements or refinancings of any of the foregoing; provided that the encumbrances and restrictions in the amendment, modification, extension, renewal, replacement or refinancing are, in the good faith judgment of the Company, no more restrictive in any material respect with respect to such encumbrances and other restrictions taken as a whole than the encumbrances or restrictions being extended, renewed, replaced or refinanced;








(2)  existing under or by reason of applicable law, rule, regulation or order;










(3)  existing









(A) with respect to any Person, or to the property or assets of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary, or







(B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary,







which encumbrances or restrictions (i) are not applicable to any other Person or the property or assets of any other Person and (ii) were not put in place in anticipation of such event, and any extensions, renewals, replacements or refinancings of any of the foregoing; provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, in the good faith judgment of the Company, no more restrictive in any material respect with respect to such encumbrances and other restrictions taken as a whole than the encumbrances or restrictions being extended, renewed, replaced or refinanced;







(4) of the type described in clause (a)(4) arising or agreed to in the ordinary course of business (i) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease or license or (ii) by virtue of any Lien on, or agreement to transfer, option or similar right (including any asset sale or stock sale agreement) with respect to, any property or assets of the Company or any Restricted Subsidiary;







(5) with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, the Restricted Subsidiary that is permitted by Section 4.10;








(6)  required pursuant to this Indenture;









(7) existing pursuant to customary provisions in partnership agreements, limited liability company organizational governance documents, joint venture and other similar agreements entered into in the ordinary course of business that restrict the transfer of ownership interests in such partnership, limited liability company, joint venture or similar Person;







(8) consisting of restrictions on cash or other deposits or net worth imposed by customers, suppliers or landlords under contracts entered into in the ordinary course of business;


 




  





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(9) existing pursuant to any instrument governing any Debt or Capital Stock of a Person that is an Unrestricted Subsidiary as in effect on the date that such Person becomes a Restricted Subsidiary, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person who became a Restricted Subsidiary, or the property or assets of the Person who became a Restricted Subsidiary; provided that, in the case of Debt, the incurrence of such Debt as a result of such Person becoming a Restricted Subsidiary was permitted by the terms of this Indenture;








(10)  consisting of customary restrictions pursuant to any Permitted Receivables Financing;









(11) existing pursuant to provisions in instruments governing other Debt, Disqualified Stock or Preferred Stock of Restricted Subsidiaries permitted to be Incurred after the Issue Date pursuant to Section 4.04; provided that (i) such provisions are customary for instruments of such type (as determined in good faith by the Company) and (ii) the Company determines in good faith that such restrictions will not materially adversely impact the ability of the Company to make required principal and interest payments on the Notes;







(12) existing pursuant to purchase money obligations for property acquired in the ordinary course of business and Capital Lease obligations that impose restrictions of the nature discussed in Section 4.07(a)(4) on the property so acquired;







(13) contained in any trading, netting, operating, construction, service, supply, purchase or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject of such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of any other Restricted Subsidiary; and







(14) of the type referred to in paragraph (a) above imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (1) through (13) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive in any material respect with respect to such encumbrances and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.







For purposes of determining compliance with this covenant, (i) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock and (ii) the subordination of loans or advances made to the Company or a Restricted Subsidiary of the Company to other Debt Incurred by the Company or any such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances.







Section 4.08. Guarantees by Restricted Subsidiaries. If and for so long as any Domestic Restricted Subsidiary Guarantees or is a borrower under the Credit Agreement or any capital markets debt securities, such Domestic Restricted Subsidiary shall provide a Note Guaranty, and, if the guaranteed Debt of the Company is Subordinated Debt, the Guarantee of such guaranteed Debt must be subordinated


 




  





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in right of payment to the Note Guaranty to at least the extent that the guaranteed Debt is subordinated to the Notes.







A Restricted Subsidiary required to provide a Note Guaranty shall execute a supplemental indenture in the form of Exhibit B, and deliver an Opinion of Counsel to the Trustee to the effect that the supplemental indenture has been duly authorized, executed and delivered by the Restricted Subsidiary and constitutes a valid and binding obligation of the Restricted Subsidiary, enforceable against the Restricted Subsidiary in accordance with its terms (subject to customary exceptions).







Section 4.09. Repurchase of Notes Upon a Change of Control. Not later than 30 days folloing a Change of Control, the Company will make an Offer to Purchase all outstanding Notes at a purchase price equal to 101% of the principal amount plus accrued and unpaid interest to the date of purchase. The Company’s obligation to make an Offer to Purchase in connection with a Change of Control will be satisfied if a third party makes the Offer to Purchase in the manner and at the times and otherwise in compliance with the requirements applicable to an Offer to Purchase made by the Company and purchases all Notes properly tendered and not withdrawn under the Offer to Purchase.







Section 4.10.   Limitation on Asset Sales.







(a) The Company will not, and will not permit any Restricted Subsidiary to, make any Asset Sale unless the following conditions are met:








(1)  The Asset Sale is for fair market value.









(2) At least 75% of the consideration consists of cash or Cash Equivalents received at closing. (For purposes of this clause (2) only, (A) the assumption by the purchaser of Debt or other obligations (other than Subordinated Debt) of the Company or a Restricted Subsidiary not incurred in contemplation of such Asset Sale pursuant to a customary novation agreement, (B) instruments or securities received from the purchaser that are promptly, but in any event within 365 days of the closing, converted by the Company to cash, to the extent of the cash actually so received, (C) any Designated Non-cash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (C) that is at that time outstanding, not to exceed the greater of $25.0 million or 2% of Total Assets (with the fair market value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value), (D) the fair market value of any assets (including current assets) received by the Company or any Restricted Subsidiary to be used by it in the Permitted Business and (E) the fair market value of any Equity Interests in a Person that is a Restricted Subsidiary or in a Person engaged in a Permitted Business that shall become a Restricted Subsidiary immediately upon the acquisition of such Person by the Company, shall be considered cash received or Cash Equivalents at closing).







(3) Within 365 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Net Cash Proceeds may be used







(A) to permanently repay secured Debt of the Company or a Guarantor or any Debt of a Restricted Subsidiary that is not a Guarantor (and in the case of a revolving credit, permanently reduce the commitment thereunder by such amount), in each case owing to a Person other than the Company or any Restricted Subsidiary,











  





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(B) to reduce or repay other Debt (other than Subordinated Debt) (and to correspondingly reduce commitments with respect thereto); provided that, to the extent the Company reduces Obligations under such Debt, the Company shall equally and ratably reduce Obligations under the notes as provided in Section 3.01, through open-market purchases (to the extent such purchases are at or above 100% of the principal amount thereof) or by making an offer (in accordance with the procedures set forth below for an Asset Sale Offer to Purchase) to all holders to purchase their Notes at 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of Notes that would otherwise be prepaid,







(C) to acquire all or substantially all of the assets of a Permitted Business, or a majority of the Voting Stock of another Person that thereupon becomes a Restricted Subsidiary engaged in a Permitted Business, or to make capital expenditures or otherwise acquire assets (including current assets) that are to be used in a Permitted Business,







(D) to enter into a binding commitment to take any of the actions described in the foregoing subclauses (A), (B) and (C), and take such action within 180 days after the date of such commitment, or








(E)  any combination of the foregoing subclauses (A) through (D).









Following the entering into of a binding agreement with respect to an Asset Sale and prior to the consummation thereof, cash or Cash Equivalents (whether or not actual Net Cash Proceeds of such Asset Sale) used for the purposes described in subclauses (A), (B) and (C) of this clause (3) that are designated as uses in accordance with this clause (3), and not previously or subsequently so designated in respect of any other Asset Sale, shall be deemed to be Net Cash Proceeds applied in accordance with this clause (3).








(4)  The Net Cash Proceeds of an Asset Sale not applied pursuant to clause (3) within 365 days of the Asset Sale constitute “Excess Proceeds.” Excess Proceeds of less than $17.5 million will be carried forward and accumulated; provided that until the aggregate amount of Excess Proceeds equals or exceeds $17.5 million, all or any portion of such Excess Proceeds may be used or invested in the manner described in clause (3) above and such invested amount shall no longer be considered Excess Proceeds. When accumulated Excess Proceeds equals or exceeds $17.5 million, the Company must, within 30 days, make an Offer to Purchase to all holders of Notes issued under this Indenture and, if required by the terms of any Debt that is pari passu in right of payment with the Notes (“Pari Passu Indebtedness”), to the holders of such Pari Passu Indebtedness and to purchase the maximum principal amount of Notes and such Pari Passu Indebtedness to which the Offer to Purchase applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to 100% of the principal amount of the Notes plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in this Indenture and, with respect to the Notes, in minimum denominations of $2,000 and in integral multiples of $1,000 in excess thereof.









If the Offer to Purchase is for less than all of the outstanding Notes and such Pari Passu Indebtedness and Notes and Pari Passu Indebtedness in an aggregate principal amount in excess of the purchase amount are tendered and not withdrawn pursuant to the offer, the Company will purchase Notes and such Pari Passu Indebtedness having an aggregate principal amount equal to the purchase amount on a pro rata basis, with adjustments so that only Notes in multiples of $1,000 principal amount will be purchased. The Company may satisfy its obligation to make an Offer to Purchase with respect to any Net Cash Proceeds of any Asset Sale by making an Offer to Purchase 


 




  





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with respect to such Net Cash Proceeds prior to the expiration of the 365 day period. Upon completion of the Offer to Purchase, Excess Proceeds will be reset at zero, and any Excess Proceeds remaining after consummation of the Offer to Purchase may be used for any purpose not otherwise prohibited by this Indenture.







Section 4.11.   Limitation on Transactions with Affiliates.







(a) The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, enter into, renew or extend any transaction or arrangement including the purchase, sale, lease or exchange of property or assets, or the rendering of any service with any Affiliate of the Company or any Restricted Subsidiary (a “Related Party Transaction”), involving aggregate payment or consideration in excess of $15.0 million, except upon terms no less favorable to the Company or the Restricted Subsidiary than could be obtained in a comparable arm’s-length transaction with a Person that is not an Affiliate of the Company.







(b) Any Related Party Transaction or series of Related Party Transactions with an aggregate value in excess of $25.0 million must first be approved by a majority of the Board of Directors who are disinterested in the subject matter of the transaction pursuant to a Board Resolution.








(c)  The foregoing paragraphs do not apply to










(1)  any transaction between or among the Company and/or any of its Restricted Subsidiaries;









(2) the payment of reasonable and customary fees and reimbursement of expenses paid to, and indemnity provided on behalf of, officers, members of the board of directors or managers, employees or consultants of the Company or any Restricted Subsidiary;








(3)  any Restricted Payments made in accordance with Section 4.05 and Permitted Investments;









(4) transactions or payments, including grants of securities, stock options and similar rights, pursuant to any employee, officer or director compensation or benefit plans or arrangements entered into in the ordinary course of business or approved by the Company’s Board of Directors in good faith;







(5) transactions pursuant to any contract or agreement in effect on the Issue Date, as amended, modified or replaced from time to time (so long as any such amendment is not disadvantageous in any material respect to the holders of Notes when taken as a whole as compared to the applicable agreement as in effect on the Issue Date);







(6) any transaction in which the Company or any Restricted Subsidiary, as the case may be, obtains a favorable written opinion from a nationally recognized investment banking firm as to the fairness of the transaction to the Company and its Restricted Subsidiaries from a financial point of view;







(7) the entering into of a customary agreement providing registration rights to the direct or indirect shareholders of the Company and the performance of such agreements;







(8) the issuance of Equity Interests (other than Disqualified Stock) of the Company to any Person or any transaction with an Affiliate where the only consideration paid by the Company 




 




  





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or any Restricted Subsidiary is Equity Interests (other than Disqualified Stock) or any contribution to the capital of the Company;







(9) the entering into of any tax sharing agreement or arrangement or any other transactions undertaken in good faith that is consistent with Section 4.05(b)(9)(a)(i);








(10)  pledges of Equity Interests of Unrestricted Subsidiaries;









(11) any employment agreements entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business;







(12) (A) transactions with customers, clients, suppliers or purchasers or sellers of goods or services, or transactions otherwise relating to the purchase or sale of goods or services, in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture, (B) transactions with joint ventures or Unrestricted Subsidiaries entered into in the ordinary course of business and consistent with past practice or industry norm or (C) any management services or support agreement entered into on terms consistent with past practice and approved by a majority of the Company’s Board of Directors in good faith;







(13) payments or loans (or cancellation of loans) to officers, directors, employees or consultants which are approved by a majority of the Company’s Board of Directors in good faith;







(14) sales of Accounts Receivable, or participations therein, or any related transaction, in connection with any Permitted Receivables Financing;







(15) transactions permitted by, and complying with, the provisions of Article 5, or any merger, consolidation or reorganization of the Company with an Affiliate, solely for the purposes of (a) reorganizing to facilitate an initial public offering of securities of the Company or any direct or indirect parent company, (b) forming a holding company or (c) reincorporating the Company in a new jurisdiction;







(16) transactions between the Company or any of its Restricted Subsidiaries and any Person that is an Affiliate solely because one or more of its directors is also a director of the Company or any direct or indirect parent of the Company; provided that such director abstains from voting as a director of the Company or such direct or indirect parent, as the case may be, on any matter involving such other Person; or







(17) the formation and maintenance of any consolidated group or subgroup for tax, accounting or cash pooling or management purposes in the ordinary course of business; provided that the Board of Directors determines in good faith that the formation and maintenance of such group or subgroup is in the best interests of the Company and will not materially adversely affect the Company’s ability to perform its obligations under this Indenture.







