Exhibit
10.8


 


EXECUTION COPY


 




 





NEENAH PAPER, INC.


 


$225,000,000


 


73/8
% SENIOR NOTES DUE 2014


 










 


INDENTURE


 


Dated as of
November 30, 2004


 










 


THE BANK OF NEW
YORK TRUST COMPANY, N.A,


 


as Trustee




 





 





















 


This INDENTURE dated as of November 30, 2004, is by
and among Neenah Paper, Inc., a Delaware corporation, each Subsidiary Guarantor
listed on the signature pages hereto, and The Bank of New York Trust Company,
N.A., as trustee (the “Trustee”).


 


The Company, each Subsidiary Guarantor and the Trustee
agree as follows for the benefit of each other and for the equal and ratable
benefit of the Holders of the 73/8 % Senior Notes due
2014 (the “Notes”) issued under this Indenture:


 


ARTICLE 1.


 


DEFINITIONS
AND INCORPORATION BY REFERENCE


 


Section 1.01.                         Definitions.


 


For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:


 


“144A Global Note”
means a Global Note in the form of Exhibit A hereto bearing the Global Note
Legend and the Private Placement Legend and deposited with and registered in
the name of the Depositary or its nominee issued in a denomination equal to the
outstanding principal amount of the Notes sold for initial resale in reliance
on Rule 144A.


 


“Additional
Assets” means:


 


(a) any Property (other than cash, Cash
Equivalents and securities) to be owned by the Company or any Restricted
Subsidiary and used in a Related Business; or


 


(b) Capital Stock of a Person that becomes a
Restricted Subsidiary as a result of the acquisition of such Capital Stock by
the Company or another Restricted Subsidiary from any Person other than the
Company or an Affiliate of the Company; provided, however,
that, in the case of clause (b), such Restricted Subsidiary is primarily
engaged in a Related Business.


 


“Additional Notes”
means any Notes (other than Initial Notes, Exchange Notes and Notes issued
under Sections 2.06, 2.07, 2.10 and 3.06 hereof) issued under this Indenture in
accordance with Sections 2.02, 2.15 and 4.10 hereof, as part of the same
series as the Initial Notes or as an additional series.


 


“Affiliate” of any specified Person means:


 


(a) any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such specified Person, or


 


(b) any other Person who is a director or officer
of:


 


(1) such specified Person,


 


(2) any Subsidiary of such specified Person, or


 


(3) any Person described in clause (a)
above.


 


For the purposes of this definition, “control,” when
used with respect to any Person, means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms “controlling” and
“controlled” have meanings correlative to the foregoing.  For purposes of Section 4.13 and 4.15
and the definition of “Additional Assets” only, “Affiliate” shall also mean any
beneficial owner of shares representing 10% or more of the total voting power
of the Voting Stock (on a fully diluted basis) of the Company or of rights or
warrants to purchase such Voting Stock (whether or not currently


 





















 


exercisable) and any Person who would be an Affiliate
of any such beneficial owner pursuant to the first sentence hereof.


 


“Agent” means
any Registrar, co-registrar, Paying Agent or additional paying agent.


 


“Applicable Procedures”
means, with respect to any transfer, redemption or exchange of or for
beneficial interests in any Global Note, the rules and procedures of the
Depositary that apply to such transfer, redemption or exchange.


 


“Asset Sale”
means any sale, lease, transfer, issuance or other disposition (or series of
related sales, leases, transfers, issuances or dispositions) by the Company or
any Restricted Subsidiary, including any disposition by means of a merger,
consolidation or similar transaction (each referred to for the purposes of this
definition as a “disposition”), of


 


(a) any shares of Capital Stock of a Restricted
Subsidiary (other than directors’ qualifying shares), or


 


(b) any other Property of the Company or any Restricted
Subsidiary outside of the ordinary course of business of the Company or such
Restricted Subsidiary,


 


other than, in the case of clause (a) or (b) above,


 


(1) any disposition by a Restricted Subsidiary to
the Company or by the Company or a Restricted Subsidiary to a Wholly Owned
Restricted Subsidiary,


 


(2) any disposition of inventory in the ordinary
course of business,


 


(3) any disposition that constitutes a Permitted
Investment or Restricted Payment permitted by Section  4.11,


 


(4) any disposition effected in compliance with
the first paragraph of Section 5.01,


 


(5) any disposition in a single transaction or a
series of related transactions of assets for aggregate consideration of less
than $5.0 million, and


 


(6) any tendering to the Trustee for cancellation of
any Notes or Additional Notes acquired in open market transactions.


 


“Attributable Debt”
in respect of a Sale and Leaseback Transaction means, at any date of
determination,


 


(a) if such Sale and Leaseback Transaction is a
Capital Lease Obligation, the amount of Debt represented thereby according to
the definition of “Capital Lease Obligations,” and


 


(b) in all other instances, but solely for
purposes of Section 4.12, the greater of:


 


(1) the Fair Market Value of the Property subject to
such Sale and Leaseback Transaction, and


 


(2) the present value (discounted at the interest rate
borne by the Notes, compounded annually) of the total obligations of the lessee
for rental payments during the remaining term of the lease included in such
Sale and Leaseback Transaction (including any period for which such lease has
been extended).


 


2





















 


“Average Life”
means, as of any date of determination, with respect to any Debt or Preferred
Stock, the quotient obtained by dividing:


 


(a) the sum of the product of the numbers of
years (rounded to the nearest one-twelfth of one year) 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 Preferred Stock
multiplied by the amount of such payment by


 


(b) the sum of all such payments.


 


“Bankruptcy Law”
means Title 11, U.S. Code or any similar federal or state law for the relief of
debtors, the Bankruptcy and Insolvency Act
(Canada), the Companies’ Creditors Arrangement Act
(Canada) or any other Canadian federal or provincial law, or the law of any
other jurisdiction relating to bankruptcy, insolvency, winding up, liquidation,
reorganization or relief of debtors.


 


“Board of Directors”
means the board of directors of the Company.


 


“Board Resolution”
of a Person means a copy of a resolution certified by the secretary or an
assistant secretary (or individual performing comparable duties) of the
applicable Person to have been duly adopted by the Board of Directors of such
Person and to be in full force and effect on the date of such certification,
and delivered to the Trustee.


 


“Business Day”
means each day which is not a Saturday, a Sunday or a day on which commercial
banks are authorized or required to close in New York City.


 


“Capital Lease Obligations”
means any obligation under a lease that is required to be capitalized for
financial reporting purposes in accordance with GAAP; and the amount of Debt
represented by such obligation shall be the capitalized amount of such
obligation determined in accordance with GAAP; and the Stated Maturity thereof
shall be the date of the last payment of rent or any other amount due under
such lease prior to the first date upon which such lease may be terminated by
the lessee without payment of a penalty. 
For purposes of Section 4.12, a Capital Lease Obligation shall be deemed
secured by a Lien on the Property being leased.


 


“Capital Stock”
means, with respect to any Person, any shares or other equivalents (however
designated) of any class of corporate stock or partnership interests or any
other participations, rights, warrants, options or other interests in the
nature of an equity interest in such Person, including Preferred Stock, but
excluding any debt security convertible or exchangeable into such equity
interest.


 


“Capital
Stock Sale Proceeds” means the aggregate cash proceeds
received by the Company from the issuance or sale (other than to a Subsidiary
of the Company or an employee stock ownership plan or trust established by the
Company or any such Subsidiary for the benefit of their employees) by the
Company of its Capital Stock (other than Disqualified Stock) after the Issue
Date, net of attorneys’ fees, accountants’ fees, underwriters’ or placement
agents’ fees, discounts or commissions and brokerage, consultant and other fees
actually incurred in connection with such issuance or sale and net of taxes
paid or payable as a result thereof.


 


“Cash
Equivalents” means any of the
following:


 


(a) Investments in U.S. Government
Obligations maturing within 365 days of the date of acquisition thereof;


 


(b) Investments in time deposit accounts,
certificates of deposit and money market deposits maturing within one year of
the date of acquisition thereof issued by a bank or trust company organized
under the laws of the United States of America or any state thereof or the
District of Columbia having, at the date of acquisition thereof, combined
capital, surplus and undivided profits aggregating in excess of
$500.0 million and whose long-term debt is rated “A-3” or “A-” or


 


3





















 


higher according to Moody’s or S&P (or such
similar equivalent rating by at least one “nationally recognized statistical
rating organization” (as defined in Rule 436 under the Securities Act));


 


(c) repurchase obligations with a term of not more
than 30 days for underlying securities of the types described in clause
(a) entered into with:


 


(1) a bank meeting the qualifications described
in clause (b) above, or


 


(2) any primary government securities dealer
reporting to the Market Reports Division of the Federal Reserve Bank of New
York;


 


(d) Investments in commercial paper, maturing not
more than one year after the date of acquisition, issued by a corporation
(other than an Affiliate of the Company) organized and in existence under the
laws of the United States of America with a rating at the time as of which
any Investment therein is made of “P-1” (or higher) according to Moody’s or “A-1”
(or higher) according to S&P (or such similar equivalent rating by at least
one “nationally recognized statistical rating organization” (as defined in
Rule 436 under the Securities Act));


 


(e) direct obligations (or certificates representing
an ownership interest in such obligations) of any state of the United States of
America (including any agency or instrumentality thereof) for the payment of
which the full faith and credit of such state is pledged and which are not
callable or redeemable at the issuer’s option, provided
that:


 


(1) the long-term debt of such state is rated “A-3”
or “A-” or higher according to Moody’s or S&P (or such similar equivalent
rating by at least one “nationally recognized statistical rating organization”
(as defined in Rule 436 under the Securities Act)), and


 


(2) such
obligations mature within one year of the date of acquisition thereof; and


 


(f) Investments in money market funds which
invest substantially all of their assets in securities of the type described in
clauses (a) through (e) above.


 


“Change of Control”
means the occurrence, after the consummation of the Spin-Off, of any of the
following events:


 


(a) any “person” or “group” (as such terms are
used in Sections 13(d) and 14(d) of the Exchange Act or any successor
provisions to either of the foregoing), including any group acting for the
purpose of acquiring, holding, voting or disposing of securities within the
meaning of Rule 13d-5(b)(1) under the Exchange Act, becomes the “beneficial
owner” (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of 50% or more of the total voting power of the Voting Stock of the
Company (for purposes of this clause (a), such person or group shall be
deemed to beneficially own any Voting Stock of a corporation held by any other
corporation (the “parent corporation”) so long as such person or group
beneficially owns, directly or indirectly, in the aggregate at least a majority
of the total voting power of the Voting Stock of such parent corporation); or


 


(b) the sale, transfer, assignment, lease,
conveyance or other disposition, directly or indirectly, of all or
substantially all the Property of the Company and the Restricted Subsidiaries,
considered as a whole (other than a disposition of such Property as an entirety
or virtually as an entirety to a Wholly Owned Restricted Subsidiary), shall
have occurred, or the Company merges, consolidates or amalgamates with or into
any other Person or any other Person merges, consolidates or amalgamates with
or into the Company, in any such event pursuant to a transaction in which the
outstanding Voting Stock of the Company is reclassified into or exchanged for
cash, securities or other Property, other than any such transaction where:


 


4





















 


(1) the outstanding Voting Stock of the Company
is reclassified into or exchanged for other Voting Stock of the Company or for
Voting Stock of the Surviving Person, and


 


(2) the holders of the Voting Stock of the
Company immediately prior to such transaction own, directly or indirectly, not
less than a majority of the Voting Stock of the Company or the Surviving Person
immediately after such transaction and in substantially the same proportion as
before the transaction; or


 


(c) during any period of two consecutive years,
individuals who at the beginning of such period constituted the Board of
Directors (together with any new directors whose election or appointment by
such Board of Directors or whose nomination for election by the shareholders of
the Company was approved by a vote of not less than three-fourths of the
directors then still in office who were either directors at the beginning of
such period or whose election or nomination for election was previously so
approved) cease for any reason to constitute at least a majority of the Board
of Directors then in office; or


 


(d) the shareholders of the Company shall have
approved any plan of liquidation or dissolution of the Company.


 


“Code” means the U.S. Internal
Revenue Code of 1986, as amended.


 


“Commission” means
the U.S. Securities and Exchange Commission.


 


“Commodity Price Protection Agreement”
means, in respect of a Person, any forward contract, commodity swap agreement,
commodity option agreement or other similar agreement or arrangement designed
to protect such Person against fluctuations in commodity prices.


 


“Company” means Neenah Paper,
Inc., and any successor thereto.


 


“Comparable Treasury Issue” means
the United States treasury security selected by the Reference Treasury Dealer
as having a maturity closest to November 15, 2009 that would be utilized, at
the time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to
November 15, 2009.


 


“Comparable Treasury Price”
means, with respect to the Change of Control Redemption Date:


 


(a) the average of the bid and ask prices for the
Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) on the third Business Day preceding the Change of Control
Redemption Date, as set forth in the most recently published statistical
release designated “H.15(519)” (or any successor release) published by the
Board of Governors of the Federal Reserve System and which establishes yields
on actively traded United States treasury securities adjusted to constant
maturity under the caption “Treasury Constant Maturities,” or


 


(b) if
such release (or any successor release) is not published or does not contain
such prices on such Business Day, the Reference Treasury Dealer Quotation for
the Change of Control Redemption Date.


 


“Consolidated Current
Liabilities” means, as of any date of determination, the aggregate
amount of liabilities of the Company and its consolidated Restricted
Subsidiaries which may properly be classified as current liabilities (including
taxes accrued as estimated), after eliminating:


 


(a) all intercompany items between the Company and any
Restricted Subsidiary or between Restricted Subsidiaries, and


 


(b) all current maturities of long-term Debt.


 


5





















 


“Consolidated Interest Coverage Ratio”
means, as of any date of determination, the ratio of:


 


(a) the aggregate amount of EBITDA for the most
recent four consecutive fiscal quarters for which financial statements are
publicly available, to


 


(b) Consolidated Interest Expense for such four
fiscal quarters; 


 


provided,
however, that:


 


(1) if


 


(A) since the beginning of such period the
Company or any Restricted Subsidiary has Incurred any Debt that remains outstanding
or Repaid any Debt, or


 


(B) the transaction giving rise to the need to
calculate the Consolidated Interest Coverage Ratio is an Incurrence or
Repayment of Debt,


 


Consolidated
Interest Expense for such period shall be calculated after giving effect on a pro forma basis to such Incurrence or Repayment as if such
Debt was Incurred or Repaid on the first day of such period, provided that, in the event of any such Repayment of Debt,
EBITDA for such period shall be calculated as if the Company or such Restricted
Subsidiary had not earned any interest income actually earned during such
period in respect of the funds used to Repay such Debt, and


 


(2) if


 


(A) since the beginning of such period the
Company or any Restricted Subsidiary shall have made any Asset Sale or an
Investment (by merger or otherwise) in any Restricted Subsidiary (or any Person
which becomes a Restricted Subsidiary) or an acquisition of Property which
constitutes all or substantially all of an operating unit of a business,


 


(B) the transaction giving rise to the need to
calculate the Consolidated Interest Coverage Ratio is such an Asset Sale,
Investment or acquisition, or


 


(C) since the beginning of such period any Person
(that subsequently became a Restricted Subsidiary or was merged with or into
the Company or any Restricted Subsidiary since the beginning of such period)
shall have made such an Asset Sale, Investment or acquisition,


 


then
EBITDA for such period shall be calculated after giving pro forma
effect to such Asset Sale, Investment or acquisition as if such Asset Sale,
Investment or acquisition had occurred on the first day of such period.


 


If any Debt bears a floating rate of interest and is
being given pro forma effect, the interest expense
on such Debt shall be calculated as if the base interest rate in effect for
such floating rate of interest on the date of determination had been the
applicable base interest rate for the entire period (taking into account any
Interest Rate Agreement applicable to such Debt if such Interest Rate Agreement
has a remaining term in excess of 12 months).  In the event the Capital Stock of any
Restricted Subsidiary is sold during the period, the Company shall be deemed,
for purposes of clause (1) above, to have Repaid during such period the
Debt of such Restricted Subsidiary to the extent the Company and its continuing
Restricted Subsidiaries are no longer liable for such Debt after such sale.


 


6





















 


“Consolidated Interest
Expense” means, for any period, the total interest expense of the
Company and its consolidated Restricted Subsidiaries, plus, to the extent not
included in such total interest expense, and to the extent Incurred by the
Company or its Restricted Subsidiaries,


 


(a) interest expense attributable to Capital
Lease Obligations (including any Capital Lease Obligation Incurred in
connection with a Sale and Leaseback Transaction),


 


(b) amortization of debt discount and debt
issuance cost, including commitment fees,


 


(c) capitalized interest,


 


(d) non-cash interest expense,


 


(e) commissions, discounts and other fees and
charges owed with respect to letters of credit and banker’s acceptance
financing,


 


(f) net costs associated with Hedging Obligations
(including amortization of fees),


 


(g) Disqualified Stock Dividends to the extent
made to Persons other than the Company or a Restricted Subsidiary,


 


(h) Preferred Stock Dividends to the extent made
to Persons other than the Company or a Restricted Subsidiary,


 


(i) interest Incurred in connection with Investments
in discontinued operations,


 


(j) interest accruing on any Debt of any other
Person to the extent such Debt is Guaranteed by the Company or any Restricted
Subsidiary, and


 


(k) the cash contributions to any employee stock
ownership plan or similar trust to the extent such contributions are used by
such plan or trust to pay interest or fees to any Person (other than the
Company) in connection with Debt Incurred by such plan or trust.


 


“Consolidated Net Income”
means, for any period, the net income (loss) of the Company and its
consolidated Restricted Subsidiaries; provided, however,
that there shall not be included in such Consolidated Net Income:


 


(a) any net income (loss) of any Person (other
than the Company) if such Person is not a Restricted Subsidiary, except that:


 


(1) subject
to the exclusion contained in clause (c) below, equity of the Company and
its consolidated Restricted Subsidiaries in the net income of any such Person
for such period shall be included in such Consolidated Net Income up to the
aggregate amount of cash distributed by such Person during such period to the
Company or a Restricted Subsidiary as a dividend or other distribution
(subject, in the case of a dividend or other distribution to a Restricted
Subsidiary, to the limitations contained in clause (b) below), and


 


(2) the
equity of the Company and its consolidated Restricted Subsidiaries in a net
loss of any such Person other than an Unrestricted Subsidiary for such period
shall be included in determining such Consolidated Net Income,


 


(b) any net income (loss) of any Restricted Subsidiary
if such Restricted Subsidiary is subject to restrictions, directly or
indirectly, on the payment of dividends or the making of distributions,
directly or indirectly, to the Company, except that:


 


7





















 


(1)
subject to the exclusion contained in clause (c) below, the equity of the
Company and its consolidated Restricted Subsidiaries in the net income of any
such Restricted Subsidiary for such period shall be included in such
Consolidated Net Income up to the aggregate amount of cash distributed by such
Restricted Subsidiary during such period to the Company or another Restricted
Subsidiary as a dividend or other distribution (subject, in the case of a dividend
or other distribution to another Restricted Subsidiary, to the limitation
contained in this clause), and


 


(2)
the equity of the Company and its consolidated Restricted Subsidiaries in a net
loss of any such Restricted Subsidiary for such period shall be included in
determining such Consolidated Net Income,


 


(c) any gain or loss realized upon the sale or
other disposition of any Property of the Company or any of its consolidated
Subsidiaries (including pursuant to any Sale and Leaseback Transaction) that is
not sold or otherwise disposed of in the ordinary course of business,


 


(d) any extraordinary gain or loss,


 


(e) the impairment charge relating to the Terrace Bay
pulp facility described in the Offering Memorandum,


 


(f) the cumulative effect of a change in accounting
principles,


 


(g) any non-cash compensation expense realized
for grants of performance shares, stock options or other rights to officers,
directors and employees of the Company or any Restricted Subsidiary, provided that such shares, options or other rights can be
redeemed at the option of the holder only for Capital Stock of the Company
(other than Disqualified Stock), and


 


(h) any losses of Neenah and Menasha Water Power
Company to the extent paid from funds contributed by Kimberly-Clark into a
separate account of Neenah and Menasha Water Power Company prior to the
Spin-Off.


 


Notwithstanding the foregoing, for purposes of Section
4.11 only, there shall be excluded from Consolidated Net Income any dividends,
repayments of loans or advances or other transfers of Property from
Unrestricted Subsidiaries to the Company or a Restricted Subsidiary to the
extent such dividends, repayments or transfers increase the amount of
Restricted Payments permitted under Section 4.11 pursuant to clause (c)(4)
thereof.


 


“Consolidated Tangible
Assets” means, as of any date of
determination, the sum of the amounts that would appear on a consolidated
balance sheet of the Company and its consolidated Restricted Subsidiaries as
the total assets of the Company and its Restricted Subsidiaries, excluding
goodwill, patents, trade names, trademarks, copyrights, franchises,
experimental expense, organization expense and any other assets properly
classified as intangible assets in accordance with GAAP, determined in accordance
with GAAP.


 


“Corporate Trust Office of
the Trustee” shall be at the address of the Trustee specified in
Section 12.02 hereof, or such other address as to which the Trustee may give
notice to the Company.


 


“Credit Facilities”
means, with respect to the Company or any Restricted Subsidiary, one or more
debt or commercial paper facilities with banks or other institutional lenders
(including the New Credit Facility) providing for revolving credit loans, term
loans, receivables or inventory financing (including through the sale of
receivables or inventory to such lenders or to special purpose, bankruptcy
remote entities formed to borrow from such lenders against such receivables or
inventory) or trade letters of credit, in each case together with any Refinancings
thereof by a lender or syndicate of lenders.


 


8





















 


“Currency Exchange
Protection Agreement” means, in respect of a Person, any foreign
exchange contract, currency swap agreement, currency option or other similar
agreement or arrangement designed to protect such Person against fluctuations
in currency exchange rates.


 


“Custodian”
means, with respect to the Notes issuable or issued in whole or in part in
global form, the Person specified in Section 2.03(c) as Custodian with respect
to the Notes, and any and all successors thereto appointed as custodian
hereunder and having become such pursuant to the applicable provisions of this
Indenture.


 


“Debt” means,
with respect to any Person on any date of determination (without duplication):


 


(a) the principal of and premium (if any) in
respect of:


 


(1) debt of such Person for money borrowed, and


 


(2) debt
evidenced by notes, debentures, bonds or other similar instruments for the
payment of which such Person is responsible or liable;


 


(b) all Capital Lease Obligations of such Person;


 


(c) all obligations of such Person representing the
deferred purchase price of Property, all conditional sale obligations of such
Person and all obligations of such Person under any title retention agreement
(but excluding trade accounts payable arising in the ordinary course of
business);


 


(d) all obligations of such Person for the
reimbursement of any obligor on any letter of credit, banker’s acceptance or
similar credit transaction (other than obligations with respect to letters of
credit securing obligations (other than obligations described in (a) through
(c) above) entered into in the ordinary course of business of such Person to
the extent such letters of credit are not drawn upon or, if and to the extent
drawn upon, such drawing is reimbursed no later than the third Business Day
following receipt by such Person of a demand for reimbursement following
payment on the letter of credit);


 


(e) the amount of all obligations of such Person with
respect to the Repayment of any Disqualified Stock or, with respect to any
Subsidiary of such Person, any Preferred Stock (but excluding, in each case,
any accrued dividends);


 


(f) all obligations of the type referred to in
clauses (a) through (e) above of other Persons and all dividends of other
Persons for the payment of which, in either case, such Person is responsible or
liable, directly or indirectly, as obligor, guarantor or otherwise, including
by means of any Guarantee;


 


(g) all obligations of the type referred to in
clauses (a) through (f) above of other Persons secured by any Lien on any
Property of such Person (whether or not such obligation is assumed by such
Person), the amount of such obligation being deemed to be the lesser of the Fair
Market Value of such Property and the amount of the obligation so secured; and


 


(h) to the extent not otherwise included in this
definition, Hedging Obligations of such Person.


 


The amount of Debt of any Person at any date shall be
the outstanding balance, or the accreted value of such Debt in the case of Debt
issued with original issue discount, at such date of all unconditional
obligations as described above and the maximum liability, upon the occurrence
of the contingency giving rise to the obligation, of any contingent obligations
at such date.  The amount of Debt
represented by a Hedging Obligation shall be equal to:


 


9





















 


(1) zero if such Hedging Obligation has been
Incurred pursuant to clause (e), (f) or (g) of the second paragraph of Section
4.10, or


 


(2) the notional amount of such Hedging
Obligation if not Incurred pursuant to such clauses.


 


Notwithstanding the
foregoing, Debt shall not include (a) any endorsements for collection or
deposits in the ordinary course of business, (b) any realization of a Permitted
Lien, (c) Debt that has been defeased or satisfied in accordance with the terms
of the documents governing such Debt, (d) any Debt between any of the Company,
its Restricted Subsidiaries and Kimberly-Clark existing on the Issue Date that
is extinguished on or prior to the consummation of the Spin-Off or (e) any
liabilities not required to be reflected as debt on the Company’s balance sheet
in accordance with GAAP that are assumed by the Company or any Restricted
Subsidiary as contemplated by the Distribution Agreement in connection with the
contribution of assets by Kimberly-Clark or an affiliate thereof to the Company
or a Restricted Subsidiary prior to the consummation of the Spin-Off.


 


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


 


“Definitive Note”
means a certificated Note registered in the name of the Holder thereof and
issued in accordance with Section 2.06 or 2.10 hereof, in substantially the
form of Exhibit A hereto, except that such Note shall not bear the Global Note
Legend and shall not have the “Schedule of Exchanges of Interests in the Global
Note” attached thereto.


 


“Depositary”
means, with respect to the Notes issuable or issued in whole or in part in
global form, the Person specified in Section 2.03(b) hereof as the Depositary
with respect to the Notes, and any and all successors thereto appointed as
depositary hereunder and having become such pursuant to the applicable provisions
of this Indenture.


 


“Disqualified Stock”
means any Capital Stock of the Company or any of its Restricted Subsidiaries
that by its terms (or by the terms of any security into which it is convertible
or for which it is exchangeable, in either case at the option of the holder
thereof) or otherwise:


 


(a) matures or is mandatorily redeemable pursuant
to a sinking fund obligation or otherwise,


 


(b) is or may become redeemable or repurchaseable
at the option of the holder thereof, in whole or in part, or


 


(c) is convertible or exchangeable at the option
of the holder thereof for Debt or Disqualified Stock,


 


on or prior to, in the case of clause (a), (b) or
(c), 180 days after the Stated Maturity of the Notes.


 


“Disqualified Stock
Dividends” means all dividends with respect to Disqualified Stock of
the Company held by Persons other than a Wholly Owned Restricted
Subsidiary.  The amount of any such
dividend shall be equal to the quotient of such dividend divided by the difference
between one and the maximum statutory federal income tax rate (expressed as a
decimal number between 1 and 0) then applicable to the Company.


 


“Distribution Agreement”
means the Distribution Agreement, dated as of November 30, 2004, between
Kimberly-Clark and the Company.


 


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


 


10





















 


“Domestic Restricted
Subsidiary” means any Restricted Subsidiary other than (a) a Foreign
Restricted Subsidiary or (b) a Subsidiary of a Foreign Restricted
Subsidiary.


 


“EBITDA” means,
for any period, an amount equal to, for the Company and its consolidated
Restricted Subsidiaries:


 


(a) the sum of Consolidated Net Income for such
period, plus the following to the extent reducing Consolidated Net Income for
such period:


 


(1) the provision for taxes based on income or
profits or utilized in computing net loss,


 


(2) Consolidated Interest Expense,


 


(3) depreciation,


 


(4) amortization,


 


(5) any
other non-cash items (other than any such non-cash item to the extent that it
represents an accrual of, or reserve for, cash expenditures in any future
period),


 


(6) any non-recurring fees, charges or other expenses
that are related to the Spin-Off, and


 


(7)
any non-recurring fees, charges or other expenses related to the restructuring
or permanent closure of any operating facility, minus


 


(b) all non-cash items increasing Consolidated
Net Income for such period (other than any such non-cash item to the extent
that it will result in the receipt of cash payments in any future period).


 


Notwithstanding the foregoing clause (a), the
provision for taxes and the depreciation, amortization and non-cash items of a
Restricted Subsidiary shall be added to Consolidated Net Income to compute EBITDA
only to the extent (and in the same proportion) that the net income of such
Restricted Subsidiary was included in calculating Consolidated Net Income and
only if a corresponding amount would be permitted at the date of determination
to be dividended to the Company by such Restricted Subsidiary without prior
approval (that has not been obtained), pursuant to the terms of its charter and
all agreements, instruments, judgments, decrees, orders, statutes, rules and
governmental regulations applicable to such Restricted Subsidiary or its
shareholders.


 


“Equity Offering”
means an offering of Capital Stock of the Company (but excluding any
Disqualified Stock).


 


“Exchange Act”
means the Securities Exchange Act of 1934, as amended.


 


“Exchange Notes”
means Notes issued in exchange for the Initial Notes or any Additional Notes
pursuant to a Registration Rights Agreement.


 


“Exchange Offer
Registration Statement” has the meaning set forth in a Registration
Rights Agreement.


 


“Fair Market Value”
means, with respect to any Property, the price that could be negotiated in an
arm’s-length free market transaction, for cash, between a willing seller and a
willing buyer, neither of whom is under undue pressure or compulsion to
complete the transaction.  Fair Market
Value shall be determined, except as otherwise provided,


 


(a) if such Property has a Fair Market Value equal to
or less than $20.0 million, by any Officer of the Company, or


 


11





















 


(b) if such Property has a Fair Market Value in excess
of $20.0 million, by at least a majority of the Board of Directors and
evidenced by a Board Resolution, dated within 30 days of the relevant
transaction and delivered to the Trustee.