Section 4.12.   Designation of Restricted and Unrestricted Subsidiaries.







(a) The Board of Directors may designate any Subsidiary, including a newly acquired or created Subsidiary, to be an Unrestricted Subsidiary if it meets the following qualifications and the designation would not cause a Default.







(1) Such Subsidiary does not own any Capital Stock of the Company (other than Qualified Equity Interests) or any Restricted Subsidiary that is not a Subsidiary of the Subsidiary




 




  





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to be so designated or hold any Lien on any property of the Company or any Restricted Subsidiary that is not a Subsidiary of the Subsidiary to be so designated.








(2)  At the time of the designation, the designation would be permitted under Section 4.5  or as a Permitted Investment.









(3) To the extent the Debt of the Subsidiary is not Non-Recourse Debt, any Guarantee or other credit support thereof by the Company or any Restricted Subsidiary is permitted under Section 4.04 and Section 4.05.







(4) Neither the Company nor any Restricted Subsidiary has any obligation to subscribe for additional Equity Interests of the Subsidiary or to maintain or preserve its financial condition or cause it to achieve specified levels of operating results, except to the extent permitted by Section 4.04 and Section 4.05.







Once so designated the Subsidiary will remain an Unrestricted Subsidiary, subject to paragraph (b).







(b) (1) A Subsidiary previously designated an Unrestricted Subsidiary which fails to meet the qualifications set forth in paragraph (a) will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in paragraph (d).







(2) The Board of Directors may designate an Unrestricted Subsidiary to be a Restricted Subsidiary if (x) the designation would not cause a Default and (y) immediately after giving effect to the transaction on a pro forma basis, (i) the Company could Incur at least $1.00 of Debt under the Fixed Charge Coverage Test or (ii) the Fixed Charge Coverage Ratio is greater than immediately prior thereto.








(c)  Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,









(1) all existing Investments of the Company and the Restricted Subsidiaries therein (valued at the Company’s proportional share of the fair market value of its assets less liabilities) will be deemed made at that time;







(2) all existing Capital Stock or Debt of the Company or a Restricted Subsidiary held by it will be deemed Incurred at that time, and all Liens on property of the Company or a Restricted Subsidiary held by it will be deemed incurred at that time;







(3) all existing transactions between it and the Company or any Restricted Subsidiary will be deemed entered into at that time;








(4)  it is released at that time from its Note Guaranty, if any; and










(5)  it will cease to be subject to the provisions of this Indenture as a Restricted Subsidiary.










(d)  Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary,









(1) all of its Debt and Disqualified or Preferred Stock will be deemed Incurred at that time for purposes of Section 4.04, but will not be considered the sale or issuance of Equity Interests for purposes of Section 4.10;


 




  





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(2)  Investments therein previously charged under Section 4.05 will be credited thereunder;










(3)  to the extent required by Section 4.08, it shall issue a Note Guaranty of the Notes; and










(4)  it will thenceforward be subject to the provisions of this Indenture as a Restricted Subsidiary.









(e) Any designation by the Board of Directors of a Subsidiary as a Restricted Subsidiary or Unrestricted Subsidiary will be evidenced to the Trustee by promptly filing with the Trustee a copy of the Board Resolution giving effect to the designation and an Officers’ Certificate certifying that the designation complied with the foregoing provisions.







Section 4.13.   Financial Reports.







(a) Whether or not the Company is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company must provide the Trustee and Noteholders, or file electronically with the Commission, within the time periods specified in the Commission rules and regulations for non-accelerated filers







(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 Company were required to file such forms, including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and, with respect to annual information only, a report thereon by the Company’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 Company were required to file such reports.







In addition, whether or not required by the Commission, the Company will, after the effectiveness of an Exchange Offer Registration Statement or Shelf Registration Statement, if the Commission will accept the filing, file a copy of all of the information and reports referred to in clauses (1) and (2) with the Commission for public availability within the time periods specified in the Commission’s rules and regulations. In addition, the Company will make the information and reports available to securities analysts and prospective investors upon request.







The Company will also hold quarterly conference calls for the holders of the Notes to discuss financial information for the previous quarter (it being understood that such quarterly conference call may be the same conference call as with the Company’s equity investors and analysts). The conference call will be following the last day of each fiscal quarter of the Company and not later than 10 Business Days after the time that the Company distributes the financial information as set forth in Section 4.13(a)(1). No fewer than two days prior to the conference call, the Company will issue a press release announcing the time and date of such conference call and providing instructions for holders, securities analysts and prospective investors to obtain access to such call.







Notwithstanding the foregoing, if any direct or indirect parent of the Company fully and unconditionally guarantees the Notes, the filing of such reports by such parent within the time periods specified above will satisfy such obligations of the Company; provided that, following effectiveness of an Exchange Offer Registration Statement or Shelf Registration Statement, such reports shall include the information required by Rule 3-10 of Regulation S-X with respect to the Company and the Guarantors.


 




  





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(b) For so long as any of the Notes remain outstanding and constitute “restricted securities” under Rule 144 under the Securities Act, the Company will furnish to the Holders of the Notes and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.








(c)  All obligors on the Notes will comply with Section 314(a) of the Trust Indenture Act.









(d) Delivery of these reports and information to the Trustee is for informational purposes only and the Trustee’s receipt of them will not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates).







(e) Notwithstanding the foregoing, the requirements of paragraph (a) above shall be deemed satisfied prior to the effective date of the Exchange Offer Registration Statement or the Shelf Registration Statement (as the case may be) by the filing with the Commission of the Exchange Offer Registration Statement or the Shelf Registration Statement, and any amendments thereto, in accordance with the provisions of the Registration Rights Agreement containing the information substantially consistent with that required by paragraph (a) and filed within the time periods set forth above.







Section 4.14.   Reports to Trustee.







(a) The Company will deliver to the Trustee within 120 days after the end of each fiscal year an Officers’ Certificate stating that the Company has fulfilled its obligations hereunder or, if there has been a Default, specifying the Default and its nature and status.







(b) The Company will deliver to the Trustee as soon as possible and in any event within 30 days after the Company becomes aware of the occurrence of a Default, an Officers’ Certificate setting forth the details of the Default, and the action which the Company proposes to take with respect thereto.







Section 4.15.   Limitation of Applicability of Certain Covenants if Notes Rated Investment Grade.







(a) The obligation of the Company and its Restricted Subsidiaries to comply with Article 4 (except for Sections 4.01, 4.02, 4.03, 4.06, 4.09, 4.12, 4.13 and 4.14) and Section 5.01(a)(iii)(3) will be suspended (such suspended covenants, the “Suspended Covenants”) and cease to have any further effect from and after the first date when the Notes have an Investment Grade Rating; provided, that if the Notes cease to have an Investment Grade Rating, then, from and after such time, the obligation of the Company and its Restricted Subsidiaries to comply with the Suspended Covenants shall be reinstated.







(b) Notwithstanding the foregoing, in the event of any such reinstatement, no action taken or omitted to be taken by the Company or any of its Subsidiaries prior to such reinstatement shall give rise to a Default or Event of Default under this Indenture upon reinstatement; provided that (1) with respect to Restricted Payments made after any such reinstatement, the amount of Restricted Payments made on or after the Issue Date, for purposes of Section 4.05(a)(3), will be calculated as though such covenant had been in effect during the entire period after such date; (2) all Debt, Incurred, during the suspension period will be deemed to have been Incurred pursuant to Section 4.04(b)(8), and (3) promptly, and in any event within 10 Business Days of such reinstatement, any Restricted Subsidiary that would have been required prior to such reinstatement by Section 4.08 to execute a supplemental indenture and Guarantee the Notes (but for the suspension of such covenant) will execute such supplemental indenture required by such covenant.


 




  





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ARTICLE 5







CONSOLIDATION, MERGER OR SALE OF ASSETS







Section 5.01.   Consolidation, Merger or Sale of Assets by the Company.








(a)  The Company will not










(i)  consolidate with or merge with or into any Person, or









(ii) sell, convey, transfer, lease, or otherwise dispose of all or substantially all of its assets as an entirety or substantially an entirety, in one transaction or a series of related transactions, to any Person or








(iii)  permit any Person to merge with or into the Company unless









(1) either (x) the Company is the continuing Person or (y) the resulting, surviving or transferee Person is a Person organized and validly existing under the laws of the United States of America or any jurisdiction thereof and expressly assumes by supplemental indenture all of the obligations of the Company under this Indenture and the Notes and the Registration Rights Agreement;







(2) immediately after giving effect to the transaction, no Default has occurred and is continuing;







(3) in the case of a transaction involving the Company, immediately after giving effect to the transaction on a pro forma basis, (i) the Company or the resulting surviving or transferee Person could Incur at least $1.00 of Debt under the Fixed Charge Coverage Test or (ii) the Fixed Charge Coverage Ratio is greater than immediately prior thereto; and







(4) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that the consolidation, merger or transfer and the supplemental indenture (if any) comply with this Indenture;







provided that clauses (2) through (4) do not apply (i) to the consolidation or merger of the Company with or into, or the sale by the Company of all or substantially all its assets to, a Restricted Subsidiary or the consolidation or merger of a Restricted Subsidiary with or into, or the sale by such Subsidiary of all or substantially all of its assets to, the Company or (ii) if, in the good faith determination of the Board of Directors of the Company, whose determination is evidenced by a Board Resolution, the sole purpose of the transaction is to change the jurisdiction of incorporation of the Company or to form a holding company for the Company (provided that such holding company becomes a Guarantor).







The foregoing shall not apply to (i) any transfer of assets by the Company to any Guarantor, (ii) any transfer of assets among Guarantors or (iii) any transfer of assets by a Restricted Subsidiary that is not a Guarantor to (x) another Restricted Subsidiary that is not a Guarantor or (y) the Company or any Guarantor.







(b) Upon the consummation of any transaction effected in accordance with these provisions, if the Company is not the continuing Person, the resulting, surviving or transferee Person will succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and


 




  





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the Notes with the same effect as if such successor Person had been named as the Company in this Indenture. Upon such substitution, except in the case of a lease of all or substantially all of its assets, the Company will be released from its obligations under this Indenture and the Notes.







Section 5.02.   Consolidation, Merger or Sale of Assets by a Guarantor.








(a)  No Guarantor may










(i)  consolidate with or merge with or into any Person, or









(ii) sell, convey, transfer or dispose of, all or substantially all its assets as an entirety or substantially as an entirety, in one transaction or a series of related transactions, to any Person, or








(iii)  permit any Person to merge with or into the Guarantor unless









(A) the other Person is the Company or any Restricted Subsidiary that is a Guarantor or becomes a Guarantor concurrently with the transaction; or







(B) (1) either (x) the Guarantor is the continuing Person or (y) the resulting, surviving or transferee Person expressly assumes by supplemental indenture all of the obligations of the Guarantor under its Note Guaranty; and







(2) immediately after giving effect to the transaction, no Default has occurred and is continuing; or







(C) the transaction constitutes a sale or other disposition (including by way of consolidation or merger) of the Guarantor or the sale or disposition of all or substantially all the assets of the Guarantor (in each case other than to the Company or a Restricted Subsidiary) otherwise permitted by this Indenture.







ARTICLE 6







DEFAULT AND REMEDIES







Section 6.01.   Events of Default. An “Event of Default” occurs if







(1) the Company defaults in the payment of the principal or premium of any Note when the same becomes due and payable at maturity, upon acceleration or redemption, or otherwise;







(2) the Company defaults in the payment of interest (including any Additional Interest) on any Note when the same becomes due and payable, and the default continues for a period of 30 days;







(3) the Company fails to accept and pay for Notes tendered when and as required pursuant to Section 4.09 or Section 4.10;







(4) the Company defaults in the performance of or breaches any other covenant or agreement of the Company in this Indenture or under the Notes and the default or breach continues for a period of 60 consecutive days after written notice to the Company by the Trustee or to




 




  





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the Company and the Trustee by the Holders of 25% or more in aggregate principal amount of the Notes (except in the case of a default with respect to Article 5, which will constitute an Event of Default with such notice requirement but without such passage of time requirement);







(5) the failure by the Company or any Significant Restricted Subsidiary to pay any Debt (other than Debt owing to the Company or a Restricted Subsidiary) within any applicable grace period after final maturity or the acceleration of any such Debt by the holders thereof because of a default, in each case, if the total amount of such Debt unpaid or accelerated exceeds $30.0 million;







(6) one or more final judgments or orders for the payment of money are rendered against the Company or any of its Significant Restricted Subsidiaries and are not paid or discharged, and there is a period of 60 consecutive days following entry of the final judgment or order that causes the aggregate amount for all such final judgments or orders outstanding and not paid or charged against all such Persons to exceed $30.0 million (in excess of amounts which the Company’s insurance carriers have agreed to pay under applicable policies) during which a stay of enforcement, by reason of a pending appeal or otherwise, is not in effect;







(7) an involuntary case or other proceeding is commenced against the Company or any Significant Restricted Subsidiary with respect to it or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, and such involuntary case or other proceeding remains undismissed and unstayed for a period of 60 days; or an order for relief is entered against the Company or any Significant Restricted Subsidiary under the federal bankruptcy laws as now or hereafter in effect and the order remains in effect for a period of 60 days;












(8) the Company or any of its Significant Restricted Subsidiaries (i) commences a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or consents to the entry of an order for relief in an involuntary case under any such law, (ii) consents to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of the Company or any of its Significant Restricted Subsidiaries or for all or substantially all of the property and assets of the Company or any of its Significant Restricted Subsidiaries or (iii) effects any general assignment for the benefit of creditors (an event of default specified in clause (7) or (8) a “bankruptcy default”); or







(9) any Note Guaranty of a Significant Restricted Subsidiary ceases to be in full force and effect, other than in accordance with the terms of this Indenture, or a Guarantor denies or disaffirms its obligations under its Note Guaranty.







Section 6.02.   Acceleration.







(a) If an Event of Default, other than a bankruptcy default with respect to the Company, occurs and is continuing under this Indenture, the Trustee or the Holders of at least 25% in aggregate principal amount of the Notes then outstanding, by written notice to the Company (and to the Trustee if the notice is given by the Holders), may, and the Trustee at the request of such Holders shall, declare the principal of and accrued interest on the Notes to be immediately due and payable. Upon a declaration of acceleration, such principal and interest will become immediately due and payable. If a bankruptcy default occurs with respect to the Company, the principal of and accrued interest on the Notes then outstanding 


 




  





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will become immediately due and payable without any declaration or other act on the part of the Trustee or any Holder.







(b) The Holders of a majority in principal amount of the outstanding Notes by written notice to the Company and to the Trustee may waive all past defaults and rescind and annul a declaration of acceleration and its consequences if







(1) all existing Events of Default, other than the nonpayment of the principal of, premium, if any, and interest on the Notes that have become due solely by the declaration of acceleration, have been cured or waived, and







(2) the rescission would not conflict with any judgment or decree of a court of competent jurisdiction.







(c) In the event of a declaration of acceleration of the Notes because an Event of Default described in clause (5) of Section 6.01 has occurred and is continuing, the declaration of acceleration of the Notes shall be automatically annulled if the event of default or payment default triggering such Event of Default pursuant to clause (5) shall be remedied or cured, or waived by the holders of the Debt, or the Debt that gave rise to such Event of Default shall have been discharged in full, within 30 days after the declaration of acceleration with respect thereto and if (1) the annulment of the acceleration of the Notes would not conflict with any judgment or decree of a court of competent jurisdiction and (2) all existing Events of Default, except nonpayment of principal, premium or interest on the Notes that became due solely because of the acceleration of the Notes, have been cured or waived.







Section 6.03. Other Remedies. If an Event of Default occurs and is continuing, the Trustee may pursue, in its own name or as trustee of an express trust, any available remedy by proceeding at law or in equity to collect the payment of principal of and interest on the Notes or to enforce the performance of any provision of the Notes or this Indenture. The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding.







Section 6.04. Waiver of Past Defaults. Except as otherwise provided in Sections 6.02, 6.07 and 9.02, the Holders of a majority in principal amount of the outstanding Notes may, by notice to the Trustee, waive an existing Default and its consequences. Upon such waiver, the Default will cease to exist, and any Event of Default arising therefrom will be deemed to have been cured, but no such waiver will extend to any subsequent or other Default or impair any right consequent thereon.







Section 6.05. Control by Majority. The Holders of a majority in aggregate 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 the Trustee. However, the Trustee may refuse to follow any direction that conflicts with law or this Indenture, that may involve the Trustee in personal liability, or that the Trustee determines in good faith may be unduly prejudicial to the rights of Holders of Notes not joining in the giving of such direction, and may take any other action it deems proper that is not inconsistent with any such direction received from Holders of Notes.







Section 6.06. Limitation on Suits. A Holder may not institute any proceeding, judicial or otherwise, with respect to this Indenture or the Notes, or for the appointment of a receiver or trustee, or for any other remedy under this Indenture or the Notes, unless:







(1) the Holder has previously given to the Trustee written notice of a continuing Event of Default;


 




  





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(2) Holders of at least 25% in aggregate principal amount of outstanding Notes have made written request to the Trustee to institute proceedings in respect of the Event of Default in its own name as Trustee under this Indenture;







(3) Holders have offered to the Trustee indemnity satisfactory to the Trustee against any costs, liabilities or expenses to be incurred in compliance with such request;







(4) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and







(5) during such 60-day period, the Holders of a majority in aggregate principal amount of the outstanding Notes have not given the Trustee a direction that is inconsistent with such written request.







Section 6.07. Rights of Holders to Receive Payment. Notwithstanding anything to the contrary, the right of a Holder of a Note to receive payment of principal of or interest on its Note on or after the Stated Maturities thereof, or to bring suit for the enforcement of any such payment on or after such respective dates, may not be impaired or affected without the consent of that Holder.







Section 6.08. Collection Suit by Trustee. If an Event of Default in payment of principal or interest specified in clause (1) or (2) of Section 6.01 occurs and is continuing, the Trustee may recover judgment in its own name and as trustee of an express trust for the whole amount of principal and accrued interest remaining unpaid, together with interest on overdue principal and, to the extent lawful, overdue installments of interest, in each case at the rate specified in the Notes, and such further amount as is sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel and any other amounts due the Trustee hereunder.







Section 6.09. Trustee May File Proofs of Claim. The Trustee may file 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 any other amounts due the Trustee hereunder) and the Holders allowed in any judicial proceedings relating to the Company or any Guarantor or their respective creditors or property, and is entitled and empowered to collect, receive and distribute any money, securities or other property payable or deliverable upon conversion or exchange of the Notes or upon any such claims. Any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, if the Trustee consents to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agent and counsel, and any other amounts due the Trustee hereunder. Nothing in this Indenture will be deemed to empower the Trustee to authorize or consent to, or accept or adopt on behalf of any Holder, any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.







Section 6.10. Priorities. If the Trustee collects any money pursuant to this Article, it shall pay out the money in the following order:







First: to the Trustee (acting in any capacity hereunder) for all amounts due hereunder;









  





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







Third: to the Company or as a court of competent jurisdiction may direct.







The Trustee, upon written notice to the Company, may fix a record date and payment date for any payment to Holders pursuant to this Section.







Section 6.11. Restoration of Rights and Remedies. If the Trustee or any Holder has instituted a proceeding to enforce any right or remedy under this Indenture and the proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to the Holder, then, subject to any determination in the proceeding, the Company, any Guarantors, the Trustee and the Holders will be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Company, any Guarantors, the Trustee and the Holders will continue as though no such proceeding had been instituted.







Section 6.12. 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 may require any party litigant in such suit (other than the Trustee) to file an undertaking to pay the costs of the suit, and the court may assess reasonable costs, including reasonable attorneys’ fees, against any party litigant (other than the Trustee) in the suit having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section does not apply to a suit by a Holder to enforce payment of principal of or interest on any Note on the respective due dates, or a suit by Holders of more than 10% in principal amount of the outstanding Notes.







Section 6.13. Rights and Remedies Cumulative. No right or remedy conferred or reserved to the Trustee or to the Holders under this Indenture is intended to be exclusive of any other right or remedy, and all such rights and remedies are, to the extent permitted by law, cumulative and in addition to every other right and remedy hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or exercise of any right or remedy hereunder, or otherwise, will not prevent the concurrent assertion or exercise of any other right or remedy.







Section 6.14. Delay or Omission Not Waiver. No delay or omission of the Trustee or of any Holder to exercise any right or remedy accruing upon any Event of Default will impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.







Section 6.15. Waiver of Stay, Extension or Usury Laws. The Company and each Guarantor covenants, to the extent that it may lawfully do so, that it will not at any time insist upon, or 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 Company or the Guarantor from paying all or any portion of the principal of, or interest on the Notes as contemplated herein, wherever enacted, now or at any time hereafter in force, or that may affect the covenants or the performance of this Indenture. The Company and each Guarantor hereby expressly waives, to the extent that it may lawfully do so, 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.











  





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ARTICLE 7







THE TRUSTEE







Section 7.01.   General.







(a) The duties and responsibilities of the Trustee are as provided by the Trust Indenture Act and as set forth herein. Whether or not expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee is subject to this Article.







(b) Except during the continuance of an Event of Default, the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations will be read into this Indenture against the Trustee. In case an Event of Default has occurred and is continuing, the Trustee shall exercise those rights and powers vested in it by this Indenture, 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.







(c) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act or its own willful misconduct.







Section 7.02. Certain Rights of Trustee. Subject to Trust Indenture Act Sections 315(a) through (d):







(1) In the absence of bad faith on its part, the Trustee may rely, and will be protected in acting or refraining from acting, upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or 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, but, in the case of any document which is specifically required to be furnished to the Trustee pursuant to any provision hereof, the Trustee shall examine the document to determine whether it conforms to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein). The Trustee, in its discretion, may make further inquiry or investigation into such facts or matters as it sees fit.







(2) Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate or an Opinion of Counsel conforming to Section 11.05 and the Trustee will not be liable for any action it takes or omits to take in good faith in reliance on the certificate or opinion.







(3) The Trustee may act through its attorneys and agents and will 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.







(4) The Trustee will be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders, unless such Holders have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities that might be incurred by it in compliance with such request or direction.







(5) The Trustee will not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within its rights or powers or for any action it takes or omits to take in accordance with the direction of the Holders in accordance with Section 6.05 relating to




 




  





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the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture.







(6) The Trustee may consult with counsel, and the written advice of such counsel or any Opinion of Counsel will be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.







(7) No provision of this Indenture will require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of its duties hereunder, or in the exercise of its rights or powers, unless it receives indemnity satisfactory to it against any loss, liability or expense.







(8) Except with respect to Section 4.01, the Trustee shall have no duty to inquire as to the performance of the Company with respect to the covenants contained in Article 4. In addition, the Trustee shall not be deemed to have knowledge of an Event of Default except (i) any Default or Event of Default occurring pursuant to Sections 4.01, 6.01(1) or 6.01(2) or (ii) any Default or Event of Default of which Trustee shall have received written notification or obtained actual knowledge.







(9) In no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.







(10) The Trustee shall not be deemed to have notice of any Default or Event of 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.







(11) 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.







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







(13) The Trustee may request that the Company deliver a certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture.







Section 7.03. Individual Rights of Trustee. The Trustee, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with the Company or its Affiliates with the same rights it would have if it were not the Trustee. Any Agent may do the same with like rights. However, the Trustee is subject to Trust Indenture Act Sections 310(b) and 311. For purposes of Trust Indenture Act Section 311(b)(4) and (6):







(a) “cash transaction” means any transaction in which full payment for goods or securities sold is made within seven days after delivery of the goods or securities in currency or in checks or other orders drawn upon banks or bankers and payable upon demand; and









  





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(b) “self-liquidating paper” means any draft, bill of exchange, acceptance or obligation which is made, drawn, negotiated or incurred for the purpose of financing the purchase, processing, manufacturing, shipment, storage or sale of goods, wares or merchandise and which is secured by documents evidencing title to, possession of, or a lien upon, the goods, wares or merchandise or the receivables or proceeds arising from the sale of the goods, wares or merchandise previously constituting the security; provided the security is received by the Trustee simultaneously with the creation of the creditor relationship arising from the making, drawing, negotiating or incurring of the draft, bill of exchange, acceptance or obligation.