 


“Foreign Restricted Subsidiary”
means any Restricted Subsidiary which is not organized under the laws of the
United States of America or any State thereof or the District of Columbia.


 


“GAAP” means
United States generally accepted accounting principles as in effect on the
Issue Date, including those set forth in:


 


(a) the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants,


 


(b) the statements and pronouncements of the Financial
Accounting Standards Board,


 


(c) such other statements by such other entity as
approved by a significant segment of the accounting profession, and


 


(d) the rules and regulations of the Commission
governing the inclusion of financial statements (including pro forma financial
statements) in periodic reports required to be filed pursuant to Section 13 of
the Exchange Act, including opinions and pronouncements in staff accounting
bulletins and similar written statements from the accounting staff of the
Commission.


 


All ratios and computations
based on GAAP contained in this Indenture will be computed in conformity with
GAAP.


 


“Global Note Legend”
means the legend set forth in Section 2.06(g)(ii), which is required to be
placed on all Global Notes issued under this Indenture.


 


“Global Notes”
means the global Notes in the form of Exhibit A hereto issued in accordance
with Article 2 hereof.


 


“Guarantee”
means any obligation, contingent or otherwise, of any Person directly or
indirectly guaranteeing any Debt of any other Person and any obligation, direct
or indirect, contingent or otherwise, of such Person:


 


(a) 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 agreements to keep-well, to purchase
assets, goods, securities or services, to take-or-pay or to maintain financial
statement conditions or otherwise), or


 


(b) entered into for the purpose of assuring in
any other manner the obligee against loss in respect thereof (in whole or in
part); 


 


provided, however, that the term “Guarantee”
shall not include:


 


(1) endorsements for collection or deposit in the
ordinary course of business, or


 


(2) a
contractual commitment by one Person to invest in another Person for so long as
such Investment is reasonably expected to constitute a Permitted Investment
under clause (a), (b) or (c) of the definition of “Permitted Investment.”


 


The term “Guarantee” used as a verb has a
corresponding meaning.  The term “Subsidiary
Guarantor” shall mean any Person Guaranteeing any obligation.


 


12





















 


“Hedging Obligation”
of any Person means any obligation of such Person pursuant to any Interest Rate
Agreement, Currency Exchange Protection Agreement, Commodity Price Protection
Agreement or any other similar agreement or arrangement.


 


“Holder” means a
Person in whose name a Note is registered in the Security Register.


 


“IAI Global Note”
means a Global Note in the form of Exhibit A hereto bearing the Global Note
Legend and the Private Placement Legend and deposited with and registered in
the name of the Depositary or its nominee issued in a denomination equal to the
outstanding principal amount of the Notes sold to Institutional Accredited
Investors, if any, to the extent required by the Applicable Procedures.


 


“Incur” means,
with respect to any Debt or other obligation of any Person, to create, issue,
incur (by merger, conversion, exchange or otherwise), extend, assume, Guarantee
or become liable in respect of such Debt or other obligation or the recording,
as required pursuant to GAAP or otherwise, of any such Debt or obligation on
the balance sheet of such Person (and “Incurrence” and “Incurred” shall have
meanings correlative to the foregoing); provided, however,
that a change in GAAP that results in an obligation of such Person that exists
at such time, and is not theretofore classified as Debt, becoming Debt shall
not be deemed an Incurrence of such Debt; provided further,
however, that any Debt or other
obligations of a Person existing at the time such Person becomes a Subsidiary
(whether by merger, consolidation, acquisition or otherwise) shall be deemed to
be Incurred by such Subsidiary at the time it becomes a Subsidiary; and provided further, however, that solely for purposes of
determining compliance with Section 4.10, amortization of debt discount shall
not be deemed to be the Incurrence of Debt, provided that
in the case of Debt sold at a discount, the amount of such Debt Incurred shall
at all times be the aggregate principal amount at Stated Maturity.


 


“Indenture”
means this instrument, as originally executed or as it may from time to time be
supplemented or amended in accordance with Article 9 hereof.


 


“Independent Financial
Advisor” means an investment banking firm of national standing or any
third party appraiser of national standing, provided that
such firm or appraiser is not an Affiliate of the Company.


 


“Indirect Participant”
means a Person who holds a beneficial interest in a Global Note through a
Participant.


 


“Initial Notes”
means $225,000,000 aggregate principal amount of Notes issued under this
Indenture on the Issue Date.


 


“Institutional Accredited
Investor” means an institution that is an “accredited investor” as
defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act.


 


“Interest Payment Dates” shall have the meaning set forth in
paragraph 1 of each Note.


 


“Interest Rate Agreement”
means, for any Person, any interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement or other similar agreement designed
to protect against fluctuations in interest rates.


 


“Investment” by
any Person means any direct or indirect loan (other than advances to customers
in the ordinary course of business that are recorded as accounts receivable on
the balance sheet of such Person), advance or other extension of credit or
capital contribution (by means of transfers of cash or other Property to others
or payments for Property or services for the account or use of others, or
otherwise) to, or Incurrence of a Guarantee of any obligation of, or purchase
or acquisition of Capital Stock, bonds, notes, debentures or other securities
or evidence of Debt issued by, any other Person.  For purposes of Section 4.11 and Section 4.17
and the definition of “Restricted Payment,”  the term “Investment” shall
include the portion (proportionate to the Company’s equity interest in such
Subsidiary) of the Fair Market Value of the net assets of any Subsidiary of the
Company at the time that such Subsidiary is designated an Unrestricted Subsidiary;
provided, however, that upon a
redesignation of such


 


13





















 


Subsidiary as a Restricted Subsidiary, the Company shall be deemed to
continue to have a permanent “Investment” in an Unrestricted Subsidiary of 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.


 


In determining the amount of any Investment made by
transfer of any Property other than cash, such Property shall be valued at its
Fair Market Value at the time of such Investment.


 


“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.


 


“Issue Date”
means November 30, 2004.


 


“Kimberly-Clark” means
Kimberly-Clark Corporation.


 


“Legal Holiday”
means a Saturday, a Sunday or a day on which commercial banks are authorized or
required to close in New York City.


 


“Letter of Transmittal”
means the letter of transmittal, or its electronic equivalent in accordance
with the Applicable Procedures, to be prepared by the Company and sent to all
Holders of the Initial Notes or any Additional Notes for use by such Holders in
connection with a Registered Exchange Offer.


 


“Lien” means,
with respect to any Property of any Person, any mortgage or deed of trust,
pledge, hypothecation, assignment, deposit arrangement, security interest,
lien, charge, easement (other than any easement not materially impairing
usefulness or marketability), encumbrance, preference, priority or other
security agreement or preferential arrangement of any kind or nature whatsoever
on or with respect to such Property (including any Capital Lease Obligation,
conditional sale or other title retention agreement having substantially the
same economic effect as any of the foregoing or any Sale and Leaseback
Transaction).


 


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


 


“Net Available Cash”
from any Asset Sale means cash payments received therefrom (including any cash
payments received by way of deferred payment of principal pursuant to a note or
installment receivable or otherwise, but only as and when received, but
excluding any other consideration received in the form of assumption by the
acquiring Person of Debt or other obligations relating to the Property that is
the subject of such Asset Sale or received in any other non-cash form), in each
case net of:


 


(a) all legal, title and recording tax expenses,
commissions and other fees and expenses incurred, and all Federal, state,
provincial, foreign and local taxes required to be accrued as a liability under
GAAP, as a consequence of such Asset Sale;


 


(b) all payments made on or in respect of any
Debt that is secured by any Property subject to such Asset Sale, in accordance
with the terms of any Lien upon such Property, or which must by its terms, or
in order to obtain a necessary consent to such Asset Sale, or by applicable
law, be repaid out of the proceeds from such Asset Sale;


 


(c) all distributions and other payments required
to be made to minority interest holders in Subsidiaries or joint ventures as a
result of such Asset Sale;


 


(d) the deduction of appropriate amounts provided
by the seller as a reserve, in accordance with GAAP, against any liabilities
associated with the Property disposed of in such


 


14





















 


Asset Sale and retained by the Company or any
Restricted Subsidiary after such Asset Sale, including pension and other
post-employment benefit liabilities, liabilities related to environmental
matters and liabilities under any indemnification obligations associated with
such Asset Sale; and


 


(e) payments of unassumed liabilities (other than
Subordinated Obligations) relating to the assets sold at the time of, or within
30 days after, the date of such Asset Sale.


 


“New Credit Facility” means the Credit Agreement, to be entered into
on or prior to the Issue Date, among the Company, the Subsidiary Guarantors,
the financial institutions party thereto, JPMorgan Chase Bank, as agent, and
JPMorgan Chase Bank, Toronto, as Canadian collateral agent, as the same may be
amended, supplemented, refinanced or otherwise modified from time to time.


 


“Non-Recourse Debt,” means
Debt:


 


(a) as to which neither the Company nor any Restricted Subsidiary (i)
provides credit support of any kind (including any undertaking, agreement or
instrument that would constitute Debt), (ii) is directly or indirectly liable
as a guarantor or otherwise or (iii) constitutes the lender;


 


(b) no default with respect to which (including any rights that the
holders thereof may have to take enforcement action against an Unrestricted
Subsidiary) would permit upon notice, lapse of time or both any holder of any
Debt (other than the Notes) of the Company or any Restricted Subsidiary to
declare a default on such other Debt or cause the payment thereof to be
accelerated or payable prior to its stated maturity; and


 


(c) as to which the lenders have been notified in writing that they will
not have any recourse to the stock or assets of the Company or any Restricted
Subsidiary.


 


“Obligations”
means all obligations for principal, premium, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Debt.


 


“Offering
Memorandum” means the offering memorandum, dated November 18,
2004, relating to the Initial Notes.


 


“Officer” means
the Chief Executive Officer, the President, the Chief Financial Officer or any
Vice President of the Company.


 


“Officers’ Certificate”
means a certificate signed by two Officers of the Company, at least one of whom
shall be the principal executive officer or principal financial officer of the
Company, which meets the requirements of Section 12.05 hereof and is delivered
to the Trustee.


 


“Opinion of Counsel”
means a written opinion from legal counsel who is acceptable to the Trustee and
which meets the requirements of Section 12.05 hereof. The counsel may be an
employee of or counsel to the Company or the Trustee.


 


“Participant”
means, with respect to the Depositary, a Person who has an account with the
Depositary.


 


“Permitted Investment”
means any Investment by the Company or a Restricted Subsidiary in:


 


(a) the Company or any Restricted Subsidiary,


 


15





















 


(b) any Person that will, upon the making of such
Investment, become a Restricted Subsidiary, provided that
the primary business of such Restricted Subsidiary is a Related Business;


 


(c) any Person if as a result of such Investment
such Person is merged or consolidated with or into, or transfers or conveys all
or substantially all its Property to, the Company or a Restricted Subsidiary, provided that such Person’s primary business is a Related
Business;


 


(d) Cash Equivalents;


 


(e) receivables owing to the Company or a
Restricted Subsidiary, if created or acquired in the ordinary course of
business and payable or dischargeable in accordance with customary trade terms;
provided, however, that such trade terms
may include such concessionary trade terms as the Company or such Restricted
Subsidiary deems reasonable under the circumstances;


 


(f) payroll, travel and similar advances to cover
matters that are expected at the time of such advances ultimately to be treated
as expenses for accounting purposes and that are made in the ordinary course of
business;


 


(g) loans and advances to employees made in the
ordinary course of business consistent with past practices of the Company or
such Restricted Subsidiary, as the case may be, provided
that such loans and advances do not exceed $2.0 million in the aggregate
at any one time outstanding;


 


(h) stock, obligations or other securities
received in settlement of debts created in the ordinary course of business and
owing to the Company or a Restricted Subsidiary or in satisfaction of
judgments, including as the result of any plan of reorganization or similar
arrangement upon the bankruptcy or insolvency of a trade creditor or customer;


 


(i) any Person to the extent such Investment
represents the non-cash portion of the consideration received in connection
with (A) an Asset Sale consummated in compliance with Section 4.13, or (B) any
disposition of Property not constituting an Asset Sale;


 


(j) other Investments in Related Businesses made for
Fair Market Value that do not exceed 5% of Consolidated Tangible Assets in the
aggregate outstanding at any one time;


 


(k) lease, utility and other similar deposits in
the ordinary course of business;


 


(l) any assets or Capital Stock of any Person
made out of the net cash proceeds of the substantially concurrent sale of Capital
Stock of the Company (other than Disqualified Stock) or the consideration for
which consists solely of Capital Stock (other than Disqualified Stock) of the
Company; provided that the issuance of such
Capital Stock shall be excluded in the calculation set forth in clause (c)(2)
of Section 4.11;


 


(m) Hedging Obligations entered into for bona
fide hedging purposes and not for speculation and otherwise permitted by this
Indenture;


 


(n) any assets acquired as a result of a
foreclosure by the Company or such Restricted Subsidiary with respect to any
secured Permitted Investment or other transfer of title with respect to any
secured Permitted Investment in default;


 


(o) purchases and acquisitions of inventory,
supplies, materials and equipment or licenses or leases or intellectual
property, in any case, in the ordinary course of business and otherwise in
accordance with this Indenture;


 


16





















 


(p) Investments in the Terrace Bay Co-Generation
Facility (or in the Capital Stock of the Person that owns such facility) made
for Fair Market Value that do not exceed $10.0 million; and


 


(q) other Investments made for Fair Market Value
that do not exceed $15.0 million in the aggregate outstanding at any one
time.


 


“Permitted Liens” means:


 


(a) Liens to secure Debt permitted to be Incurred
under clause (b) of the second paragraph of Section 4.10;


 


(b) Liens to secure Debt permitted to be Incurred
under clause (c) of the second paragraph of Section 4.10, provided that any such Lien may not extend to any Property
of the Company or any Restricted Subsidiary, other than the Property acquired,
constructed or leased with the proceeds of such Debt and any improvements or
accessions to such Property;


 


(c) Liens for taxes, assessments or governmental
charges or levies on the Property of the Company or any Restricted Subsidiary
if the same shall not at the time be delinquent or thereafter can be paid
without penalty, or are being contested in good faith and by appropriate
proceedings promptly instituted and diligently concluded, provided
that any reserve or other appropriate provision that shall be required in
conformity with GAAP shall have been made therefor;


 


(d) Liens imposed by law, such as carriers’,
warehousemen’s and mechanics’ Liens and other similar Liens, on the Property of
the Company or any Restricted Subsidiary arising in the ordinary course of
business and securing payment of obligations that are not more than
60 days past due or are being contested in good faith and by appropriate
proceedings;


 


(e)  Liens in
favor of customs and revenue authorities arising in the ordinary course of
business and as a matter of law to secure payment of customs duties;


 


(f) Liens arising as a result of litigation or
legal proceedings that are currently being contested in good faith by
appropriate and diligent action, including any Lien arising as a result of any
judgment against the Company;


 


(g) Liens on the Property of the Company or any
Restricted Subsidiary Incurred in the ordinary course of business to secure
performance of obligations with respect to statutory or regulatory
requirements, performance or return-of-money bonds, surety bonds or other
obligations of a like nature and Incurred in a manner consistent with industry
practice, in each case which are not Incurred in connection with the borrowing
of money, the obtaining of advances or credit or the payment of the deferred
purchase price of Property and which do not in the aggregate impair in any
material respect the use of Property in the operation of the business of the
Company and the Restricted Subsidiaries taken as a whole;


 


(h) Liens on Property at the time the Company or
any Restricted Subsidiary acquired such Property, including any acquisition by
means of a merger or consolidation with or into the Company or any Restricted
Subsidiary; provided, however, that any such Lien
may not extend to any other Property of the Company or any Restricted
Subsidiary; provided further, however, that such
Liens shall not have been Incurred in anticipation of or in connection with the
transaction or series of transactions pursuant to which such Property was
acquired by the Company or any Restricted Subsidiary;


 


(i) Liens on the Property of a Person at the time
such Person becomes a Restricted Subsidiary or is merged into or consolidated
with the Company or a Restricted Subsidiary; provided,
however, that any such Lien may not extend to any other Property of
the Company or any other Restricted Subsidiary that is not a direct Subsidiary
of such Person; provided further,


 


17





















 


however, that any such Lien was
not Incurred in anticipation of or in connection with the transaction or series
of transactions pursuant to which such Person became a Restricted Subsidiary;


 


(j) pledges or deposits by the Company or any
Restricted Subsidiary under workers’ compensation laws, unemployment insurance
laws or similar legislation, or good faith deposits in connection with bids,
tenders, contracts (other than for the payment of Debt) or leases to which the
Company or any Restricted Subsidiary is party, or deposits to secure public or
statutory obligations of the Company, or deposits for the payment of rent, in
each case Incurred in the ordinary course of business;


 


(k) utility easements, building restrictions,
rights-of-way, irregularities of title and such other encumbrances or charges
against real Property as are of a nature generally existing with respect to
properties of a similar character;


 


(l) Liens to secure Hedging Obligations made in
the ordinary course of business and not for the purpose of speculation to the
extent otherwise permitted by this Indenture;


 


(m) Liens to secure Debt permitted to be Incurred
under clause (m) of the second paragraph of Section 4.10, provided that any such Lien may not extend to any Property
of the Company or any Restricted Subsidiary other than the Terrace Bay
Co-Generation Facility and any improvements or accessions thereto and/or, in
the event the Terrace Bay Co-Generation Facility is owned by a Person that is
not a Restricted Subsidiary, the Capital Stock of such Person;


 


(n) Liens existing on the Issue Date not otherwise
described in clauses (a) through (m) above;


 


(o) Liens in favor of the Company or any
Subsidiary Guarantor;


 


(p) Liens, if any, granted to secure the Notes
pursuant to Section 4.12;


 


(q) Liens on the Property of the Company or any
Restricted Subsidiary to secure any Refinancing, in whole or in part, of any
Debt secured by Liens referred to in clause (b), (h), (i), (m) or (n)
above; provided, however, that any such Lien
shall be limited to all or part of the same Property that secured the original
Lien (together with improvements and accessions to such Property), and the
aggregate principal amount of Debt that is secured by such Lien shall not be
increased to an amount greater than the sum of:


 


(1) the
outstanding principal amount, or, if greater, the committed amount, of the Debt
secured by Liens described under clause (b), (h), (i), (m) or (n) above,
as the case may be, at the time the original Lien became a Permitted Lien
under this Indenture, and


 


(2) an
amount necessary to pay any fees and expenses, including premiums and
defeasance costs, incurred by the Company or such Restricted Subsidiary in
connection with such Refinancing; and


 


(r) Liens not otherwise permitted by clauses (a)
through (q) above encumbering Property having an aggregate Fair Market Value
not in excess of 5% of Consolidated Tangible Assets, as determined based on the
consolidated balance sheet of the Company as of the end of the most recent
fiscal quarter for which financial statements are publicly available.


 


“Permitted Refinancing Debt”
means any Debt that Refinances any other Debt, including any successive
Refinancings, so long as:


 


18





















 


(a) such Debt is in an aggregate principal amount
(or if Incurred with original issue discount, an aggregate issue price) not in
excess of the sum of:


 


(1) the aggregate principal amount (or if Incurred
with original issue discount, the aggregate accreted value) then outstanding of
the Debt being Refinanced, and


 


(2) an amount necessary to pay any fees and expenses,
including premiums and defeasance costs, related to such Refinancing,


 


(b) the Average Life of such Debt is equal to or
greater than the Average Life of the Debt being Refinanced,


 


(c) the Stated Maturity of such Debt is no
earlier than the Stated Maturity of the Debt being Refinanced, and


 


(d) the new Debt shall not be senior in right of
payment to the Debt that is being Refinanced; 


 


provided, however, that Permitted
Refinancing Debt shall not include:


 


(x) Debt of a Subsidiary that is not a Subsidiary
Guarantor that Refinances Debt of the Company or a Subsidiary Guarantor, or


 


(y) Debt of the Company or a Restricted
Subsidiary that Refinances Debt of an Unrestricted Subsidiary.


 


“Person” means any individual,
corporation, company (including any limited liability company), association,
partnership, joint venture, trust, unincorporated organization, government or any
agency or political subdivision thereof or any other entity.


 


“Predecessor Note” of any
particular Note means every previous Note evidencing all or a portion of the
same Debt as that evidenced by such particular Note; and any Note authenticated
and delivered under Section 2.07 in lieu of a lost, destroyed or stolen Note
shall be deemed to evidence the same Debt as the lost, destroyed or stolen
Note.


 


“Preferred Stock”
means any Capital Stock of a Person, however designated, which entitles the
holder thereof to a preference with respect to the payment of dividends, or as
to the distribution of assets upon any voluntary or involuntary liquidation or
dissolution of such Person, over shares of any other class of Capital Stock
issued by such Person.


 


“Preferred Stock Dividends”
means all dividends with respect to Preferred Stock of Restricted Subsidiaries
held by Persons other than the Company or a Wholly Owned Restricted
Subsidiary.  The amount of any such
dividend shall be equal to the quotient of such dividend divided by the
difference between one and the maximum statutory federal income rate (expressed
as a decimal number between 1 and 0) then applicable to the issuer of such
Preferred Stock.


 


“Private Placement Legend”
means the legend set forth in Section 2.06(g)(i) hereof to be placed on all
Notes issued under this Indenture except as otherwise permitted by the
provisions of this Indenture.


 


“pro forma”
means, with respect to any calculation made or required to be made pursuant to
the terms hereof, a calculation performed in accordance with Article 11 of
Regulation S-X promulgated under the Securities Act, as interpreted in good
faith by the Board of Directors after consultation with the independent
certified public accountants of the Company, or otherwise a calculation made in
good faith by the Board of Directors after consultation with the independent
certified public accountants of the Company, as the case may be.


 


19





















 


“Property”
means, with respect to any Person, any interest of such Person in any kind of
property or asset, whether real, personal or mixed, or tangible or intangible,
including Capital Stock in, and other securities of, any other Person.  For purposes of any calculation required
pursuant to this Indenture, the value of any Property shall be its Fair Market
Value.


 


“Purchase Money Debt” means Debt:


 


(a) consisting of the deferred purchase price of
Property, conditional sale obligations, obligations under any title retention
agreement, other purchase money obligations and obligations in respect of
industrial revenue bonds, in each case where the maturity of such Debt does not
exceed the anticipated useful life of the Property being financed, and


 


(b) Incurred to finance the acquisition,
construction or lease by the Company or a Restricted Subsidiary of such
Property, including additions and improvements thereto (whether through the
direct purchase of assets or through the acquisition of at least a majority of
the Voting Stock of any Person owning such assets);


 


provided, however, that such Debt
is Incurred within 180 days after the acquisition, construction or lease
of such Property by the Company or such Restricted Subsidiary.


 


“QIB” means a “qualified
institutional buyer” as defined in Rule 144A.


 


“Rating Agencies” means Moody’s
and S&P.


 


“Reference Treasury Dealer”
means Citigroup Global Markets Inc. and its successors; provided,
however, that if any of the foregoing shall cease to be a primary
U.S. government securities dealer in New York City (a “Primary Treasury Dealer”),
the Company shall substitute therefor another Primary Treasury Dealer.


 


“Reference Treasury Dealer
Quotation” means, with respect to the Reference Treasury Dealer and
the Change of Control Redemption Date, the average, as determined by the
Trustee, of the bid and ask prices for the Comparable Treasury Issue (expressed
in each case as a percentage of its principal amount) quoted in writing to the
Trustee by the Reference Treasury Dealer at 5:00 p.m. on the third Business Day
preceding the Change of Control Redemption Date, such quotation to be
determined by the Reference Treasury Dealer in accordance with customary market
practice.


 


“Refinance”
means, in respect of any Debt, to refinance, extend, renew, refund or Repay, or
to issue other Debt, in exchange or replacement for, such Debt.  “Refinanced” and “Refinancing” shall have
correlative meanings.


 


“Registered Exchange Offer”
has the meaning set forth in a Registration Rights Agreement relating to an
exchange of Notes registered under the Securities Act for Notes not so
registered.


 


“Registration Rights
Agreement” means the Registration Rights Agreement dated as of the
Issue Date, among the Company, the Subsidiary Guarantors and the initial
purchasers named therein, as such agreement may be amended, modified or
supplemented from time to time and, with respect to any Additional Notes, one
or more registration rights agreements among the Company, the Subsidiary
Guarantors and the other parties thereto, as such agreement(s) may be amended,
modified or supplemented from time to time, relating to rights given by the
Company and the Subsidiary Guarantors to the purchasers of Additional Notes to
register such Additional Notes, or exchange such Additional Notes for
registered Notes, under the Securities Act.


 


“Regular Record Date”
for the interest payable on any Interest Payment Date means the applicable date
specified as a “Record Date” on the face of the Note.


 


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


 


20





















 


“Regulation S Global Note”
means a Global Note in the form of Exhibit A hereto bearing the Global
Note Legend and the Private Placement Legend and deposited with and registered
in the name of the Depositary or its nominee, issued in a denomination equal to
the outstanding principal amount of the Notes sold for initial resale in
reliance on Rule 903 of Regulation S.


 


“Related Business”
means any business that is related, ancillary or complementary to the businesses
of the Company and the Restricted Subsidiaries on the Issue Date.


 


“Repay” means,
in respect of any Debt, to repay, prepay, repurchase, redeem, legally defease
or otherwise retire such Debt.  “Repayment”
and “Repaid” shall have correlative meanings. 
For purposes of Section 4.13 and the definition of “Consolidated
Interest Coverage Ratio,” Debt shall be considered to have been Repaid only to
the extent the related loan commitment, if any, shall have been permanently
reduced in connection therewith.


 


“Responsible Officer,”
when used with respect to the Trustee, means any officer within the Corporate
Trust Department of the Trustee (or any successor group of the Trustee) with
direct responsibility for the administration of this Indenture and also means,
with respect to a particular corporate trust matter, any other officer to whom
such matter is referred because of his or her knowledge of and familiarity with
the particular subject.


 


“Restricted Definitive Note”
means one or more Definitive Notes bearing the Private Placement Legend.


 


“Restricted Global Notes”
means 144A Global Notes, IAI Global Notes and Regulation S Global Notes.


 


“Restricted Payment”
means:


 


(a) any dividend or distribution (whether made in
cash, securities or other Property) declared or paid on or with respect to any
shares of Capital Stock of the Company or any Restricted Subsidiary (including
any payment in connection with any merger or consolidation with or into the
Company or any Restricted Subsidiary), except for any dividend or distribution
that is made solely to the Company or a Restricted Subsidiary (and, if such
Restricted Subsidiary is not a Wholly Owned Restricted Subsidiary, to the other
shareholders of such Restricted Subsidiary on a pro rata basis
or on a basis that results in the receipt by the Company or a Restricted
Subsidiary of dividends or distributions of greater value than it would receive
on a pro rata basis) or any dividend or
distribution payable solely in shares of Capital Stock (other than Disqualified
Stock) of the Company;


 


(b) the purchase, repurchase, redemption,
acquisition or retirement for value of any Capital Stock of the Company, any
parent of the Company or any Restricted Subsidiary (other than from the Company
or a Restricted Subsidiary) or any securities exchangeable for or convertible
into any such Capital Stock, including the exercise of any option to exchange
any Capital Stock (other than for or into Capital Stock of the Company that is
not Disqualified Stock);


 


(c) the purchase, repurchase, redemption,
acquisition or retirement for value, prior to the date for any scheduled
maturity, sinking fund or amortization or other installment payment, of any
Subordinated Obligation (other than the purchase, repurchase or other
acquisition of any Subordinated Obligation purchased in anticipation of
satisfying a scheduled maturity, sinking fund or amortization or other
installment obligation, in each case due within one year of the date of
acquisition); or


 


(d) any Investment (other than Permitted
Investments) in any Person;


 


provided, however, that the term “Restricted
Payment” shall not include those payments or investments made in connection
with the consummation of the Spin-Off and described in the Offering Memorandum.


 


21





















 


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


 


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


 


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


 


“Rule 903” means
Rule 903 promulgated under the Securities Act.


 


“Rule 904” means
Rule 904 promulgated under the Securities Act.


 


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


 


“Sale and Leaseback
Transaction” means any direct or indirect arrangement relating to
Property now owned or hereafter acquired whereby the Company or a Restricted
Subsidiary transfers such Property to another Person and the Company or a
Restricted Subsidiary leases it from such Person.


 


“Securities Act”
means the Securities Act of 1933, as amended.


 


“Senior Debt” of the Company means:


 


(a) all obligations consisting of the principal,
premium, if any, and accrued and unpaid interest (including interest accruing
on or after the filing of any petition in bankruptcy or for reorganization
relating to the Company whether or not such post-filing interest is allowed in
such proceeding) in respect of:


 


(1) Debt of the Company for borrowed money, and


 


(2) Debt of the Company evidenced by notes,
debentures, bonds or other similar instruments permitted under this Indenture
for the payment of which the Company is responsible or liable;


 


(b) all Capital Lease Obligations of the Company
and all Attributable Debt in respect of Sale and Leaseback Transactions entered
into by the Company;


 


(c) all obligations of the Company


 


(1) for the reimbursement of any obligor on any
letter of credit, banker’s acceptance or similar credit transaction,


 


(2) under Hedging Obligations, or


 


(3) issued or assumed as the deferred purchase
price of Property and all conditional sale obligations of the Company and all
obligations under any title retention agreement permitted under this Indenture;
and


 


(d) all obligations of other Persons of the type
referred to in clauses (a), (b) and (c) for the payment of which the Company is
responsible or liable as Subsidiary Guarantor;


 


provided, however, that Senior
Debt shall not include:


 


(A) Debt of the Company that is by its terms
subordinate in right of payment to the Notes, including any Subordinated Obligations;


 


22





















 


(B) any Debt Incurred in violation of the
provisions of this Indenture;


 


(C) accounts payable or any other obligations of
the Company to trade creditors created or assumed by the Company in the
ordinary course of business in connection with the obtaining of materials or
services (including Guarantees thereof or instruments evidencing such
liabilities);


 


(D) any liability for Federal, state, local or
other taxes owed or owing by the Company;


 


(E) any obligation of the Company to any Subsidiary;
or


 


(F) any obligations with respect to any Capital Stock
of the Company.