Section 7.04. Trustee’s Disclaimer. The Trustee (i) makes no representation as to the validity or adequacy of this Indenture or the Notes, (ii) is not accountable for the Company’s use or application of the proceeds from the Notes and (iii) is not responsible for any statement in the Notes other than its certificate of authentication.







Section 7.05. Notice of Default. If any Default occurs and is continuing and is known to the Trustee, the Trustee will send notice of the Default to each Holder within 90 days after it occurs, unless the Default has been cured; provided that, except in the case of a default in the payment of the principal of or interest on any Note, the Trustee may withhold the notice if and so long as the board of directors, the executive committee or a committee of trust officers of the Trustee in good faith determines that withholding the notice is in the interest of the Holders. Notice to Holders under this Section will be given in the manner and to the extent provided in Trust Indenture Act Section 313(c).







Section 7.06. Reports by Trustee to Holders. Within 60 days after each May 15, beginning with May 15, 2013, the Trustee will mail to each Holder, as provided in Trust Indenture Act Section 313(c), a brief report dated as of such May 15, if required by Trust Indenture Act Section 313(a), mail such reports to the Company and file such reports with each stock exchange upon which its Notes are listed and with the Commission as required by Trust Indenture Act Section 313(d).







Section 7.07.   Compensation and Indemnity.







(a) The Company will pay the Trustee compensation as agreed upon in writing for its services. The compensation of the Trustee is not limited by any law on compensation of a Trustee of an express trust. The Company will reimburse the Trustee (acting in any capacity hereunder) upon request for all reasonable out-of-pocket expenses, disbursements and advances incurred or made by the Trustee, including the reasonable compensation and expenses of the Trustee’s agents and counsel.


 


(b) The Company will indemnify the Trustee (acting in any capacity hereunder) for, and hold it harmless against, any loss or liability or expense incurred by it without negligence, bad faith or willful misconduct on its part arising out of or in connection with the acceptance or administration of this Indenture and its duties under this Indenture and the Notes, including the costs and expenses of defending itself against any claim or liability and of complying with any process served upon it or any of its officers in connection with the exercise or performance of any of its powers or duties under this Indenture and the Notes. The Trustee shall notify the Company promptly of any claim asserted against the Trustee or any of its agents for which it may seek indemnity. The Company shall defend the claim and the Trustee shall cooperate in the defense. The Trustee and its agents subject to the claim may have separate counsel, and the Company shall pay the reasonable fees and expenses of such counsel; provided, however, that the Company will not be required to pay such fees and expenses if there is no conflict of interest between the Company and the Trustee and its agents subject to the claim in connection with such defense as reasonably determined by the Trustee. The Company need not pay for any settlement made without its written consent. The Company need not reimburse any expense or indemnify against any loss or liability to the extent incurred by the Trustee through the Trustee’s negligence, bad faith or willful misconduct.




 




  





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(c) To secure the Company’s payment obligations in this Section, the Trustee will have a lien prior to the Notes on all money or property held or collected by the Trustee, in its capacity as Trustee, except money or property held in trust to pay principal of, and interest on, particular Notes.







Section 7.08.   Replacement of Trustee.







(a)(1) The Trustee may resign at any time by written notice to the Company.







(2) The Holders of a majority in principal amount of the outstanding Notes may remove the Trustee by written notice to the Trustee.







(3) If the Trustee is no longer eligible under Section 7.10 or in the circumstances described in Trust Indenture Act Section 310(b), any Holder that satisfies the requirements of Trust Indenture Act Section 310(b) may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.







(4) The Company may remove the Trustee if: (i) the Trustee is no longer eligible under Section 7.10; (ii) the Trustee is adjudged a bankrupt or an insolvent; (iii) a receiver or other public officer takes charge of the Trustee or its property; or (iv) the Trustee becomes incapable of acting.







A resignation or removal of the Trustee and appointment of a successor Trustee will become effective only upon the successor Trustee’s acceptance of appointment as provided in this Section.







(b) If the Trustee has been removed by the Holders, Holders of a majority in principal amount of the Notes may appoint a successor Trustee with the consent of the Company. Otherwise, if the Trustee resigns or is removed, or if a vacancy exists in the office of Trustee for any reason, the Company will promptly appoint a successor Trustee. If the successor Trustee does not deliver its written acceptance within 30 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Company or the Holders of a majority in principal amount of the outstanding Notes may petition any court of competent jurisdiction for the appointment of a successor Trustee.







(c) Upon delivery by the successor Trustee of a written acceptance of its appointment to the retiring Trustee and to the Company, (i) the retiring Trustee will transfer all property held by it as Trustee to the successor Trustee, subject to the lien provided for in Section 7.07, (ii) the resignation or removal of the retiring Trustee will become effective, and (iii) the successor Trustee will have all the rights, powers and duties of the Trustee under this Indenture. Upon request of any successor Trustee, the Company will execute any and all instruments for fully vesting in and confirming to the successor Trustee all such rights, powers and trusts. The Company will give notice of any resignation and any removal of the Trustee and each appointment of a successor Trustee to all Holders, and include in the notice the name of the successor Trustee and the address of its Corporate Trust Office. The retiring Trustee shall have no responsibility or liability for the action or inaction of any successor Trustee.







(d) Notwithstanding replacement of the Trustee pursuant to this Section, the Company’s obligations under Section 7.07 will continue for the benefit of the retiring Trustee.







(e) The Trustee agrees to give the notices provided for in, and otherwise comply with, Trust Indenture Act Section 310(b).







Section 7.09. Successor Trustee by Merger. If the Trustee consolidates with, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation or national banking association, the resulting, surviving or transferee corporation or national banking association 




 




  





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without any further act will be the successor Trustee with the same effect as if the successor Trustee had been named as the Trustee in this Indenture; provided that such corporation or national banking association shall be otherwise qualified and eligible under this Article Seven.







Section 7.10. Eligibility. The Indenture must always have a Trustee that satisfies the requirements of Trust Indenture Act Section 310(a) and has a combined capital and surplus of at least $25,000,000 as set forth in its most recent published annual report of condition.







Section 7.11. Money Held in Trust. The Trustee will not be liable for interest on any money received by it except as it may agree with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law and except for money held in trust under Article 8.







ARTICLE 8







DEFEASANCE AND DISCHARGE







Section 8.01.   Discharge of Company’s Obligations.







(a) Subject to paragraph (b), the Company’s obligations under the Notes and this Indenture, and each Guarantor’s obligations under its Note Guaranty, will terminate if:







(1) all Notes previously authenticated and delivered (other than (i) destroyed, lost or stolen Notes that have been replaced or (ii) Notes that are paid pursuant to Section 4.01 or (iii) Notes for whose payment money or U.S. Government Obligations have been held in trust and then repaid to the Company pursuant to Section 8.05) have been delivered to the Trustee for cancellation and the Company has paid all sums payable by it hereunder; or







(2) (A) the Notes mature within one year, or all of them are to be called for redemption within one year under arrangements reasonably satisfactory to the Trustee for giving the notice of redemption,







(B) the Company irrevocably deposits in trust with the Trustee, as trust funds solely for the benefit of the Holders, money or U.S. Government Obligations or a combination thereof sufficient, without consideration of any reinvestment, to pay principal of and interest on the Notes to maturity or redemption, as the case may be, and to pay all other sums payable by it hereunder,







(C) no Default has occurred and is continuing on the date of the deposit or will occur as a result of the deposit, and







(D) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the satisfaction and discharge of this Indenture have been complied with.







(b) After satisfying the conditions in clause (1), only the Company’s obligations under Section 7.07 will survive. After satisfying the conditions in clause (2), only the Company’s obligations in Article 2 and Sections 4.01, 4.02, 7.07, 7.08, 8.05 and 8.06 will survive. In either case, the Trustee upon request will acknowledge in writing the discharge of the Company’s obligations under the Notes and this Indenture other than the surviving obligations.











  





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(c) For the avoidance of doubt, in the case of a discharge that occurs in connection with a redemption that is to occur pursuant to the second paragraph of Section 3.01, the amount to be deposited shall be the amount that, as of the date of such deposit, is deemed reasonably sufficient to make such payment and discharge on the date of such redemption, in the good-faith determination of the Company, as evidenced by an Officers’ Certificate.







Section 8.02. Legal Defeasance. The Company will be deemed to have paid and will be discharged from its obligations in respect of the Notes and this Indenture, other than its obligations in Article 2 and Sections 4.01, 4.02, 7.07, 7.08, 8.05 and 8.06, and each Guarantor’s obligations under its Note Guarantees will terminate; provided the following conditions have been satisfied:







(1) The Company has irrevocably deposited in trust with the Trustee, as trust funds solely for the benefit of the Holders, money or U.S. Government Obligations or a combination thereof sufficient, in the opinion of a nationally recognized firm of independent public accountants, without consideration of any reinvestment, to pay principal of and interest on the Notes to maturity or redemption, as the case may be; provided that any redemption before maturity has been irrevocably provided for under arrangements reasonably satisfactory to the Trustee.








(2)  No Default has occurred and is continuing on the date of the deposit.









(3) The deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound.







(4) The Company has delivered to the Trustee either (x) a ruling received from the Internal Revenue Service to the effect that the Holders will not recognize income, gain or loss for federal income tax purposes as a result of the defeasance and will be subject to federal income tax on the same amount and in the same manner and at the same times as would otherwise have been the case or (y) an Opinion of Counsel, based on a change in law after the date of this Indenture, to the same effect as the ruling described in clause (x).







(5) The Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance have been complied with.







After discharge of the Company’s obligations under this Indenture, the Trustee upon request will acknowledge in writing the discharge of the Company’s obligations under the Notes and this Indenture except for the surviving obligations specified above.







Section 8.03. Covenant Defeasance. The Company’s obligations set forth in Sections 4.04 through 4.15, inclusive and Section 5.01(a)(iii)(3), and each Guarantor’s obligations under its Note Guarantees, will terminate, and Section 6.01(3), (4), (5), (6) and (9) will no longer constitute Events of Default; provided the following conditions have been satisfied:








(1)  The Company has complied with clauses (1), (2), (3) and (5) of Section 8.02; and









(2) the Company has delivered to the Trustee an Opinion of Counsel to the effect that the Holders will not recognize income, gain or loss for federal income tax purposes as a result of the defeasance and will be subject to federal income tax on the same amount and in the same manner and at the same times as would otherwise have been the case.











  





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Except as specifically stated above, none of the Company’s obligations under this Indenture will be discharged.







Section 8.04. Application of Trust Money. Subject to Section 8.05, the Trustee will hold in trust the money or U.S. Government Obligations deposited with it pursuant to Section 8.01, 8.02 or 8.03, and apply the deposited money and the proceeds from deposited U.S. Government Obligations to the payment of principal of and interest on the Notes in accordance with the Notes and this Indenture. Such money and U.S. Government Obligations need not be segregated from other funds except to the extent required by law.







Section 8.05. Repayment to Company. Subject to Sections 7.07, 8.01, 8.02 and 8.03, the Trustee will promptly pay to the Company upon request any excess money held by the Trustee at any time and thereupon be relieved from all liability with respect to such money. The Trustee will pay to the Company upon request any money held for payment with respect to the Notes that remains unclaimed for two years; provided that before making such payment the Trustee may at the expense of the Company publish once in a newspaper of general circulation in New York City, or send to each Holder entitled to such money, notice that the money remains unclaimed and that after a date specified in the notice (at least 30 days after the date of the publication or notice) any remaining unclaimed balance of money will be repaid to the Company. After payment to the Company, Holders entitled to such money must look solely to the Company for payment, unless applicable law designates another Person, and all liability of the Trustee with respect to such money will cease.







Section 8.06. Reinstatement. If and for so long as the Trustee is unable to apply any money or U.S. Government Obligations held in trust pursuant to Section 8.01, 8.02 or 8.03 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Company’s obligations under this Indenture and the Notes will be reinstated as though no such deposit in trust had been made. If the Company makes any payment of principal of or interest on any Notes because of the reinstatement of its obligations, it will be subrogated to the rights of the Holders of such Notes to receive such payment from the money or U.S. Government Obligations held in trust.







ARTICLE 9







AMENDMENTS, SUPPLEMENTS AND WAIVERS







Section 9.01. Amendments Without Consent of Holders. The Company and the Trustee may amend or supplement this Indenture, the Notes or the Note Guarantees without notice to or the consent of any Noteholder







(1) to cure any ambiguity, omission, mistake, defect or inconsistency in this Indenture or the Notes;








(2)  to comply with Article 5;









(3) to comply with any requirements of the Commission in connection with the qualification of this Indenture under the Trust Indenture Act;







(4) to evidence and provide for the acceptance of an appointment hereunder by a successor Trustee;











  





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(5) to provide for uncertificated Notes in addition to or in place of certificated Notes; provided that the uncertificated Notes are issued in registered form for purposes of Section 163(f) of the Code, or in a manner such that the uncertificated Notes are described in Section 163(f)(2)(B) of the Code;







(6) to provide for any Guarantee of the Notes, to secure the Notes or to confirm and evidence the release, termination or discharge of any Guarantee of or Lien securing the Notes when such release, termination or discharge is permitted by this Indenture;








(7)  to provide for or confirm the issuance of the Exchange Notes or Additional Notes;










(8)  to conform to the “Description of the Notes” in the Offering Memorandum; or









(9) to make any change that would provide any additional rights or benefits to the Holders or that does not materially adversely affect the legal rights under this Indenture of any Holder.







Section 9.02.   Amendments With Consent of Holders.







(a) Except as otherwise provided in Section 6.02, 6.04 and 6.07 or paragraph (b), the Company and the Trustee may amend this Indenture and the Notes with the written consent of the Holders of a majority in principal amount of the outstanding Notes, and the Holders of a majority in principal amount of the outstanding Notes by written notice to the Trustee may waive any past default or future compliance by the Company with any provision of this Indenture or the Notes (which may include consents or waivers obtained in connection with a tender offer or exchange offer for Notes).







(b) Notwithstanding the provisions of paragraph (a), without the consent of each Holder affected, an amendment or waiver may not








(1)  reduce the principal amount of or change the Stated Maturity of any Note,










(2)  reduce the rate of or change the Stated Maturity of any interest payment on any Note,









(3) reduce the amount payable upon the redemption of any Note or change the times at, or circumstances under, which any Note may be redeemed at the option of the Company,







(4) after the time an Offer to Purchase is required to have been made, reduce the purchase amount or purchase price, or extend the latest purchase date thereunder,








(5)  make any Note payable in money other than that stated in the Note,









(6) impair the right of any Holder of Notes to receive any principal payment or interest payment on such Holder’s Notes, on or after the Stated Maturity thereof, or to institute suit for the enforcement of any such payment, or







(7) reduce the percentage of the principal amount of the Notes required for amendments or waivers.











  





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(c) It is not necessary for Holders to approve the particular form of any proposed amendment, supplement or waiver, but is sufficient if their consent approves the substance thereof.







(d) An amendment, supplement or waiver under this Section will become effective on receipt by the Trustee of written consents from the Holders of the requisite percentage in principal amount of the outstanding Notes. After an amendment, supplement or waiver under this Section becomes effective, the Company will send to the Holders affected thereby a notice briefly describing the amendment, supplement or waiver. The Company will send supplemental indentures to Holders upon request. Any failure of the Company to send such notice, or any defect therein, will not, however, in any way impair or affect the validity of any such supplemental indenture or waiver.







Section 9.03.   Effect of Consent.







(a) After an amendment, supplement or waiver becomes effective, it will bind every Holder unless it is of the type requiring the consent of each Holder affected. If the amendment, supplement or waiver is of the type requiring the consent of each Holder affected, the amendment, supplement or waiver will bind each Holder that has consented to it and every subsequent Holder of a Note that evidences the same debt as the Note of the consenting Holder.







(b) If an amendment, supplement or waiver changes the terms of a Note, the Trustee may require the Holder to deliver it to the Trustee so that the Trustee may place an appropriate notation of the changed terms on the Note and return it to the Holder, or exchange it for a new Note that reflects the changed terms. The Trustee may also place an appropriate notation on any Note thereafter authenticated. However, the effectiveness of the amendment, supplement or waiver is not affected by any failure to annotate or exchange Notes in this fashion.







Section 9.04. Trustee’s Rights and Obligations. The Trustee is entitled to receive, and will be fully protected in relying upon, an Opinion of Counsel and Officers’ Certificate stating that the execution of any amendment, supplement or waiver authorized pursuant to this Article is authorized or permitted by this Indenture and that such supplemental indenture is the legal, valid and binding obligation of the Company and any guarantor, enforceable against each in accordance with its terms. If the Trustee has received such an Opinion of Counsel and Officers’ Certificate, it shall sign the amendment, supplement or waiver so long as the same does not adversely affect the rights of the Trustee. The Trustee may, but is not obligated to, execute any amendment, supplement or waiver that affects the Trustee’s own rights, duties or immunities under this Indenture.







Section 9.05. Conformity With Trust Indenture Act. Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act.







ARTICLE 10







GUARANTEES







Section 10.01. The Guarantees. Subject to the provisions of this Article, each Guarantor hereby irrevocably and fully and unconditionally guarantees, jointly and severally, on an unsecured basis, the full and punctual payment (whether at Stated Maturity, upon redemption, purchase pursuant to an Offer to Purchase or acceleration, or otherwise) of the principal of, premium, if any, and interest on, and all other amounts payable under, each Note, and the full and punctual payment of all other amounts payable by the Company under this Indenture. Upon failure by the Company to pay punctually any such amount, each Guarantor shall forthwith on demand pay the amount not so paid at the place and in the manner specified in this Indenture.




 




  





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Section 10.02. Guarantee Unconditional. The obligations of each Guarantor hereunder are unconditional and absolute and, without limiting the generality of the foregoing, to the fullest extent permitted by applicable law, will not be released, discharged or otherwise affected by







(1) any extension, renewal, settlement, compromise, waiver or release in respect of any obligation of the Company under this Indenture or any Note, by operation of law or otherwise;








(2)  any modification or amendment of or supplement to this Indenture or any Note;









(3) any change in the corporate existence, structure or ownership of the Company, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Company or its assets or any resulting release or discharge of any obligation of the Company contained in this Indenture or any Note;







(4) the existence of any claim, setoff or other rights which the Guarantor may have at any time against the Company, the Trustee or any other Person, whether in connection with this Indenture or any unrelated transactions; provided that nothing herein prevents the assertion of any such claim by separate suit or compulsory counterclaim;







(5) any invalidity or unenforceability relating to or against the Company for any reason of this Indenture or any Note, or any provision of applicable law or regulation purporting to prohibit the payment by the Company of the principal of or interest on any Note or any other amount payable by the Company under this Indenture; or







(6) any other act or omission to act or delay of any kind by the Company, the Trustee or any other Person or any other circumstance whatsoever which might, but for the provisions of this paragraph, constitute a legal or equitable discharge of or defense to such Guarantor’s obligations hereunder.







Section 10.03. Discharge; Reinstatement. Each Guarantor’s obligations hereunder will remain in full force and effect until the principal of, premium, if any, and interest on the Notes and all other amounts payable by the Company under this Indenture have been paid in full. If at any time any payment of the principal of, premium, if any, or interest on any Note or any other amount payable by the Company under this Indenture is rescinded or must be otherwise restored or returned upon the insolvency, bankruptcy or reorganization of the Company or otherwise, each Guarantor’s obligations hereunder with respect to such payment will be reinstated as though such payment had been due but not made at such time.







Section 10.04. Waiver by the Guarantors. To the fullest extent permitted by applicable law, each Guarantor irrevocably waives acceptance hereof, presentment, demand, protest and any notice not provided for herein, as well as any requirement that at any time any action be taken by any Person against the Company or any other Person.







Section 10.05. Subrogation and Contribution. Upon making any payment with respect to any obligation of the Company under this Article, the Guarantor making such payment will be subrogated to the rights of the payee against the Company with respect to such obligation; provided that the Guarantor may not enforce either any right of subrogation, or any right to receive payment in the nature of contribution, or otherwise, from any other Guarantor, with respect to such payment so long as any amount payable by the Company hereunder or under the Notes remains unpaid.











  





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Section 10.06. Stay of Acceleration . If acceleration of the time for payment of any amount payable by the Company under this Indenture or the Notes is stayed upon the insolvency, bankruptcy or reorganization of the Company, all such amounts otherwise subject to acceleration under the terms of this Indenture are nonetheless payable by the Guarantors hereunder forthwith on demand by the Trustee or the Holders.







Section 10.07. Limitation on Amount of Guarantee. Notwithstanding anything to the contrary in this Article, each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guaranty of such Guarantor not constitute a fraudulent conveyance under applicable fraudulent conveyance provisions of the United States Bankruptcy Code or any comparable provision of state law. To effectuate that intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of each Guarantor under its Note Guaranty are limited to the maximum amount that would not render the Guarantor’s obligations subject to avoidance under applicable fraudulent transfer provisions of the United States Bankruptcy Code or any comparable provision of state law.







Section 10.08. Execution and Delivery of Guarantee. The execution by each Guarantor of this Indenture (or a supplemental indenture in the form of Exhibit B) evidences the Note Guaranty of such Guarantor, whether or not the person signing as an officer of the Guarantor still holds that office at the time of authentication of any Note. The delivery of any Note by the Trustee after authentication constitutes due delivery of the Note Guaranty set forth in this Indenture on behalf of each Guarantor.







Section 10.09.  Release of Guarantee. The Note Guaranty of a Guarantor will terminate upon







(1) a sale or other disposition (including by way of consolidation or merger) of the Guarantor or the sale or disposition of all or substantially all the assets of the Guarantor (in each case other than to the Company or a Restricted Subsidiary) otherwise permitted by this Indenture,







(2) the designation in accordance with this Indenture of the Guarantor as an Unrestricted Subsidiary or the Guarantor otherwise ceases to be a Restricted Subsidiary in accordance with this Indenture,







(3) in the case of any Domestic Restricted Subsidiary that after the Issue Date is required to provide a Note Guaranty of the Notes pursuant to Section 4.08, the release or discharge of the guaranty by such Restricted Subsidiary of Debt of the Company or any Restricted Subsidiary of the Company or such Restricted Subsidiary or the repayment of the Debt, which resulted in the obligation to provide a Note Guaranty of the Notes, except if a release or discharge is by or as a result of payment under such other guaranty, or








(4)  defeasance or discharge of the Notes, as provided in Article 8.









Upon delivery by the Company to the Trustee of an Officers’ Certificate and an Opinion of Counsel to the foregoing effect, the Trustee will execute any documents reasonably required in order to evidence the release of the Guarantor from its obligations under its Note Guaranty.







ARTICLE 11







MISCELLANEOUS







Section 11.01. Trust Indenture Act of 1939. The Indenture shall incorporate and be governed by the provisions of the Trust Indenture Act that are required to be part of and to govern indentures qualified


 




  





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under the Trust Indenture Act. If any provision of this Indenture limits, qualifies or conflicts with a provision of the Trust Indenture Act that is required under the Trust Indenture Act to be part of and govern this Indenture, the provision of the Trust Indenture Act shall control.







Section 11.02.  Noteholder Communications; Noteholder Actions.







(a) The rights of Holders to communicate with other Holders with respect to this Indenture or the Notes are as provided by the Trust Indenture Act, and the Company and the Trustee shall comply with the requirements of Trust Indenture Act Sections 312(a) and 312(b). Neither the Company nor the Trustee will be held accountable by reason of any disclosure of information as to names and addresses of Holders made pursuant to the Trust Indenture Act.







(b) (1) Any request, demand, authorization, direction, notice, consent to amendment, supplement or waiver or other action provided by this Indenture to be given or taken by a Holder (an “act”) may be evidenced by an instrument signed by the Holder delivered to the Trustee. The fact and date of the execution of the instrument, or the authority of the person executing it, may be proved in any manner that the Trustee deems sufficient.







(2) The Trustee may make reasonable rules for action by or at a meeting of Holders, which will be binding on all the Holders.







(c) Any act by the Holder of any Note binds that Holder and every subsequent Holder of a Note that evidences the same debt as the Note of the acting Holder, even if no notation thereof appears on the Note. Subject to paragraph (d), a Holder may revoke an act as to its Notes, but only if the Trustee receives the notice of revocation before the date the amendment or waiver or other consequence of the act becomes effective.







(d) The Company may, but is not obligated to, fix a record date (which need not be within the time limits otherwise prescribed by Trust Indenture Act Section 316(c)) for the purpose of determining the Holders entitled to act with respect to any amendment or waiver or in any other regard, except that during the continuance of an Event of Default, only the Trustee may set a record date as to notices of dfault, any declaration or acceleration or any other remedies or other consequences of the Event of Default. If a record date is fixed, those Persons that were Holders at such record date and only those Persons will be entitled to act, or to revoke any previous act, whether or not those Persons continue to be Holders after the record date. No act will be valid or effective for more than 90 days after the record date.







Section 11.03.  Notices.







(a) Any notice or communication to the Company will be deemed given if in writing (i) when delivered in person or (ii) five days after mailing when mailed by first class mail, or (iii) when sent by facsimile transmission, with transmission confirmed. Notices or communications to a Guarantor will be deemed given if given to the Company. Any notice to the Trustee will be effective only upon receipt. In each case the notice or communication should be addressed as follows:







if to the Company:







Ruby Tuesday, Inc.