 


To the extent that any payment of Senior Debt (whether by or on behalf of
the Company as proceeds of security or enforcement or any right of setoff or
otherwise) is declared to be fraudulent or preferential, set aside or required
to be paid to a trustee, receiver or other similar party under any bankruptcy,
insolvency, receivership or similar law, then if such payment is recovered by,
or paid over to, such trustee, receiver or other similar party, the Senior Debt
or part thereof originally intended to be satisfied shall be deemed to be
reinstated and outstanding as if such payment had not occurred.  “Senior Debt”
of any Subsidiary Guarantor has a correlative meaning.


 


“Shelf Registration
Statement” means the registration statement relating to the
registration of the Notes under Rule 415 of the Securities Act, as may be set
forth in a Registration Rights Agreement.


 


“Significant Subsidiary”
means any Subsidiary that would be a “significant subsidiary” of the Company
within the meaning of Rule 1-02 under Regulation S-X promulgated by the
Commission.


 


“Special
Interest” has the meaning set forth in a Registration Rights Agreement
relating to amounts to be paid in the event the Company and the Subsidiary
Guarantors fail to satisfy certain conditions set forth herein.  For all purposes of this Indenture, the term “interest”
shall include Special Interest, if any, with respect to the Notes.


 


“Spin-Off”
means the distribution of all of the outstanding capital stock of the Company
by its parent, Kimberly-Clark, to Kimberly-Clark’s shareholders.


 


“Spin-Off Agreements”
means the Distribution Agreement, tax sharing agreement, corporate services
agreement, employee matters agreement and pulp supply agreement, each to be
entered into by the Company and Kimberly-Clark or Kimberly-Clark Global Sales,
Inc., as applicable, in connection with the Spin-Off.


 


“Stated Maturity”
means, with respect to any security, the date specified in such security as the
fixed date on which the payment of principal of such security is due and
payable, including pursuant to any mandatory redemption provision (but
excluding any provision providing for the repurchase of such security at the
option of the holder thereof upon the happening of any contingency beyond the
control of the issuer unless such contingency has occurred).


 


“Subordinated Obligation”
means any Debt of the Company or any Subsidiary Guarantor (whether outstanding
on the Issue Date or thereafter Incurred) that is subordinate or junior in
right of payment to the Notes or the applicable Subsidiary Guaranty pursuant to
a written agreement to that effect.


 


“Subsidiary”
means, in respect of any Person, any corporation, company (including any
limited liability company), association, partnership, joint venture or other
business entity of which at least a majority of the total voting power of the
Voting Stock is at the time owned or controlled, directly or indirectly, by:


 


(a) such Person,


 


(b) such Person and one or more Subsidiaries of
such Person, or


 


23





















 


(c) one or more Subsidiaries of such Person.


 


“Subsidiary Guarantor” means (1)
each Domestic Restricted Subsidiary (other than Neenah and Menasha Water Power
Company), (2) each Foreign Restricted Subsidiary that has Guaranteed other Debt
of the Company or any Domestic Restricted Subsidiary and (3) any other Person
that becomes a Subsidiary Guarantor pursuant to Section 4.19 or who otherwise executes and delivers a supplemental
indenture to the Trustee providing for a Subsidiary Guaranty, and, in
each case, who has not been released from such Subsidiary Guaranty in
accordance with this Indenture.


 


“Subsidiary Guaranty”
means the Guarantee of the Notes by each of the Subsidiary Guarantors pursuant
to Article 10 and in the form of the Guarantee attached as Exhibit E and any
additional Guarantee of the Notes to be executed by any Subsidiary of the
Company pursuant to Section 4.19.


 


 “Surviving Person” means
the surviving Person formed by a merger, consolidation or amalgamation and, for
purposes of Section 5.01, a Person to whom all or substantially all the
Property of the Company or a Subsidiary Guarantor is sold, transferred,
assigned, leased, conveyed or otherwise disposed.


 


“TIA” means the
Trust Indenture Act of 1939, as amended, and the rules and regulations
thereunder.


 


“Terrace Bay Co-Generation Facility” means
the co-generation facility proposed to be constructed by the Company and/or its
Subsidiary, Neenah Paper Company of Canada, in connection with the Company’s
pulp operations located in Terrace Bay, Ontario, Canada.


 


“Treasury Rate”
means, with respect to the Change of Control Redemption Date, the rate per annum
equal to the yield to maturity of the Comparable Treasury Issue, compounded
semi-annually, assuming a price for such Comparable Treasury Issue (expressed
as a percentage of its principal amount) equal to the Comparable Treasury Price
for the Change of Control Redemption Date.


 


“Trustee” means
the Person named as the “Trustee” in the first paragraph of this instrument
until a successor Trustee shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter “Trustee” shall mean such
successor Trustee.


 


“Unrestricted Definitive
Notes” means one or more Definitive Notes that do not and are not
required to bear the Private Placement Legend.


 


“Unrestricted Global Notes”
means one or more Global Notes that do not and are not required to bear the
Private Placement Legend and are deposited with and registered in the name of
the Depositary or its nominee.


 


“Unrestricted Subsidiary” means:


 


(a)  any Subsidiary of the Company that is
designated after the Issue Date as an Unrestricted Subsidiary as permitted or
required pursuant to Section 4.17 and is not thereafter redesignated as a
Restricted Subsidiary as permitted pursuant thereto; and


 


(b) any Subsidiary of an Unrestricted Subsidiary.


 


“U.S.
Government Obligations” means direct obligations (or certificates
representing an ownership interest in such obligations) of the United States of
America (including any agency or instrumentality thereof) for the payment of
which the full faith and credit of the United States of America is pledged and
which are not callable or redeemable at the issuer’s option.


 


“U.S.
Subsidiary Guarantors” means Neenah Paper Sales, Inc. and Neenah
Paper Michigan, Inc.


 


24





















 


“U.S.
Subsidiary Stock Contribution” means the contribution of all the
outstanding shares of Capital Stock of the U.S. Subsidiary Guarantors to the
Company.


 


“Voting Stock”
of any Person means all classes of Capital Stock or other interests (including
partnership interests) of such Person then outstanding and normally entitled
(without regard to the occurrence of any contingency) to vote in the election
of directors, managers or trustees thereof.


 


 “Wholly Owned Restricted Subsidiary” means, at any time, a
Restricted Subsidiary all the Voting Stock of which (except directors’
qualifying shares) is at such time owned, directly or indirectly, by the
Company and its other Wholly Owned Restricted Subsidiaries.


 


Section 1.02.                         Other Definitions.


 


	
  Term

  	
   

  	
  Defined in

  Section

  	
   

  
	
  “Affiliate
  Transaction”

  	
   

  	
  4.15

  	
   

  
	
  “Allocable
  Excess Proceeds”

  	
   

  	
  4.13

  	
   

  
	
  “Authentication
  Order”

  	
   

  	
  2.02

  	
   

  
	
  “Benefited
  Party”

  	
   

  	
  10.01

  	
   

  
	
  “Change of
  Control Offer”

  	
   

  	
  4.18

  	
   

  
	
  “Change of
  Control Purchase Price”

  	
   

  	
  4.18

  	
   

  
	
  “Change of
  Control Redemption Date

  	
   

  	
  3.07

  	
   

  
	
  “Change of
  Control Redemption Notice

  	
   

  	
  3.07

  	
   

  
	
  “Covenant
  Defeasance”

  	
   

  	
  8.03

  	
   

  
	
  “defeasance
  trust”

  	
   

  	
  8.04

  	
   

  
	
  “DTC”

  	
   

  	
  2.03

  	
   

  
	
  “Event of
  Default”

  	
   

  	
  6.01

  	
   

  
	
  “Excess
  Proceeds”

  	
   

  	
  4.13

  	
   

  
	
  “Legal
  Defeasance”

  	
   

  	
  8.02

  	
   

  
	
  “losses”

  	
   

  	
  7.07

  	
   

  
	
  “Notice of
  Default”

  	
   

  	
  6.02

  	
   

  
	
  “Offer Amount”

  	
   

  	
  3.09

  	
   

  
	
  “Offer Period”

  	
   

  	
  3.09

  	
   

  
	
  “Offer to
  Purchase”

  	
   

  	
  3.09

  	
   

  
	
  “Paying Agent”

  	
   

  	
  2.03

  	
   

  
	
  “Prepayment
  Offer”

  	
   

  	
  4.13

  	
   

  
	
  “Purchase Date”

  	
   

  	
  3.09

  	
   

  
	
  “Purchase Price”

  	
   

  	
  3.09

  	
   

  
	
  “Registrar”

  	
   

  	
  2.03

  	
   

  
	
  “Security
  Register”

  	
   

  	
  2.03

  	
   

  
	
  “Special
  Mandatory Redemption”

  	
   

  	
  3.08

  	
   

  
	
  “Special
  Mandatory Redemption Date”

  	
   

  	
  3.08

  	
   

  
	
  “Special
  Mandatory Redemption Event”

  	
   

  	
  3.08

  	
   

  
	
  “Special
  Mandatory Redemption Payment”

  	
   

  	
  3.08

  	
   

  
	
  “Suspended
  Covenants”

  	
   

  	
  4.09

  	
   

  
	
  “Untendered
  Notes”

  	
   

  	
  3.07

  	
   

  



 


Section 1.03.                         Incorporation by Reference of
Trust Indenture Act.


 


(a)           Whenever this Indenture refers to a
provision of the TIA, the provision is incorporated by reference in and made a
part of this Indenture.


 


(b)           The following TIA terms used in this
Indenture have the following meanings:


 


“indenture securities” means the
Notes and the Subsidiary Guaranties;


 


25





















 


“indenture security holder”
means a Holder of a Note;


 


“indenture to be qualified”
means this Indenture;


 


“indenture trustee”
or “institutional trustee” means the
Trustee; and


 


“obligor” on
the Notes means the Company and any successor obligor upon the Notes.


 


(c)          All
other terms used in this Indenture that are defined by the TIA, defined by TIA
reference to another statute or defined by Commission rule under the TIA and
not otherwise defined herein have the meanings so assigned to them either in
the TIA, by another statute or Commission rule, as applicable.


 


Section 1.04.                         Rules of Construction.


 


Unless the context
otherwise requires:


 


(a)          a
term has the meaning assigned to it;


 


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


 


(c)          “or”
is not exclusive;


 


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


 


(e)          all
references in this instrument to “Articles,” “Sections” and other subdivisions
are to the designated Articles, Sections and subdivisions of this instrument as
originally executed;


 


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


 


(g)         “including”
means “including without limitation;”


 


(h)         provisions
apply to successive events and transactions; and


 


(i)             references
to sections of or rules under the Securities Act, the Exchange Act or the TIA
shall be deemed to include substitute, replacement or successor sections or
rules adopted by the Commission from time to time thereunder.


 


ARTICLE 2.



THE NOTES


 


Section 2.01.                         Form and Dating.


 


(a)          General.  The Notes and the Trustee’s certificate of
authentication shall be substantially in the form included in Exhibit A hereto,
which is hereby incorporated in and expressly made part of this Indenture.  The Notes may have notations, legends or
endorsements required by law, exchange rule or usage in addition to those set
forth on Exhibit A.  Each Note shall be
dated the date of its authentication. 
The Notes shall be in denominations of $1,000 and integral multiples
thereof.  The terms and provisions
contained in the Notes shall constitute a part of this Indenture and the
Company, the Subsidiary Guarantors and the Trustee, by their execution and
delivery of this Indenture, expressly agree to such terms and provisions and to
be bound thereby.  To the extent any
provision of any Note conflicts with the express provisions of this Indenture,
the provisions of this Indenture shall govern and be controlling.


 


26





















 


(b)         Form of Notes.  Notes shall be issued initially in global
form and shall be substantially in the form of Exhibit A attached hereto (including
the Global Note Legend thereon and the “Schedule of Exchanges of Interests
in the Global Note” attached thereto). 
Notes issued in definitive form shall be substantially in the form of
Exhibit A attached hereto (but without the Global Note Legend thereon and
without the “Schedule of Exchanges of Interests in the Global Note”
attached thereto).  Each Global Note
shall represent such aggregate principal amount of the outstanding Notes as
shall be specified therein and each shall provide that it shall represent the
aggregate principal amount of outstanding Notes from time to time endorsed
thereon and that the aggregate principal amount of outstanding Notes
represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions and transfers of interests
therein.  Any endorsement of a Global
Note to reflect the amount of any increase or decrease in the aggregate
principal amount of outstanding Notes represented thereby shall be made by the
Trustee or the Custodian, at the direction of the Trustee, in accordance with
instructions given by the Holder thereof as required by Section 2.06
hereof.


 


(c)          Book-Entry Provisions.  This Section 2.01(c) shall apply only to
Global Notes deposited with the Trustee, as custodian for the Depositary.  Participants and Indirect Participants shall
have no rights under this Indenture or any Global Note with respect to any
Global Note held on their behalf by the Depositary or by the Trustee as custodian
for the Depositary, and the Depositary shall be treated by the Company, the
Trustee and any agent of the Company or the Trustee as the absolute owner of
such Global Note for all purposes whatsoever. 
Notwithstanding the foregoing, nothing herein shall prevent the Company,
the Trustee or any agent of the Company or the Trustee from giving effect to
any written certification, proxy or other authorization furnished by the
Depositary or impair, as between the Depositary and its Participants or
Indirect Participants, the Applicable Procedures or the operation of customary
practices of the Depositary governing the exercise of the rights of a holder of
a beneficial interest in any Global Note.


 


(d)         Certificated Securities.  The Company shall exchange Global Notes for
Definitive Notes if: (1) at any time the Depositary notifies the Company that
it is unwilling or unable to continue to act as Depositary for the Global Notes
or if at any time the Depositary shall no longer be eligible to act as such
because it ceases to be a clearing agency registered under the Exchange Act,
and, in either case, the Company shall not have appointed a successor
Depositary within 120 days after the Company receives such notice or becomes
aware of such ineligibility, or (2) upon written request of a Holder or the
Trustee if a Default or Event of Default shall have occurred and be
continuing.  Upon the occurrence of any
of the events set forth in clauses (1) or (2) above, the Company shall execute,
and, upon receipt of an Authentication Order in accordance with Section 2.02
hereof, the Trustee shall authenticate and deliver Definitive Notes, in
authorized denominations, in an aggregate principal amount equal to the
principal amount of the Global Notes in exchange for such Global Notes.