150 West Church Avenue


Maryville, TN 37801


Attention: Scarlett May


Facsimile: (865) 379-6817




 




  





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if to the Trustee:







Wells Fargo Bank, National Association


7000 Central Parkway NE


Suite 550


Atlanta, GA 30328


Attention: Corporate Trust Services, Administrator – Ruby Tuesday, Inc.


Facsimile: (770) 551-5118







The Company or the Trustee by notice to the other may designate additional or different addresses for subsequent notices or communications.







(b) Except as otherwise expressly provided with respect to published notices, any notice or communication to a Holder will be deemed given when mailed to the Holder at its address as it appears on the Register by first class mail or, as to any Global Note registered in the name of DTC or its nominee, as agreed by the Company, the Trustee and DTC. Copies of any notice or communication to a Holder, if given by the Company, will be mailed to the Trustee at the same time. Defect in mailing a notice or communication to any particular Holder will not affect its sufficiency with respect to other Holders.







(c) Where this Indenture provides for notice, the notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and the waiver will be the equivalent of the notice. Waivers of notice by Holders must be filed with the Trustee, but such filing is not a condition precedent to the validity of any action taken in reliance upon such waivers.







Section 11.04. Certificate and Opinion as to Conditions Precedent. Upon any request or application by the Company to the Trustee to take any action under this Indenture, the Company will furnish to the Trustee at the request of the Trustee:







(1) an Officers’ Certificate stating that, in the opinion of the signers, all conditions precedent to be performed or effected by the Company, if any; provided for in this Indenture relating to the proposed action have been complied with; and








(2)  an Opinion of Counsel stating that all such conditions precedent have been complied with.









Section 11.05. Statements Required in Certificate or Opinion. Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture must include:







(1) a statement that each person signing the certificate or opinion has read the covenant or condition and the related definitions;







(2) a brief statement as to the nature and scope of the examination or investigation upon which the statement or opinion contained in the certificate or opinion is based;







(3) a statement that, in the opinion of each such person, that person has made such examination or investigation as is necessary to enable the person to express an informed opinion as to whether or not such covenant or condition has been complied with; 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 that an Opinion of Counsel may rely on an Officers’ Certificate or certificates of public officials with respect to matters of fact.




 




  





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Section 11.06. Payment Date Other Than a Business Day. If any payment with respect to a payment of any principal of, premium, if any, or interest on any Note (including any payment to be made on any date fixed for redemption or purchase of any Note) is due on a day which is not a Business Day, then the payment need not be made on such date, but may be made on the next Business Day with the same force and effect as if made on such date, and no interest will accrue for the intervening period.







Section 11.07. Governing Law. The Indenture, including any Note Guarantees, and the Notes shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to conflicts of law principles thereof.







Section 11.08. No Adverse Interpretation of Other Agreements. The Indenture may not be used to interpret another indenture or loan or debt agreement of the Company or any Subsidiary of the Company, and no such indenture or loan or debt agreement may be used to interpret this Indenture.







Section 11.09. Successors. All agreements of the Company or any Guarantor in this Indenture and the Notes will bind its successors. All agreements of the Trustee in this Indenture will bind its successor.







Section 11.10. Duplicate Originals. The parties may sign any number of copies of this Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. The exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.







Section 11.11. Separability. In case any provision in this Indenture or in the Notes is invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby.







Section 11.12. Table of Contents and Headings. The Table of Contents, Cross-Reference Table and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part of this Indenture and in no way modify or restrict any of the terms and provisions of this Indenture.







Section 11.13. No Liability of Directors, Officers, Employees, Incorporators, Members and Stockholders. No past, present, or future director, officer, employee, incorporator, member, partner or stockholder of the Company or any Guarantor, as such, will have any liability for any obligations of the Company or such Guarantor under the Notes, any Note Guaranty or this Indenture or for any claim based on, in respect of, or by reason of, such obligations. 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 11.14. Benefits of Indenture. Nothing in this Indenture, express or implied, shall give to any Person, other than the parties hereto and their successors thereunder, any Paying Agent and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.







Section 11.15. Indenture Controls. If and to the extent that any provision of the Notes limits, qualifies or conflicts with a provision of this Indenture, such provision of this Indenture shall control.







Section 11.16. Rules by Trustee and Agents. The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar or Paying Agent may make reasonable rules and set reasonable requirements for its function.




 




  





-76-











  











Section 11.17. Force Majeure. In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts that are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.







Section 11.18. USA PATRIOT Act. The parties hereto acknowledge that in accordance with Section 326 of the U.S.A. PATRIOT Act, the Trustee, like all financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. The parties to this Indenture agree that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements of the U.S.A. PATRIOT Act.



















  





-77-











  











SIGNATURES







IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the date first written above.


 


 




	 	
RUBY TUESDAY, INC.,


as Company

	 
	 	 	 	 
	
 

	
By: 

	/s/ Marguerite N. Duffy	 
	 	 	
Name: Marguerite N. Duffy

	 
	 	 	
Title:   Senior Vice President and Chief Financial Officer

	 









 





	 	
RTBD, Inc.,


as Guarantor

	 
	 	 	 	 
	
 

	
By: 

	/s/ Marguerite N. Duffy	 
	 	 	
Name: Marguerite N. Duffy

	 
	 	 	
Title:   President and Treasurer

	 
	 	 	 	 









 


 





[Signature Page to the Indenture]






  





S-1











  













 









	
RT Finance, Inc.,

	
Ruby Tuesday GC Cards, Inc.,


	
RT Tampa Franchise, L.P.,

	
RT Orlando Franchise, L.P.,


	
RT South Florida Franchise, L.P.,

	
RT New York Franchise, LLC,


	
RT Southwest Franchise, LLC,

	
RT Michiana Franchise, LLC,


	
RT Franchise Acquisition, LLC,

	
RT Kentucky Restaurant Holdings, LLC,


	
RT Florida Equity, LLC,

	
RTGC, LLC,


	
RT Detroit Franchise, LLC,

	
RT Michigan Franchise, LLC,


	
RT West Palm Beach Franchise, L.P.,

	
RT New England Franchise, LLC,


	
RT Long Island Franchise, LLC,

	
Ruby Tuesday, LLC,


	
RT Indianapolis Franchise, LLC,

	
RT Denver Franchise, L.P.,


	
RT Omaha Franchise, LLC,

	
RT KCMO Franchise, LLC,


	
RT Portland Franchise, LLC,

	
RT St. Louis Franchise, LLC,


	
RT Western Missouri Franchise, LLC,

	
RT Minneapolis Franchise, LLC,


	
4721 RT of Pennsylvania, Inc.,

	
RT Las Vegas Franchise, LLC,


	
RTTT, LLC,

	
RTT Texas, Inc.,


	
RT Jonesboro Club,

	
RT Arkansas Club, Inc.,


	
Ruby Tuesday of Russellville, Inc.,

	
Ruby Tuesday of Conway, Inc.,


	
RT KCMO Kansas, Inc.,

	
Ruby Tuesday of Bryant, Inc.,


	
RT McGhee Tyson, LLC,

	
RT Louisville Franchise, LLC,


	
RT One Percent Holdings, LLC,

	
RT One Percent Holdings, Inc.,


	
RT Airport, Inc.,

	
Quality Outdoor Services, Inc.,


	
RT Smith, LLC,

	
RT O’Toole, LLC,


	
Wok Hay 2, LLC,

	
RT Millington, LLC,


	
RT Northern California Franchise, LLC,

	
RT Distributing, LLC,


	
RT Restaurant Services, LLC,

	
RTTA, LP,


	
RT Minneapolis Holdings, LLC,

	
RT New Hampshire Restaurant Holdings,


	
RT Denver, Inc.,

	
LLC,

	  
	
RT Orlando, Inc.,

	
RT Omaha Holdings, LLC,


	
RT Tampa, Inc.,

	
RT Louisville, Inc.,


	  	
RT South Florida, Inc.,


	  	
RT West Palm Beach, Inc.,







 


 






	 	
as Guarantors

	 
	 	 	 	 
	
 

	
By: 

	/s/ Marguerite N. Duffy	 
	 	 	
Name: Marguerite N. Duffy

	 
	 	 	
Title:   Vice President

	 
	 	 	 	 







 




[Signature Page to the Indenture]






  





S-2











  










 


 


 



 






	 	

WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee



	 
	 	 	 	 
	
 

	
By: 

	/s/ Stefan Victory	 
	 	 	
Name: Stefan Victory

	 
	 	 	
Title:   Vice President

	 
	 	 	 	 







 








 


 





[Signature Page to the Indenture]






  





S-3











  











EXHIBIT A












[FACE OF NOTE]












Ruby Tuesday, Inc.







75⁄8% Senior Note Due 2020












[CUSIP] [ISIN] _______________


 



	
No.

	
$_______________







 







Ruby Tuesday, Inc., a Georgia corporation (the “Company,” which term includes any successor under the Indenture hereinafter referred to), for value received, promises to pay to




____________________, or its registered assigns, the principal sum of ____________ DOLLARS ($______) [or such other amount as indicated on the Schedule of Exchange of Notes attached hereto] on [ ], 2020.







[Initial]1 Interest Rate: 75⁄8% per annum.







Interest Payment Dates: May 15 and November 15, commencing November 15, 2012. 


 


Regular Record Dates: May 1 and November 1.







Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which will for all purposes have the same effect as if set forth at this place.



















 



_____________


For Initial Notes of Initial Additional Notes only.











  





A-1











  


 




IN WITNESS WHEREOF, the Company has caused this Note to be signed manually or by facsimile by its duly authorized officers.







Date:


 








	 	


RUBY TUESDAY, INC.





	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	
Name: 

	 
	 	 	
Title:   

	 
	 	 	 	 















 




 




  





A-2











  











(Form of Trustee’s Certificate of Authentication)












This is one of the 75⁄8% Senior Notes Due 2020 described in the Indenture referred to in this Note.


 



 








	 	



WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee







	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	

Authorized Signatory



	 
	 	 	 	 







 












 


 




  





A-3











  


 




[REVERSE SIDE OF NOTE]












Ruby Tuesday, Inc.







75⁄8% Senior Note Due 2020













	
1.  

	
Principal and Interest.












The Company promises to pay the principal of this Note on May 15, 2020.







The Company promises to pay interest on the principal amount of this Note on each interest payment date, as set forth on the face of this Note, at the rate of 7.625% per annum [(subject to adjustment as provided below)].2







Interest will be payable semiannually (to the holders of record of the Notes at the close of business on the May 1 or November 1 immediately preceding the interest payment date) on each interest payment date, commencing November 15, 2012.







[The Holder of this Note is entitled to the benefits of the Registration Rights Agreement, dated May 14, 2012, between the Company, the Guarantors and the Initial Purchasers named therein (the “Registration Rights Agreement”) including the right to receive Additional Interest (as defined in the Registration Rights Agreement), if any.]3







Interest on this Note will accrue from the most recent date to which interest has been paid on this Note [or the Note surrendered in exchange for this Note]4 (or, if there is no existing default in the payment of interest and if this Note is authenticated between a regular record date and the next interest payment date, from such interest payment date) or, if no interest has been paid, from [the Issue Date].5 Interest will be computed in the basis of a 360-day year of twelve 30-day months.







The Company will pay interest on overdue principal, premium, if any, and overdue interest, at the rate otherwise applicable to the Notes. Interest not paid when due and any interest on principal, premium, if any, or interest not paid when due will be paid to the Persons that are Holders on a special record date, which will be the 15th day preceding the date fixed by the Company for the payment of such interest, whether or not such day is a Business Day. At least 15 days before a special record date, the Company will send to each Holder and to the Trustee a notice that sets forth the special record date, the payment date and the amount of interest to be paid.

















___________________


2Include only for Initial Note or Initial Additional Note. 


3Include only for Initial Note or Initial Additional Note. 


4Include only for Exchange Note.


5For Additional Notes, should be the date of their original issue.




 




  





A-4











  






 


2.            Indentures; Note Guaranty.







This is one of the Notes issued under an Indenture dated as of May 14, 2012 (as amended from time to time, the “Indenture”), among the Company, the Guarantors party thereto and Wells Fargo Bank, National Association, as Trustee. Capitalized terms used herein are used as defined in the Indenture unless otherwise indicated. 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. The Notes are subject to all such terms, and Holders are referred to the Indenture and the Trust Indenture Act for a statement of all such terms. To the extent permitted by applicable law, in the event of any inconsistency between the terms of this Note and the terms of the Indenture, the terms of the Indenture will control.







The Notes are general unsecured obligations of the Company. The Indenture limits the original aggregate principal amount of the Notes to $250,000,000, but Additional Notes may be issued pursuant to the Indenture, and the originally issued Notes and all such Additional Notes vote together for all purposes as a single class. This Note is guaranteed, as set forth in the Indenture.