 


The Company shall issue Definitive Notes to a Holder
of, or an owner of a beneficial interest in, a Global Note in exchange for such
Global Note or beneficial interest, as the case may be, upon written request
from a Holder of, or an owner of a beneficial interest in, a Global Note if a
Default or Event of Default shall have occurred and be continuing.  Upon the occurrence of the foregoing, the
Company shall execute, and, upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, the Trustee shall authenticate and
deliver, Definitive Notes, in authorized denominations, in an aggregate
principal amount equal to the principal amount of the Global Note owned by such
Holder or such owner of a beneficial interest. 
Upon the exchange of all or a portion of a Global Note for Definitive
Notes, such Global Note shall be cancelled or correspondingly reduced by the
Trustee or an agent of the Company or the Trustee.  In the event that the Definitive Notes are
not issued to an owner of a beneficial interest in a Global Note promptly after
the Company has received a request from such owner, the Company expressly
acknowledges, with respect to the right of any Holder to pursue a remedy
pursuant to this Indenture, the right of any such owner to pursue such remedy
with respect to the portion of the Global Note that represents such owner’s
beneficial interest as if such Definitive Notes had been issued.


 


Upon the exchange of a
Global Note for Definitive Notes, such Global Note shall be cancelled by the
Trustee or an agent of the Company or the Trustee.  Subject to Section 2.06, Definitive
Notes issued in exchange for a Global Note pursuant to this Section 2.01
shall be registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its Participants or its Applicable
Procedures, shall instruct the Trustee or an agent of the Company or the
Trustee in writing.  Subject to Section 2.06,
the Trustee or such agent shall deliver such Definitive Notes to or as directed
by the Persons in whose names such Definitive Notes are so registered or to the
Depositary.


 


27





















 


Section 2.02.                         Execution and Authentication.


 


(a)          One
Officer shall execute the Notes on behalf of the Company by manual or facsimile
signature.


 


(b)         If
an Officer whose signature is on a Note no longer holds that office at the time
a Note is authenticated by the Trustee, the Note shall nevertheless be valid.


 


(c)          A
Note shall not be valid until authenticated by the manual signature of the
Trustee.  The signature shall be
conclusive evidence that the Note has been authenticated under this Indenture.


 


(d)         The
Trustee shall, upon a written order of the Company signed by an Officer (an “Authentication Order”), authenticate
Notes for issuance.


 


(e)          The
Trustee may appoint an authenticating agent acceptable to the Company to
authenticate Notes.  Unless otherwise
provided in such appointment, an authenticating agent may authenticate Notes
whenever the Trustee may do so.  Each
reference in this Indenture to authentication by the Trustee includes
authentication by such agent.  An
authenticating agent shall have the same rights as the Trustee to deal with
Holders, the Company or an Affiliate of the Company.


 


Section 2.03.                         Registrar and Paying Agent.


 


(a)          The
Company shall maintain an office or agency where Notes may be presented for
registration of transfer or for exchange (“Registrar”)
and an office or agency where Notes may be presented for payment (“Paying Agent”).  The Registrar shall keep a register (the “Security Register”) of the Notes and
of their transfer and exchange.  The
Company may appoint one or more co-registrars and one or more additional paying
agents.  The term “Registrar” includes
any co-registrar and the term “Paying Agent” includes any additional paying
agent.  The Company may change any Paying
Agent or Registrar without notice to any Holder.  The Company shall notify the Trustee in
writing of the name and address of any Agent not a party to this
Indenture.  If the Company fails to
appoint or maintain another entity as Registrar or Paying Agent, the Trustee
shall act as such.  The Company or any of
its Subsidiaries may act as Paying Agent or Registrar.


 


(b)         The
Company initially appoints The Depository Trust Company (“DTC”)
to act as Depositary with respect to the Global Notes.


 


(c)          The
Company initially appoints the Trustee to act as Registrar and Paying Agent and
to act as Custodian with respect to the Global Notes, and the Trustee hereby
agrees so to initially act.


 


Section 2.04.                         Paying Agent to Hold Money in
Trust.


 


The Company shall require
each Paying Agent other than the Trustee to agree in writing that the Paying
Agent shall hold in trust for the benefit of Holders or the Trustee all money
held by the Paying Agent for the payment of principal, premium, if any, or
interest on the Notes, and shall notify the Trustee of any default by the
Company in making any such payment. 
While any such default continues, the Trustee may require a Paying Agent
to pay all funds held by it relating to the Notes to the Trustee.  The Company at any time may require a Paying
Agent to pay all funds held by it to the Trustee.  Upon payment over to the Trustee, the Paying
Agent (if other than the Company or a Subsidiary) shall have no further
liability for such funds.  If the Company
or a Subsidiary acts as Paying Agent, it shall segregate and hold in a separate
trust fund for the benefit of the Holders all funds held by it as Paying
Agent.  Upon any Event of Default under
Sections 6.01(viii) and (ix) hereof relating to the Company, the Trustee shall
serve as Paying Agent for the Notes.


 


Section 2.05.                         Holder Lists.


 


The Trustee shall
preserve in as current a form as is reasonably practicable the most recent list
available to it of the names and addresses of all Holders and shall otherwise
comply with TIA §312(a).  If the


 


28





















 


Trustee is not the
Registrar, the Company shall furnish or cause to be furnished to the Trustee at
least seven Business Days before each Interest Payment Date and at such other
times as the Trustee may request in writing, a list in such form and as of such
date or such shorter time as the Trustee may allow, as the Trustee may
reasonably require of the names and addresses of the Holders and the Company shall
otherwise comply with TIA §312(a).


 


Section 2.06.                         Transfer and Exchange.


 


(a)          Transfer and Exchange of Global Notes.  A Global Note may not be transferred as a
whole except by the Depositary to a nominee of the Depositary, by a nominee of
the Depositary to the Depositary or to another nominee of the Depositary, or by
the Depositary or any such nominee to a successor Depositary or a nominee of
such successor Depositary.  Upon the
occurrence of any of the events set forth in Section 2.01(d) above,
Definitive Notes shall be issued in denominations of $1,000 or integral
multiples thereof and in such names as the Depositary shall instruct the
Trustee in writing.  Global Notes also
may be exchanged or replaced, in whole or in part, as provided in Sections 2.07
and 2.10 hereof.  Except as provided
above, every Note authenticated and delivered in exchange for, or in lieu of, a
Global Note or any portion thereof, pursuant to this Section 2.06 or Section 2.07
or 2.10 hereof, shall be authenticated and delivered in the form of, and shall
be, a Global Note.  A Global Note may not
be exchanged for another Note other than as provided in this Section 2.06(a),
and beneficial interests in a Global Note may not be transferred and exchanged
other than as provided in Section 2.06(b), (c) or (f) hereof.


 


(b)         Transfer and Exchange of Beneficial Interests in
the Global Notes.  The
transfer and exchange of beneficial interests in the Global Notes shall be
effected through the Depositary, in accordance with the provisions of this Indenture
and the Applicable Procedures. 
Beneficial interests in the Restricted Global Notes shall be subject to
restrictions on transfer comparable to those set forth herein to the extent
required by the Securities Act. 
Transfers of beneficial interests in Global Notes also shall require
compliance with either clause (i) or (ii) below, as applicable, as well as one
or more of the other following clauses, as applicable:


 


(i)             Transfer of
Beneficial Interests in the Same Global Note.  Beneficial interests in any Restricted Global
Note may be transferred to Persons who take delivery thereof in the form of a
beneficial interest in the same Restricted Global Note in accordance with the
transfer restrictions set forth in the Private Placement Legend and any Applicable
Procedures.  Beneficial interests in any
Unrestricted Global Note may be transferred to Persons who take delivery
thereof in the form of a beneficial interest in an Unrestricted Global Note.  Except as may be required by any Applicable
Procedures, no written orders or instructions shall be required to be delivered
to the Registrar to effect the transfers described in this Section 2.06(b)(i).


 


(ii)          All Other Transfers
and Exchanges of Beneficial Interests in Global Notes.  In connection with all transfers and
exchanges of beneficial interests that are not subject to Section 2.06(b)(i)
above, the transferor of such beneficial interest must deliver to the Registrar
either (A)(1) a written order from a Participant or an Indirect
Participant given to the Depositary in accordance with the Applicable
Procedures directing the Depositary to credit or cause to be credited a
beneficial interest in another Global Note in an amount equal to the beneficial
interest to be transferred or exchanged and (2) instructions given in
accordance with the Applicable Procedures containing information regarding the
Participant account to be credited with such increase or (B)(1) if
permitted under Section 2.06(a), a written order from a Participant or an
Indirect Participant given to the Depositary in accordance with the Applicable
Procedures directing the Depositary to cause to be issued a Definitive Note in
an amount equal to the beneficial interest to be transferred or exchanged and
(2) instructions given by the Depositary to the Registrar containing
information regarding the Person in whose name such Definitive Note shall be
registered to effect the transfer or exchange referred to in (B)(1) above.  Upon consummation of a Registered Exchange
Offer by the Company in accordance with Section 2.06(f) hereof, the
requirements of this Section 2.06(b)(ii) shall be deemed to have been
satisfied upon receipt by the Registrar of the instructions contained in the
Letter of Transmittal delivered by the Holder of such beneficial interests in
the Restricted Global Notes.  Upon
satisfaction of all of the requirements for transfer or exchange of beneficial
interests in Global Notes contained in this Indenture and the Notes or
otherwise applicable under the Securities Act, the Trustee shall adjust the
principal amount of the relevant Global Note(s) pursuant to Section 2.06(h)
hereof.


 


29





















 


(iii)       Transfer of Beneficial
Interests in a Restricted Global Note to Another Restricted Global Note.  A holder of a beneficial interest in a
Restricted Global Note may transfer such beneficial interest to a Person who
takes delivery thereof in the form of a beneficial interest in another
Restricted Global Note if the transfer complies with the requirements of Section 2.06(b)(ii)
above and the Registrar receives the following:


 


(A)  if
the transferee will take delivery in the form of a beneficial interest in the
144A Global Note, then the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in item (1) thereof or, if
permitted by the Applicable Procedures, item (3) thereof;


 


(B)  if
the transferee will take delivery in the form of a beneficial interest in the
Regulation S Global Note, then the transferor must deliver a certificate in the
form of Exhibit B hereto, including the certifications in item (2) thereof; and


 


(C)  if
the transferee is required by the Applicable Procedures to take delivery in the
form of a beneficial interest in the IAI Global Note, then the transferor must
deliver a certificate in the form of Exhibit B hereto, including the
certifications and certificates and Opinion of Counsel required by item (3)
thereof, if applicable.


 


(iv)      Transfer or Exchange of
Beneficial Interests in a Restricted Global Note for Beneficial Interests in an
Unrestricted Global Note.  A holder
of a beneficial interest in a Restricted Global Note may exchange such
beneficial interest for a beneficial interest in an Unrestricted Global Note or
may transfer such beneficial interest to a Person who takes delivery thereof in
the form of a beneficial interest in an Unrestricted Global Note only if the
exchange or transfer complies with the requirements of Section 2.06(b)(ii)
above and:


 


(A)  such
exchange or transfer is effected pursuant to the Registered Exchange Offer in
accordance with a Registration Rights Agreement and the holder of the
beneficial interest, in the case of an exchange, or the transferee, in the case
of a transfer, makes any and all certifications required in the applicable
Letter of Transmittal (or is deemed to have made such certifications if
delivery is made through the Applicable Procedures) as may be required by such
Registration Rights Agreement;


 


(B)  such
transfer is effected pursuant to a Shelf Registration Statement in accordance
with a Registration Rights Agreement;


 


(C)  such
transfer is effected by a broker-dealer pursuant to an Exchange Offer
Registration Statement in accordance with a Registration Rights Agreement; or


 


(D)  the
Registrar receives the following:


 


(1)          if the holder of such
beneficial interest in a Restricted Global Note proposes to exchange such
beneficial interest for a beneficial interest in an Unrestricted Global Note, a
certificate from such holder in the form of Exhibit C hereto, including the
certifications in item (1)(a) thereof; or


 


(2)          if the holder of such
beneficial interest in a Restricted Global Note proposes to transfer such
beneficial interest to a Person who shall take delivery thereof in the form of
a beneficial interest in an Unrestricted Global Note, a certificate from such
holder in the form of Exhibit B hereto, including the certifications in item
(4) thereof;


 


30





















 


and, in each such case
set forth in this clause (D), if the Registrar so requests or if the Applicable
Procedures so require, an Opinion of Counsel in form reasonably acceptable to
the Registrar to the effect that such exchange or transfer complies with the
Securities Act and that the restrictions on transfer contained herein and in
the Private Placement Legend are no longer required in order to maintain
compliance with the Securities Act.


 


If any such transfer is
effected pursuant to clause (B) or (D) above at a time when an Unrestricted
Global Note has not yet been issued, the Company shall execute and, upon
receipt of an Authentication Order in accordance with Section 2.02 hereof,
the Trustee shall authenticate one or more Unrestricted Global Notes in an
aggregate principal amount equal to the aggregate principal amount of
beneficial interests transferred pursuant to clause (B) or (D) above.


 


(v)         Transfer or Exchange
of Beneficial Interests in an Unrestricted Global Note for Beneficial Interests
in a Restricted Global Note Prohibited. 
Beneficial interests in an Unrestricted Global Note may not be exchanged
for, or transferred to Persons who take delivery thereof in the form of,
beneficial interests in a Restricted Global Note.


 


(c)          Transfer and Exchange of Beneficial Interests in
Global Notes for Definitive Notes.


 


(i)             Transfer or
Exchange of Beneficial Interests in Restricted Global Notes to Restricted
Definitive Notes.  Subject to Section 2.06(a)
hereof, if any holder of a beneficial interest in a Restricted Global Note
proposes to exchange such beneficial interest for a Restricted Definitive Note
or to transfer such beneficial interest to a Person who takes delivery thereof
in the form of a Restricted Definitive Note, then, upon receipt by the
Registrar of the following documentation:


 


(A)  if
the holder of such beneficial interest in a Restricted Global Note proposes to
exchange such beneficial interest for a Restricted Definitive Note, a
certificate from such holder in the form of Exhibit C hereto, including the
certifications in item (2)(a) thereof;


 


(B)  if
such beneficial interest is being transferred to a QIB in accordance with Rule
144A, a certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (1) thereof;


 


(C)  if
such beneficial interest is being transferred to a “Non-U.S. Person” in an
offshore transaction (as defined in Section 902(k) of Regulation S) in
accordance with Rule 903 or Rule 904, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (2) thereof;


 


(D)  if
such beneficial interest is being transferred pursuant to an exemption from the
registration requirements of the Securities Act in accordance with Rule 144
under the Securities Act, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (3)(a) thereof;


 


(E)  if
such beneficial interest is being transferred to an Institutional Accredited
Investor in reliance on an exemption from the registration requirements of the
Securities Act other than those listed in clauses (B) through (D) above, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required by item (3)(d)
thereof, if applicable; or


 


(F)  if
such beneficial interest is being transferred to the Company or any of its
Subsidiaries, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof,


 


31





















 


the
Trustee shall reduce or cause to be reduced in a corresponding amount pursuant
to Section 2.06(h) hereof, the aggregate principal amount of the
applicable Restricted Global Note, and the Company shall execute and, upon
receipt of an Authentication Order in accordance with Section 2.02 hereof,
the Trustee shall authenticate and deliver a Restricted Definitive Note in the
appropriate principal amount to the Person designated by the holder of such
beneficial interest in the instructions delivered to the Registrar by the
Depositary and the applicable Participant or Indirect Participant on behalf of
such holder.  Any Restricted Definitive
Note issued in exchange for beneficial interests in a Restricted Global Note
pursuant to this Section 2.06(c)(i) shall be registered in such name or
names and in such authorized denomination or denominations as the holder of
such beneficial interest shall designate in such instructions.  The Trustee shall deliver such Restricted
Definitive Notes to the Persons in whose names such Notes are so registered.  Any Restricted Definitive Note issued in
exchange for a beneficial interest in a Restricted Global Note pursuant to this
Section 2.06(c)(i) shall bear the Private Placement Legend and shall be
subject to all restrictions on transfer contained therein.