3.            Redemption and Repurchase; Discharge Prior to Redemption or Maturity.







This Note is subject to optional redemption, and may be the subject of an Offer to Purchase, as further described in the Indenture. There is no sinking fund or mandatory redemption applicable to this Note.







If the Company deposits with the Trustee money or U.S. Government Obligations sufficient to pay the then outstanding principal of, premium, if any, and accrued interest on the Notes to redemption or maturity, the Company may in certain circumstances be discharged from the Indenture and the Notes or may be discharged from certain of its obligations under certain provisions of the Indenture.







4.            Registered Form; Denominations; Transfer; Exchange.







The Notes are in registered form without coupons in denominations of $2,000 principal amount and any multiple of $1,000 in excess thereof. A Holder may register the transfer or exchange of Notes in accordance with the Indenture. The Trustee may require a Holder to furnish appropriate endorsements and transfer documents and to pay any taxes and fees required by law or permitted by the Indenture. Pursuant to the Indenture, there are certain periods during which the Trustee will not be required to issue, register the transfer of or exchange any Note or certain portions of a Note.







5.            Defaults and Remedies.







If an Event of Default, as defined in the Indenture, occurs and is continuing, the Trustee or the Holders of at least 25% in principal amount of the Notes may declare all the Notes to be due and payable. If a bankruptcy or insolvency default with respect to the Company occurs and is continuing, the Notes automatically become due and payable. Holders may not enforce the Indenture or the Notes except as provided in the Indenture. The Trustee may require indemnity satisfactory to it before it enforces the Indenture or the Notes. Subject to certain limitations, Holders of a majority in principal amount of the Notes then outstanding may direct the Trustee in its exercise of remedies.







6.            Amendment and Waiver.







Subject to certain exceptions, the Indenture and the Notes may be amended, or default may be waived, with the consent of the Holders of a majority in principal amount of the outstanding Notes. Without notice to or the consent of any Holder, the Company and the Trustee may amend or supplement




 




  





A-5











  






 


the Indenture or the Notes to, among other things, cure any ambiguity, defect or inconsistency if such amendment or supplement does not adversely affect the interests of the Holders in any material respect.







7.            Authentication.







This Note is not valid until the Trustee (or Authenticating Agent) signs the certificate of authentication on the other side of this Note.







8.            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 thereof.







9.            Abbreviations.







Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian) and U/G/M/A (= Uniform Gifts to Minors Act).







The Company will furnish a copy of the Indenture to any Holder upon written request and without charge.









  





A-6











  











[FORM OF TRANSFER NOTICE]












FOR VALUE RECEIVED the undersigned registered holder hereby sell(s), assign(s) and transfer(s) unto



















Insert Taxpayer Identification No.



















Please print or typewrite name and address including zip code of assignee







the within Note and all rights thereunder, hereby irrevocably constituting and appointing _________________ attorney to transfer said Note on the books of the Company with full power of substitution in the premises.



















  





A-7











  






 


[THE FOLLOWING PROVISION TO BE INCLUDED ON ALL CERTIFICATES


BEARING A RESTRICTED LEGEND]


 


In connection with any transfer of this Note occurring prior to ______________6 the undersigned confirms that such transfer is made without utilizing any general solicitation or general advertising and further as follows:


 


Check One


 



	
  

	
___

	
(1)

	
This Note is being transferred to a “qualified institutional buyer” in compliance with Rule 144A under the Securities Act of 1933, as amended and certification in the form of Exhibit F to the Indenture is being furnished herewith.







 



	
  

	
___

	
(2)

	
This Note is being transferred to a Non-U.S. Person in compliance with the exemption from registration under the Securities Act of 1933, as amended, provided by Regulation S thereunder, and certification in the form of Exhibit E to the Indenture is being furnished herewith.







 



	
  

	
or







 



	
  

	
___

	
(3)

	
This Note is being transferred other than in accordance with (1) or (2) 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 is not 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 the Indenture have been satisfied.


 



Date:  __________________________




 



	 	 
	 	
Seller


	 	 
	
By:     

	 
	 	
NOTICE:  The signature to this assignment must correspond with the name as written upon the face of the within-mentioned instrument in every particular, without altercation or any change whatsoever.







 


______________ 


	
6

	
One year after date of initial issuance or a later date when purchased from an affiliate







 






  





A-8











  






 





	
Signature Guarantee:7

	 





 



	
By:

	 
	 	
To be executed by an executive officer









 




 


 


______________




	
7

	
Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Registrar, which requirements include membership or participation in the Securities Transfer Association Medallion Program (“STAMP”) or such other “signature guarantee 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 wish to have all of this Note purchased by the Company pursuant to Section 4.09 or Section 4.10 of the Indenture, check the box:


 


If you wish to have a portion of this Note purchased by the Company pursuant to Section 4.09 or Section 4.10 of the Indenture, state the amount (in original principal amount) below:


 


$_____________________.


 


Date: _____________________________________


                                                               



 




	

Your Signature:



	 
	 	
(Sign exactly as your name appears on the other side of this Note)





 



	
Signature Guarantee:8

	 











 


______________ 


	
8

	
Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Trustee, which requirements include membership or participation in the Securities Transfer Association Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Trustee in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.







 






  





A-10











  











SCHEDULE OF EXCHANGES OF NOTES9


 


The following exchanges of a part of this Global Note for Certificated Notes or a part of another Global Note have been made:


 



	

Date of Exchange



	

Amount of decrease in principal amount of this Global Note



	

Amount of increase in principal amount of this Global Note



	

Principal amount of this Global Note following such decrease (or increase)



	

Signature of authorized signatory of Trustee




	  	  	  	  	  
	  	  	  	  	  
	  	  	  	  	  
	  	  	  	  	  





 




 


______________ 


	
9

	
For Global Notes.







 




 


 




  





A-11











  


 




EXHIBIT B


 


SUPPLEMENTAL INDENTURE


 


 


dated as of __________, ____


 


 


among


 


 


Ruby Tuesday, Inc.,


 


 


The Guarantor(s) Party Hereto


 


 


and




 


Wells Fargo Bank, National Association,


as Trustee


 


 


75⁄8% Senior Notes due 2020


 




  





B-1











  











THIS SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), entered into as of __________, ____, among Ruby Tuesday, Inc., a Georgia corporation (the “Company”), [insert each Guarantor executing this Supplemental Indenture and its jurisdiction of incorporation] (each an “Undersigned”) and Wells Fargo Bank, National Association, as trustee (the “Trustee”).


 


RECITALS


 


WHEREAS, the Company, the Guarantors party thereto and the Trustee entered into the Indenture, dated as of May 14, 2012 (the “Indenture”), relating to the Company’s 75⁄8% Senior Notes due 2020 (the “Notes”);


 


WHEREAS, as a condition to the Trustee entering into the Indenture and the purchase of the Notes by the Holders, the Company agreed pursuant to the Indenture to cause any newly acquired or created Restricted Subsidiary that guarantees or is a borrower under any Credit Facility or any capital markets debt to provide Guarantees in certain circumstances.


 


AGREEMENT


 


NOW, THEREFORE, in consideration of the premises and mutual covenants herein contained and intending to be legally bound, the parties to this Supplemental Indenture hereby agree as follows:


 


Section 1.  Capitalized terms used herein and not otherwise defined herein are used as defined in the Indenture.


 


Section 2.  Each Undersigned, by its execution of this Supplemental Indenture, agrees to be a Guarantor under the Indenture and to be bound by the terms of the Indenture applicable to Guarantors, including, but not limited to, Article 10 thereof.


 


Section 3.  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 thereof.


 


Section 4.  This Supplemental Indenture may be signed in various counterparts which together will constitute one and the same instrument.  The exchange of copies of this Supplemental Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Supplemental Indenture as to the parties hereto and may be used in lieu of the original Supplemental Indenture for all purposes.  Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.


 


Section 5.  This Supplemental Indenture is an amendment supplemental to the Indenture and the Indenture and this Supplemental Indenture will henceforth be read together.


 




  





B-2











  











IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first above written.


 




 








	 	




RUBY TUESDAY, INC., as Company









	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	

Name:



	 
	 	 	Title:	 










 


 








	 	





[GUARANTOR]











	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	

Name:



	 
	 	 	Title:	 







 















 








	 	





WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee











	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	

Name:



	 
	 	 	Title:	 





 


































  





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EXHIBIT C


 


RESTRICTED LEGEND


 


“THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND THE SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT:


 


(A)  SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY:


 


(I) (A) TO A PERSON WHO IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (B) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (C) OUTSIDE THE UNITED STATES TO A FOREIGN PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OF THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)) THAT, PRIOR TO SUCH TRANSFER, FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF NOTES LESS THAN $250,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE ISSUER THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, OR (E) 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),


 


(II) TO THE ISSUER, OR


 


(III) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT


 


AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND


 


(B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE. NO REPRESENTATION CAN BE MADE AS TO THE AVAILABILITY OF THE EXEMPTION PROVIDED BY RULE 144 FOR RESALE OF THE SECURITY EVIDENCED HEREBY.”


 


Each purchaser and transferee of a Note will be deemed to have represented by its purchase and holding of a Note that either (i) no portion of the assets used by such purchaser or transferee to acquire or hold the Notes constitutes assets of any employee benefit plan subject to Title I of ERISA, any plan, account or other arrangement subject to Section 4975 of the Code, or provisions under any Similar Laws, or any entity whose underlying assets are considered to include ‘‘plan assets’’ of any such plan, account or arrangement or (ii) the purchase and holding of the Notes by such purchaser or transferee will not constitute a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code or a violation under any applicable Similar Laws.


 




  





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EXHIBIT D


 


DTC LEGEND


 


UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.  OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS A BENEFICIAL INTEREST HEREIN.


 


TRANSFERS OF THIS GLOBAL NOTE ARE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO.  OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE ARE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE TRANSFER PROVISIONS OF THE INDENTURE.


 


 


 




  





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EXHIBIT E


 


Regulation S Certificate


 


_________, ____


 


Wells Fargo Bank, National Association


7000 Central Parkway NE


Suite 550


Atlanta, Georgia 30328


Attention:  Corporate Trust Services


 



	
  

	
Re:

	
Ruby Tuesday, Inc. (the “Company”) 

75⁄8% Senior Notes due 2020 (the “Notes”) 

Issued under the Indenture (the “Indenture”) 

dated as of May 14, 2012 relating to the Notes













 


Ladies and Gentlemen:


 


Terms are used in this Certificate as used in Regulation S (“Regulation S”) under the Securities Act of 1933, as amended (the “Securities Act”), except as otherwise stated herein.


 


[CHECK A OR B AS APPLICABLE.]


 



	
  

	
____

	
A.

	
This Certificate relates to our proposed transfer of $____ principal amount of Notes issued under the Indenture.  We hereby certify as follows:







 



	
  

	
1.

	
The offer and sale of the Notes was not and will not be made to a person in the United States (unless such person is excluded from the definition of “U.S. person” pursuant to Rule 902(k)(2)(vi) or the account held by it for which it is acting is excluded from the definition of “U.S. person” pursuant to Rule 902(k)(2)(i) under the circumstances described in Rule 902(h)(3)) and such offer and sale was not and will not be specifically targeted at an identifiable group of U.S. citizens abroad.







 



	
  

	
2.

	
Unless the circumstances described in the parenthetical in paragraph 1 above are applicable, either (a) at the time the buy order was originated, the buyer was outside the United States or we and any person acting on our behalf reasonably believed that the buyer 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 was pre-arranged with a buyer in the United States.







 



	
  

	
3.

	
Neither we, any of our affiliates, nor any person acting on our or their behalf has made any directed selling efforts in the United States with respect to the Notes.







 



	
  

	
4.

	
The proposed transfer of Notes is not part of a plan or scheme to evade the registration requirements of the Securities Act.







 





  





E-1











  








 




	
  

	
5.

	
If we are a dealer or a person receiving a selling concession, fee or other remuneration in respect of the Notes, and the proposed transfer takes place during the Restricted Period (as defined in the Indenture), or we are an officer or director of the Company or an Initial Purchaser (as defined in the Indenture), we certify that the proposed transfer is being made in accordance with the provisions of Rule 904(b) of Regulation S.







 



	
  

	
____

	
B.

	
This Certificate relates to our proposed exchange of $____ principal amount of Notes issued under the Indenture for an equal principal amount of Notes to be held by us.  We hereby certify as follows:







 



	
  

	
1.