 


(ii)          Transfer or Exchange
of Beneficial Interests in Restricted Global Notes to Unrestricted Definitive
Notes.  Subject to Section 2.06(a)
hereof, a holder of a beneficial interest in a Restricted Global Note may
exchange such beneficial interest for an Unrestricted Definitive Note or may
transfer such beneficial interest to a Person who takes delivery thereof in the
form of an Unrestricted Definitive Note only if:


 


(A)  such
exchange or transfer is effected pursuant to a Registered Exchange Offer in
accordance with a Registration Rights Agreement and the holder of such
beneficial interest, in the case of an exchange, or the transferee, in the case
of a transfer, makes any and all certifications in the applicable Letter of
Transmittal (or is deemed to have made such certifications if delivery is made
through the Applicable Procedures) as may be required by such Registration
Rights Agreement;


 


(B)  such
transfer is effected pursuant to a Shelf Registration Statement in accordance
with a Registration Rights Agreement;


 


(C)  such
transfer is effected by a broker-dealer pursuant to an Exchange Offer
Registration Statement in accordance with a Registration Rights Agreement; or


 


(D)  the
Registrar receives the following:


 


(1)          if the holder of such
beneficial interest in a Restricted Global Note proposes to exchange such
beneficial interest for an Unrestricted Definitive Note, a certificate from
such holder in the form of Exhibit C hereto, including the certifications in
item (1)(b) thereof; or


 


(2)          if the holder of such
beneficial interest in a Restricted Global Note proposes to transfer such
beneficial interest to a Person who shall take delivery thereof in the form of
an Unrestricted Definitive Note, a certificate from such holder in the form of
Exhibit B hereto, including the certifications in item (4) thereof;



and, in each such case set forth in this clause (D), if the Registrar so
requests or if the Applicable Procedures so require, an Opinion of Counsel in
form reasonably acceptable to the Registrar to the effect that such exchange or
transfer complies with the Securities Act and that the restrictions on transfer
contained herein and in the Private Placement Legend are no longer required in
order to maintain compliance with the Securities Act.


 


Upon satisfaction of any
of the conditions of any of the clauses of this Section 2.06(c)(ii), the
Company shall execute and, upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, the Trustee shall authenticate and
deliver an Unrestricted Definitive Note in the appropriate


 


32





















 


principal amount to the
Person designated by the holder of such beneficial interest in instructions
delivered to the Registrar by the Depositary and the applicable Participant or
Indirect Participant on behalf of such holder, and the Trustee shall reduce or
cause to be reduced in a corresponding amount pursuant to Section 2.06(h),
the aggregate principal amount of the applicable Restricted Global Note.


 


(iii)       Transfer or Exchange of
Beneficial Interests in Unrestricted Global Notes to Unrestricted Definitive
Notes.  Subject to Section 2.06(a)
hereof, if any holder of a beneficial interest in an Unrestricted Global Note
proposes to exchange such beneficial interest for an Unrestricted Definitive
Note or to transfer such beneficial interest to a Person who takes delivery
thereof in the form of an Unrestricted Definitive Note, then, upon satisfaction
of the applicable conditions set forth in Section 2.06(b)(ii) hereof, the
Trustee shall reduce or cause to be reduced in a corresponding amount pursuant
to Section 2.06(h) hereof, the aggregate principal amount of the
applicable Unrestricted Global Note, and the Company shall execute, and, upon
receipt of an Authentication Order in accordance with Section 2.02 hereof,
the Trustee shall authenticate and deliver an Unrestricted Definitive Note in
the appropriate principal amount to the Person designated by the holder of such
beneficial interest in instructions delivered to the Registrar by the
Depositary and the applicable Participant or Indirect Participant on behalf of
such holder.  Any Unrestricted Definitive
Note issued in exchange for a beneficial interest pursuant to this Section 2.06(c)(iii)
shall be registered in such name or names and in such authorized denomination
or denominations as the holder of such beneficial interest shall designate in
such instructions.  The Trustee shall
deliver such Unrestricted Definitive Notes to the Persons in whose names such
Notes are so registered.  Any
Unrestricted Definitive Note issued in exchange for a beneficial interest
pursuant to this Section 2.06(c)(iii) shall not bear the Private Placement
Legend.


 


(d)         Transfer and Exchange of Definitive Notes for
Beneficial Interests in the Global Notes.


 


(i)             Transfer or
Exchange of Restricted Definitive Notes to Beneficial Interests in Restricted
Global Notes.  If any holder of a
Restricted Definitive Note proposes to exchange such Restricted Definitive Note
for a beneficial interest in a Restricted Global Note or to transfer such
Restricted Definitive Notes to a Person who takes delivery thereof in the form
of a beneficial interest in a Restricted Global Note, then, upon receipt by the
Registrar of the following documentation:


 


(A)  if
the holder of such Restricted Definitive Note proposes to exchange such
Restricted Definitive Note for a beneficial interest in a Restricted Global
Note, a certificate from such holder in the form of Exhibit C hereto, including
the certifications in item (2)(b) thereof;


 


(B)  if
such Restricted Definitive Note is being transferred to a QIB in accordance
with Rule 144A, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (1) thereof;


 


(C)  if
such Restricted Definitive Note is being transferred to a “non-U.S. Person” in
an offshore transaction (as defined in Rule 902(k) of Regulation S) in
accordance with Rule 903 or Rule 904, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (2) thereof;


 


(D)  if
such Restricted Definitive Note is being transferred pursuant to an exemption
from the registration requirements of the Securities Act in accordance with
Rule 144, a certificate to the effect set forth in Exhibit B hereto, including
the certifications in item (3)(a) thereof;


 


(E)  if
such Restricted Definitive Note is being transferred to an Institutional
Accredited Investor in reliance on an exemption from the registration
requirements of the Securities Act other than those listed in clauses


 


33





















 


(B) through (D) above, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required by item (3)(d)
thereof, if applicable; or


 


(F)  if
such Restricted Definitive Note is being transferred to the Company or any of
its Subsidiaries, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof,


 


the
Trustee shall cancel the Restricted Definitive Note, increase or cause to be
increased in a corresponding amount pursuant to Section 2.06(h) hereof,
the aggregate principal amount of, in the case of clause (A) above, the
appropriate Restricted Global Note, in the case of clause (B) above, a 144A
Global Note, in the case of clause (C) above, a Regulation S Global Note, and
in all other cases, a IAI Global Note.


 


(ii)          Transfer or Exchange
of Restricted Definitive Notes to Beneficial Interests in Unrestricted Global
Notes.  A holder of a Restricted
Definitive Note may exchange such Restricted Definitive Note for a beneficial
interest in an Unrestricted Global Note or transfer such Restricted Definitive
Note to a Person who takes delivery thereof in the form of a beneficial
interest in an Unrestricted Global Note only if:


 


(A)  such
exchange or transfer is effected pursuant to a Registered Exchange Offer in
accordance with a Registration Rights Agreement and the holder of such
beneficial interest, in the case of an exchange, or the transferee, in the case
of a transfer, makes any and all certifications in the applicable Letter of
Transmittal (or is deemed to have made such certifications if delivery is made
through the Applicable Procedures) as may be required by such Registration
Rights Agreement;


 


(B)  such
transfer is effected pursuant to a Shelf Registration Statement in accordance
with a Registration Rights Agreement;


 


(C)  such
transfer is effected by a broker-dealer pursuant to an Exchange Offer
Registration Statement in accordance with a Registration Rights Agreement; or


 


(D)  the
Registrar receives the following:


 


(1)          if the holder of such
Restricted Definitive Note proposes to exchange such Restricted Definitive Note
for a beneficial interest in an Unrestricted Global Note, a certificate from
such holder in the form of Exhibit C hereto, including the certifications in
item (1)(c) thereof; or


 


(2)          if the holder of such
Restricted Definitive Note proposes to transfer such Restricted Definitive Note
to a Person who shall take delivery thereof in the form of a beneficial
interest in an Unrestricted Global Note, a certificate from such Holder in the
form of Exhibit B hereto, including the certifications in item (4) thereof;



and, in each such case set forth in this clause (D), if the Registrar so
requests or if the Applicable Procedures so require, an Opinion of Counsel in
form reasonably acceptable to the Registrar to the effect that such exchange or
transfer shall be effected in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private Placement Legend
shall no longer be required in order to maintain compliance with the Securities
Act.


 


34





















 


Upon satisfaction of the
conditions of any of the clauses in this Section 2.06(d)(ii), the Trustee
shall cancel such Restricted Definitive Note and increase or cause to be
increased in a corresponding amount pursuant to Section 2.06(h) hereof,
the aggregate principal amount of the Unrestricted Global Note.


 


(iii)       Transfer or Exchange of
Unrestricted Definitive Notes to Beneficial Interests in Unrestricted Global
Notes.  A holder of an Unrestricted
Definitive Note may exchange such Unrestricted Definitive Note for a beneficial
interest in an Unrestricted Global Note or transfer such Unrestricted
Definitive Note to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note at any time.  Upon receipt of a request for such an
exchange or transfer, the Trustee shall cancel the applicable Unrestricted
Definitive Note and increase or cause to be increased in a corresponding amount
pursuant to Section 2.06(h) hereof the aggregate principal amount of one
of the Unrestricted Global Notes.


 


(iv)      Transfer or Exchange of
Unrestricted Definitive Notes to Beneficial Interests in Restricted Global
Notes Prohibited.  An Unrestricted
Definitive Note may not be exchanged for, or transferred to Persons who take
delivery thereof in the form of, beneficial interests in a Restricted Global
Note.


 


(v)         Issuance of
Unrestricted Global Notes.  If any such
exchange or transfer of a Definitive Note for a beneficial interest in an
Unrestricted Global Note is effected pursuant to clause (ii)(B), (ii)(D) or
(iii) at a time when an Unrestricted Global Note has not yet been issued, the
Company shall issue and, upon receipt of an Authentication Order in accordance
with Section 2.02 hereof, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
principal amount of Definitive Notes so transferred.


 


(e)          Transfer and Exchange of Definitive Notes for
Definitive Notes.  Upon
request by a holder of Definitive Notes and such holder’s compliance with the
provisions of this Section 2.06(e), the Registrar shall register the
transfer or exchange of Definitive Notes.  Prior to such registration of transfer or
exchange, the requesting Holder shall present or surrender to the Registrar the
Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such
holder.  In addition, the requesting
holder shall provide any additional certifications, documents and information,
as applicable, required pursuant to the following provisions of this Section 2.06(e).


 


(i)             Transfer of
Restricted Definitive Notes to Restricted Definitive Notes.  Any Restricted Definitive Note may be
transferred to and registered in the name of Persons who take delivery thereof
in the form of a Restricted Definitive Note if the Registrar receives the
following:


 


(A)  if
the transfer will be made pursuant to Rule 144A, a certificate in the form of
Exhibit B hereto, including the certifications in item (1) thereof;


 


(B)  if
the transfer will be made pursuant to Rule 903 or Rule 904, a certificate in
the form of Exhibit B hereto, including the certifications in item (2) thereof;
and


 


(C)  if
the transfer will be made pursuant to any other exemption from the registration
requirements of the Securities Act, a certificate in the form of Exhibit B
hereto, including the certifications, certificates and Opinion of Counsel
required by item (3) thereof, if applicable.


 


(ii)          Transfer or Exchange
of Restricted Definitive Notes to Unrestricted Definitive Notes.  Any Restricted Definitive Note may be
exchanged by the holder thereof for an Unrestricted Definitive Note or
transferred to a Person or Persons who take delivery thereof in the form of an
Unrestricted Definitive Note only if:


 


35





















 


(A)  such
exchange or transfer is effected pursuant to a Registered Exchange Offer in
accordance with a Registration Rights Agreement and the holder, in the case of
an exchange, or the transferee, in the case of a transfer, makes any and all
certifications in the applicable Letter of Transmittal (or is deemed to have made
such certifications if delivery is made through the Applicable Procedures) as
may be required by a Registration Rights Agreement;


 


(B)  any
such transfer is effected pursuant to a Shelf Registration Statement in
accordance with a Registration Rights Agreement;


 


(C)  any
such transfer is effected by a broker-dealer pursuant to an Exchange Offer
Registration Statement in accordance with a Registration Rights Agreement; or


 


(D)  the
Registrar receives the following:


 


(1)          if the holder of such
Restricted Definitive Note proposes to exchange such Restricted Definitive
Notes for an Unrestricted Definitive Note, a certificate from such holder in
the form of Exhibit C hereto, including the certifications in item (1)(d)
thereof; or


 


(2)          if the holder of such
Restricted Definitive Notes proposes to transfer such Restricted Definitive
Notes to a Person who shall take delivery thereof in the form of an
Unrestricted Definitive Note, a certificate from such holder in the form of
Exhibit B hereto, including the certifications in item (4) thereof;



and, in each such case set forth in this clause (D), if the Registrar so
requests, an Opinion of Counsel in form reasonably acceptable to the Registrar
to the effect that such exchange or transfer complies with the Securities Act
and that the restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain compliance with
the Securities Act.


 


Upon satisfaction of the conditions of any of the clauses of this Section 2.06(e)(ii),
the Trustee shall cancel the prior Restricted Definitive Note and the Company
shall execute, and upon receipt of an Authentication Order in accordance with Section 2.02
hereof, the Trustee shall authenticate and deliver an Unrestricted Definitive
Note in the appropriate aggregate principal amount to the Person designated by
the holder of such prior Restricted Definitive Note in instructions delivered
to the Registrar by such holder.


 


(iii)       Transfer of Unrestricted
Definitive Notes to Unrestricted Definitive Notes.  A holder of Unrestricted Definitive Notes may
transfer such Unrestricted Definitive Notes to a Person who takes delivery
thereof in the form of an Unrestricted Definitive Note.  Upon receipt of a request to register such a
transfer, the Registrar shall register the Unrestricted Definitive Notes
pursuant to the instructions from the holder thereof.