	
At the time the offer and sale of the Notes was made to us, either (i) we were not in the United States or (ii) we were excluded from the definition of “U.S. person” pursuant to Rule 902(k)(2)(vi) or the account held by us for which we were acting was excluded from the definition of “U.S. person” pursuant to Rule 902(k)(2)(i) under the circumstances described in Rule 902(h)(3); and we were not a member of an identifiable group of U.S. citizens abroad.







 



	
  

	
2.

	
Unless the circumstances described in paragraph 1(ii) above are applicable, either (a) at the time our buy order was originated, we were outside the United States or (b) the transaction was executed in, on or through the facilities of a designated offshore securities market and we did not pre-arrange the transaction in the United States.







 



	
  

	
3.

	
The proposed exchange of Notes is not part of a plan or scheme to evade the registration requirements of the Securities Act.











  





E-2











  













You and the Company are entitled to rely upon this Certificate and are irrevocably authorized to produce this Certificate 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 SELLER (FOR TRANSFERS) OR OWNER (FOR EXCHANGES)]













	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	

Name:



	 
	 	 	Title:	 










 


















 


Date:  _________________


 


 


 




  





E-3











  


 




EXHIBIT F


 


Rule 144A Certificate


 


Wells Fargo Bank, National Association


7000 Central Parkway NE


Suite 550


Atlanta, Georgia 30328


Attention:  Corporate Trust Services


 



	
  

	
Re:

	
Ruby Tuesday, Inc. (the “Company”) 

75⁄8% Senior Notes due 2020 (the “Notes”) 

Issued under the Indenture (the “Indenture”) 

dated as of May 14, 2012 relating to the Notes













 


Ladies and Gentlemen:


 


TO BE COMPLETED BY PURCHASER IF (1) ABOVE IS CHECKED.


 


This Certificate relates to:


 


[CHECK A OR B AS APPLICABLE.]


 



	
  

	
____

	
A.

	
Our proposed purchase of $____ principal amount of Notes issued under the Indenture.







 



	
  

	
____

	
B.

	
Our proposed exchange of $____ principal amount of Notes issued under the Indenture for an equal principal amount of Notes to be held by us.







 


We and, if applicable, each account for which we are acting in the aggregate owned and invested more than $100,000,000 in securities of issuers that are not affiliated with us (or such accounts, if applicable), as of _________, 200_, which is a date on or since close of our most recent fiscal year.  We and, if applicable, each account for which we are acting, are a qualified institutional buyer within the meaning of Rule 144A (“Rule 144A”) under the Securities Act of 1933, as amended (the “Securities Act”).  If we are acting on behalf of an account, we exercise sole investment discretion with respect to such account.  We are aware that the transfer of Notes to us, or such exchange, as applicable, is being made in reliance upon the exemption from the provisions of Section 5 of the Securities Act provided by Rule 144A.  Prior to the date of this Certificate we have received such information regarding the Company as we have requested pursuant to Rule 144A(d)(4) or have determined not to request such information.


 




  





F-1











  











You and the Company are entitled to rely upon this Certificate and are irrevocably authorized to produce this Certificate 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 PURCHASER (FOR TRANSFERS) OR OWNER (FOR EXCHANGES)]















	 
	 	 	 	 
	
  

	
By: 

	 	 
	 	 	

Name:



	 
	 	 	Title:	 










 




















 


Date:  _________________


 


 


 




  





F-2











  






 


EXHIBIT G


 


Institutional Accredited Investor Certificate


 


Wells Fargo Bank, National Association (the “Trustee”)


7000 Central Parkway NE


Suite 550


Atlanta, Georgia 30328


Attention:  Corporate Trust Services


 



	
  

	
Re:

	
Ruby Tuesday, Inc. (the “Company”) 

75⁄8% Senior Notes due 2020 (the “Notes”) 

Issued under the Indenture (the “Indenture”) 

dated as of May 14, 2012 relating to the Notes













 


Ladies and Gentlemen:


 


This Certificate relates to:


 


[CHECK A OR B AS APPLICABLE.]


 



	
  

	
____

	
A.

	
Our proposed purchase of $____ principal amount of Notes issued under the Indenture.







 



	
  

	
____

	
B.

	
Our proposed exchange of $____ principal amount of Notes issued under the Indenture for an equal principal amount of Notes to be held by us.







 


We hereby confirm that:


 



	
  

	
1.

	
We are an institutional “accredited investor” within the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended (the “Securities Act”) (an “Institutional Accredited Investor”).







 



	
  

	
2.

	
Any acquisition of Notes by us will be for our own account or for the account of one or more other Institutional Accredited Investors as to which we exercise sole investment discretion.







 



	
  

	
3.

	
We have such knowledge and experience in financial and business matters that we are capable of evaluating the merits and risks of an investment in the Notes and we and any accounts for which we are acting are able to bear the economic risks of and an entire loss of our or their investment in the Notes.







 



	
  

	
4.

	
We are not acquiring the Notes with a view to any distribution thereof in a transaction that would violate the Securities Act or the securities laws of any State of the United States or any other applicable jurisdiction; provided that the disposition of our property and the property of any accounts for which we are acting as fiduciary will remain at all times within our and their control.







 



	
  

	
5.

	
We acknowledge that the Notes have not been registered under the Securities Act and that the Notes may not be offered or sold within the United States or to or for the benefit of U.S. persons except as set forth below.







 




  





G-1











  






 



	
  

	
6.

	
The principal amount of Notes to which this Certificate relates is at least equal to $250,000.







 


We agree for the benefit of the Company, on our own behalf and on behalf of each account for which we are acting, that such Notes may be offered, sold, pledged or otherwise transferred only in accordance with the Securities Act and any applicable securities laws of any State of the United States and only (a) to the Company and its subsidiaries (b) pursuant to a registration statement which has become effective under the Securities Act, (c) to a qualified institutional buyer in compliance with Rule 144A under the Securities Act, (d) in an offshore transaction in compliance with Rule 904 of Regulation S under the Securities Act, (e) in a principal amount of not less than $250,000, to an Institutional Accredited Investor that, prior to such transfer, delivers to the Trustee a duly completed and signed certificate (the form of which may be obtained from the Trustee) relating to the restrictions on transfer of the Notes or (f) pursuant to an exemption from registration provided by Rule 144 under the Securities Act or any other available exemption from the registration requirements of the Securities Act.


 


Prior to the registration of any transfer in accordance with (c) or (d) above, we acknowledge that a duly completed and signed certificate (the form of which may be obtained from the Trustee) must be delivered to the Trustee.  Prior to the registration of any transfer in accordance with (e) or (f) above, we acknowledge that the Company reserves the right to require the delivery of such legal opinions, certifications or other evidence as may reasonably be required in order to determine that the proposed transfer is being made in compliance with the Securities Act and applicable state securities laws.  We acknowledge that no representation is made as to the availability of any Rule 144 exemption from the registration requirements of the Securities Act.


 


We understand that the Trustee will not be required to accept for registration of transfer any Notes acquired by us, except upon presentation of evidence satisfactory to the Company and the Trustee that the foregoing restrictions on transfer have been complied with.  We further understand that the Notes acquired by us will be in the form of definitive physical certificates and that such certificates will bear a legend reflecting the substance of the preceding paragraph.  We further agree to provide to any person acquiring any of the Notes from us a notice advising such person that resales of the Notes are restricted as stated herein and that certificates representing the Notes will bear a legend to that effect.


 


We agree to notify you promptly in writing if any of our acknowledgments, representations or agreements herein ceases to be accurate and complete.


 


We represent to you that we have full power to make the foregoing acknowledgments, representations and agreements on our own behalf and on behalf of any account for which we are acting.


 




  





G-2











  











You and the Company are entitled to rely upon this Certificate and are irrevocably authorized to produce this Certificate 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 PURCHASER (FOR TRANSFERS) OR OWNER (FOR EXCHANGES)]

















	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	

Name:



	 
	 	 	Title:	 










 




















Date:  _________________




 


 


 




  





G-3











  











Upon transfer, the Notes would be registered in the name of the new beneficial owner as follows:


 


 




	
By:

	 	 





 



	
Date: 

	 	 





 



	
Taxpayer ID number:

	 	 







 


 


 




  





G-4











  






 


EXHIBIT H


 


[COMPLETE FORM I OR FORM II AS APPLICABLE.]


 


 


[FORM I]


 


Certificate of Beneficial Ownership


 



	
To:

	
Wells Fargo Bank, National Association








	
  

	
7000 Central Parkway NE








	
  

	
Suite 550








	
  

	
Atlanta, Georgia 30328








	
  

	
Attention:  Corporate Trust Services







 



	
  

	
[Name of DTC Participant]







 



	
  

	
Re:

	
Ruby Tuesday, Inc. (the “Company”)








	
  

	
75⁄8% Senior Notes due 2020 (the “Notes”)








	
  

	
Issued under the Indenture (the “Indenture”) 

dated as of May 14, 2012 relating to the Notes









 


Ladies and Gentlemen:


 


We are the beneficial owner of $____ principal amount of Notes issued under the Indenture and represented by a Temporary Offshore Global Note (as defined in the Indenture).


 


We hereby certify as follows:


 


[CHECK A OR B AS APPLICABLE.]


 



	
  

	
____

	
A.

	
We are a non-U.S. person (within the meaning of Regulation S under the Securities Act of 1933, as amended).







 



	
  

	
____

	
B.

	
We are a U.S. person (within the meaning of Regulation S under the Securities Act of 1933, as amended) that purchased the Notes in a transaction that did not require registration under the Securities Act of 1933, as amended.







 




  





H-1











  











You and the Company are entitled to rely upon this Certificate and are irrevocably authorized to produce this Certificate 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 BENEFICIAL OWNER]



















	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	

Name:



	 
	 	 	Title:	 
	 	 	Address:	 










 


















 


Date:  _________________


 


 


 




  





H-2











  


 




[FORM II]


 


Certificate of Beneficial Ownership


 



	
To:

	
Wells Fargo Bank, National Association








	
  

	
7000 Central Parkway NE








	
  

	
Suite 550








	
  

	
Atlanta, Georgia 30328








	
  

	
Attention:  Corporate Trust Services







 



	
  

	
Re:

	
Ruby Tuesday, Inc. (the “Company”)








	
  

	
75⁄8% Senior Notes due 2020 (the “Notes”)








	
  

	
Issued under the Indenture (the “Indenture”) 

dated as of May 14, 2012 relating to the Notes









 


Ladies and Gentlemen:


 


This is to certify that based solely on certifications we have received in writing, by tested telex or by electronic transmission from Institutions appearing in our records as persons being entitled to a portion of the principal amount of Notes represented by a Temporary Offshore Global Note issued under the above-referenced Indenture, that as of the date hereof, $____ principal amount of Notes represented by the Temporary Offshore Global Note being submitted herewith for exchange is beneficially owned by persons that are either (i) non-U.S. persons (within the meaning of Regulation S under the Securities Act of 1933, as amended) or (ii) U.S. persons that purchased the Notes in a transaction that did not require registration under the Securities Act of 1933, as amended.


 


We further certify that (i) we are not submitting herewith for exchange any portion of such Temporary Offshore Global Note excepted in such certifications and (ii) as of the date hereof we have not received any notification from any Institution to the effect that the statements made by such Institution with respect to any portion of such Temporary Offshore Global Note submitted herewith for exchange are no longer true and cannot be relied upon as of the date hereof.


 




  





H-3











  











You and the Company are entitled to rely upon this Certificate and are irrevocably authorized to produce this Certificate 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 DTC PARTICIPANT]





















	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	

Name:



	 
	 	 	Title:	 
	 	 	Address:	 










 


















 


Date:  _________________


 


 


 




  





H-4











  






 


EXHIBIT I


 


THIS NOTE IS A TEMPORARY GLOBAL NOTE.  PRIOR TO THE EXPIRATION OF THE RESTRICTED PERIOD APPLICABLE HERETO, BENEFICIAL INTERESTS HEREIN MAY NOT BE HELD BY ANY PERSON OTHER THAN (1) A NON-U.S. PERSON OR (2) A U.S. PERSON THAT PURCHASED SUCH INTEREST IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”).  BENEFICIAL INTERESTS HEREIN ARE NOT EXCHANGEABLE FOR PHYSICAL NOTES OTHER THAN A PERMANENT GLOBAL NOTE IN ACCORDANCE WITH THE TERMS OF THE INDENTURE.  TERMS IN THIS LEGEND ARE USED AS USED IN REGULATION S UNDER THE SECURITIES ACT.


 


NO BENEFICIAL OWNERS OF THIS TEMPORARY GLOBAL NOTE SHALL BE ENTITLED TO RECEIVE PAYMENT OF PRINCIPAL OR INTEREST HEREON UNTIL SUCH BENEFICIAL INTEREST IS EXCHANGED OR TRANSFERRED FOR AN INTEREST IN ANOTHER NOTE.


 







 


 


 


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