 


(f)            Registered Exchange Offer.  Upon the occurrence of a Registered Exchange
Offer in accordance with a Registration Rights Agreement, the Company shall
issue and, upon receipt of an Authentication Order in accordance with Section 2.02
hereof, the Trustee shall authenticate (A) one or more Unrestricted Global
Notes in an aggregate principal amount equal to the aggregate principal amount
of the beneficial interests in the applicable Restricted Global Notes (1)
tendered for acceptance by Persons that make any and all certifications in the
applicable Letters of Transmittal (or are deemed to have made such
certifications if delivery is made through the Applicable Procedures) as may be
required by such Registration Rights Agreement and (2) accepted for exchange in
such Registered Exchange Offer and (B) Unrestricted Definitive Notes in an
aggregate principal amount equal to the aggregate principal amount of the
Restricted Definitive Notes tendered for acceptance by Persons who made the
foregoing certifications and accepted for exchange in the Registered Exchange
Offer.  Concurrently with the issuance of
such Notes, the Trustee shall reduce or cause to be reduced in a corresponding
amount the aggregate


 


36





















 


principal
amount of the applicable Restricted Global Notes, and the Company shall execute
and, upon receipt of an Authentication Order in accordance with Section 2.02
hereof, the Trustee shall authenticate and deliver to the Persons designated by
the holders of Restricted Definitive Notes so accepted Unrestricted Definitive
Notes in the appropriate aggregate principal amount.


 


(g)         Legends.  The following legends shall appear on the
face of all Global Notes and Definitive Notes issued under this Indenture
unless specifically stated otherwise in the applicable provisions of this
Indenture.


 


(i)             Private Placement
Legend.


 


(A) Except as
permitted by clause (B) below, each Global Note and each Definitive Note (and
all Notes issued in exchange therefor or substitution thereof) shall bear the
legend in substantially the following form:


 


“THIS SECURITY (OR ITS
PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE
ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE NEXT
SENTENCE.  BY ITS ACQUISITION HEREOF OR
OF A BENEFICIAL INTEREST HEREIN, THE HOLDER:


 


(1)          REPRESENTS
THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT) (A “QIB”), (B) IT IS ACQUIRING THIS SECURITY IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, (C) IT IS
AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A)(1), (2), (3)
OR (7) OF REGULATION D UNDER THE SECURITIES ACT) (AN “IAI”) OR (D) IT IS A
PERSON WHO HAS OTHERWISE ACQUIRED THIS SECURITY IN ACCORDANCE WITH THE
PROVISIONS OF PARAGRAPH (2) BELOW;


 


(2)          AGREES
THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE
ISSUER OR ANY OF ITS SUBSIDIARIES, (B) TO A PERSON WHOM THE SELLER REASONABLY
BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN
A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE
TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR 904 OF REGULATION S UNDER
THE SECURITIES ACT, (D) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144
UNDER THE SECURITIES ACT THAT, PRIOR TO SUCH TRANSFER, FURNISHES THE TRUSTEE A
SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
TRANSFER OF THIS SECURITY (THE FORM OF WHICH CAN BE OBTAINED FROM THE TRUSTEE),
(E) TO AN IAI, THAT, PRIOR TO SUCH TRANSFER, FURNISHS THE TRUSTEE A SIGNED
LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
TRANSFER OF THIS SECURITY (THE FORM OF WHICH CAN BE OBTAINED FROM THE TRUSTEE)
AND IN EACH CASE, IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL
AMOUNT OF SECURITIES LESS THAN $250,000, AN OPINION OF COUNSEL ACCEPTABLE TO
THE ISSUER, IF THE ISSUER SO REQUESTS, THAT SUCH TRANSFER COMPLIES WITH THE
SECURITIES ACT, (F) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL
ACCEPTABLE TO THE ISSUER), OR (G) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT AND, IN EACH CASE, IN ACCORDANCE WITH THE
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
APPLICABLE JURISDICTION; AND


 


37





















 


(3)          AGREES
THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY OR AN INTEREST HEREIN
IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.


 


AS USED HEREIN, THE TERMS
“OFFSHORE TRANSACTION” AND “UNITED STATES” HAVE THE MEANINGS GIVEN TO THEM BY
RULE 902 OF REGULATION S UNDER THE SECURITIES ACT.  THE INDENTURE GOVERNING THIS SECURITY
CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER
OF THIS SECURITY IN VIOLATION OF THE FOREGOING.”


 


(B) Notwithstanding
the foregoing, any Global Note or Definitive Note issued pursuant to clauses
(b)(iv), (c)(ii), (c)(iii), (d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f) to this
Section 2.06 (and all Notes issued in exchange therefor or substitution
thereof) shall not bear the Private Placement Legend.


 


(ii)          Global Note Legend.  Each Global Note shall bear a legend in
substantially the following form:


 


“THIS GLOBAL NOTE IS HELD
BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS
NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT
TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE
MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.06
OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT
IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS GLOBAL
NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11
OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR
DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.


 


UNLESS AND UNTIL IT IS
EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT
BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.  UNLESS THIS NOTE 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 NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE
& CO. OR IN SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.”


 


(h)         Cancellation and/or Adjustment of Global Notes.  At such time as all beneficial interests in a
particular Global Note have been exchanged for Definitive Notes or a particular
Global Note has been redeemed, repurchased or cancelled in whole and not in
part, each such Global Note shall be returned to or retained and cancelled by
the Trustee in accordance with Section 2.11 hereof.  At any time prior to such cancellation, if
any beneficial interest in a Global Note is exchanged for or transferred to a
Person who will take delivery thereof in the form of a beneficial interest in
another Global Note or for Definitive Notes, the aggregate principal amount of
Notes represented by such Global Note shall be reduced accordingly and an
endorsement shall be made on such Global Note by the Trustee or by the Depositary
at the direction of the Trustee to reflect such reduction; and if the
beneficial interest is being exchanged for or transferred to a Person who will
take delivery thereof in the form of a beneficial interest in another Global
Note, the aggregate principal amount of such other Global Note shall be


 


38





















 


increased
accordingly and an endorsement shall be made on such Global Note by the Trustee
or by the Depositary at the direction of the Trustee to reflect such increase.


 


(i)             General
Provisions Relating to Transfers and Exchanges.


 


(i)             No service charge
shall be made to a holder of a beneficial interest in a Global Note or to a
Holder of a Definitive Note for any registration of transfer or exchange, 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 any
such transfer taxes or similar governmental charge payable upon exchange or
transfer pursuant to Sections 2.10, 3.06, 4.13, 4.18 and 9.05 hereof).


 


(ii)          All Global Notes and
Definitive Notes issued upon any registration of transfer or exchange of Global
Notes or Definitive Notes shall be the valid obligations of the Company,
evidencing the same debt as the Global Notes or Definitive Notes surrendered
upon such registration of transfer or exchange and shall be entitled to all of
the benefits of this Indenture equally and proportionately with all other Notes
duly issued hereunder.


 


(iii)       Neither the Registrar nor
the Company shall be required (A) to issue, to register the transfer of or to
exchange any Notes during a period beginning at the opening of business 15 days
before the day of any selection of Notes for redemption under Section 3.02
hereof and ending at the close of business on the date of selection, (B) to
register the transfer of or to exchange any Note so selected for redemption in
whole or in part, except the unredeemed portion of any Note being redeemed in
part or (C) to register the transfer of or to exchange a Note between a record
date (including a Regular Record Date) and the next succeeding Interest Payment
Date.


 


(iv)      Prior to due presentment for
the registration of transfer of any Note, the Trustee, any Agent and the
Company may deem and treat the Person in whose name any Note is registered as
the absolute owner of such Note for the purpose of receiving payment of
principal of, premium, if any, and interest on such Note and for all other
purposes, in each case regardless of any notice to the contrary.


 


(v)         All certifications,
certificates and Opinions of Counsel required to be submitted to the Registrar
pursuant to this Section 2.06 to effect a registration of transfer or
exchange may be submitted by facsimile.


 


(vi)      The Trustee is hereby authorized
and directed to enter into a letter of representation with the Depositary in
the form provided by the Company and to act in accordance with such letter.


 


Section 2.07.                         Replacement Notes.


 


If any mutilated Note is
surrendered to the Trustee or the Company and each of the Trustee and the
Company receives evidence to its satisfaction of the destruction, loss or theft
of any Note, the Company shall issue and, upon receipt of an Authentication
Order in accordance with Section 2.02 hereof, the Trustee shall
authenticate a replacement Note.  If
required by the Trustee or the Company, the Holder of such Note shall provide
indemnity that is sufficient, in the judgment of the Trustee or the Company, to
protect the Company, the Trustee, any Agent and any authenticating agent from
any loss that any of them may suffer in connection with such replacement.  If required by the Company, such Holder shall
reimburse the Company for its reasonable expenses in connection with such
replacement.


 


Every replacement Note issued
in accordance with this Section 2.07 shall be the valid obligation of the
Company, evidencing the same debt as the destroyed, lost or stolen Note, and
shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Notes duly issued hereunder.


 


39





















 


Section 2.08.                         Outstanding Notes.


 


(a)          The
Notes outstanding at any time shall be the entire principal amount of Notes
represented by all of the Global Notes and Definitive Notes authenticated by
the Trustee except for those cancelled by it, those delivered to it for
cancellation, those subject to reductions in beneficial interests effected by
the Trustee in accordance with Section 2.06 hereof, and those described in
this Section 2.08 as not outstanding. 
Except as set forth in Section 2.09 hereof, a Note shall not cease
to be outstanding because the Company or an Affiliate of the Company holds the
Note; provided, however,
that Notes held by the Company or a Subsidiary of the Company shall be deemed
not to be outstanding for purposes of Section 3.07(c) hereof.


 


(b)         If
a Note is replaced pursuant to Section 2.07 hereof, it shall cease to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced note is held by a bona fide purchaser.


 


(c)          If
the principal amount of any Note is considered paid under Section 4.01
hereof, it shall cease to be outstanding and interest on it shall cease to
accrue.


 


(d)         If
the Paying Agent (other than the Company, a Subsidiary or an Affiliate of any
thereof) holds, on a redemption date, a Purchase Date or a maturity date, funds
sufficient to pay Notes payable on that date, then on and after that date such
Notes shall be deemed to be no longer outstanding and shall cease to accrue
interest.


 


Section 2.09.                         Treasury Notes.


 


In determining whether
the Holders of the required principal amount of Notes have concurred in any
direction, waiver or consent, Notes owned by the Company, or by any Affiliate
of the Company, shall be considered as though not outstanding, except that for
the purposes of determining whether the Trustee shall be protected in relying
on any such direction, waiver or consent, only Notes that the Trustee has
actual notice are so owned shall be so disregarded.


 


Section 2.10.                         Temporary Notes.


 


Until certificates
representing Notes are ready for delivery, the Company may prepare and, upon
receipt of an Authentication Order in accordance with Section 2.02 hereof,
the Trustee shall authenticate temporary Notes. 
Temporary Notes shall be substantially in the form of Definitive Notes
but may have variations that the Company considers appropriate for temporary
Notes and as shall be reasonably acceptable to the Trustee.  Without unreasonable delay, the Company shall
prepare and the Trustee shall authenticate Global Notes or Definitive Notes in
exchange for temporary Notes, as applicable. 
After preparation of Definitive Notes, the Temporary Note will be
exchangeable for Definitive Notes upon surrender of the Temporary Notes.


 


Holders of temporary
Notes shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Notes duly issued hereunder.


 


Section 2.11.                         Cancellation.


 


The Company at any time
may deliver Notes to the Trustee for cancellation.  The Registrar and Paying Agent shall forward
to the Trustee any Notes surrendered to them for registration of transfer,
exchange or payment.  Upon sole direction
of the Company, the Trustee and no one else shall cancel all Notes surrendered
for registration of transfer, exchange, payment, replacement or cancellation
and shall destroy cancelled Notes (subject to the record retention requirements
of the Exchange Act or other applicable laws) unless by written order, signed
by an Officer of the Company, the Company directs them to be returned to
it.  Certification of the destruction of
all cancelled Notes shall be delivered to the Company from time to time upon
request.  The Company may not issue new
Notes to replace Notes that it has paid or that have been delivered to the
Trustee for cancellation.


 


40





















 


Section 2.12.                         Payment of Interest; Defaulted
Interest.


 


If the Company defaults
in a payment of interest on the Notes, it shall pay the defaulted interest in
any lawful manner plus, to the extent lawful, interest payable on the defaulted
interest, to the Persons who are Holders on a subsequent special record date,
in each case at the rate provided in the Notes and in Section 4.01 hereof.
The Company shall notify the Trustee in writing of the amount of defaulted
interest proposed to be paid on each Note and the date of the proposed payment.
The Company shall fix or cause to be fixed each such special record date and
payment date; provided that no such special record
date shall be less than 10 days prior to the related Interest Payment Date for
such defaulted interest. At least 15 days before the special record date, the
Company (or, upon the written request of the Company, the Trustee in the name
and at the expense of the Company) shall mail or cause to be mailed to Holders
a notice that states the special record date, the related Interest Payment Date
and the amount of such interest to be paid.


 


Section 2.13.                         CUSIP or ISIN Numbers.


 


The Company in issuing
the Notes may use “CUSIP” and/or “ISIN” numbers (if then generally in use),
and, if so, the Trustee shall use “CUSIP” and/or “ISIN” numbers in notices of
redemption or Offers to Purchase as a convenience to Holders; provided, however, that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Notes or as contained in any notice of a redemption or notice of an
Offer to Purchase and that reliance may be placed only on the other
identification numbers printed on the Notes, and any such redemption or Offer
to Purchase shall not be affected by any defect in or omission of such
numbers.  The Company shall promptly
notify the Trustee of any change in the “CUSIP” and/or “ISIN” numbers.


 


Section 2.14.                         Special Interest.


 


If Special Interest is
payable by the Company pursuant to a Registration Rights Agreement and
paragraph 1 of the Notes, the Company shall deliver to the Trustee a
certificate to that effect stating (i) the amount of such Special Interest that
is payable and (ii) the date on which such interest is payable pursuant to Section 4.01
hereof.  Unless and until a Responsible
Officer of the Trustee receives such a certificate or instruction or direction
from the Holders in accordance with the terms of this Indenture, the Trustee
may assume without inquiry that no Special Interest is payable.  The foregoing shall not prejudice the rights
of the Holders with respect to their entitlement to Special Interest as otherwise
set forth in this Indenture or the Notes and pursuing any action against the
Company directly or otherwise directing the Trustee to take any such action in
accordance with the terms of this Indenture and the Notes.  If the Company has paid Special Interest
directly to the Persons entitled to it, the Company shall deliver to the
Trustee an Officers’ Certificate setting forth the details of such payment.


 


Section 2.15.                         Issuance of Additional Notes.


 


The Company shall be entitled, subject to its compliance with Section 4.10
hereof, to issue Additional Notes under this Indenture which shall have
identical terms as the Initial Notes issued on the date hereof, other than with
respect to the date of issuance, issue price and rights under a related
Registration Rights Agreement, if any. 
The Initial Notes issued on the date hereof, any Additional Notes and
all Exchange Notes issued in exchange therefor shall be treated as a single
class for all purposes under this Indenture, including directions, waivers,
amendments, consents, redemptions and Offers to Purchase.


 


With respect to any Additional Notes, the Company shall set forth in a
Board Resolution and an Officers’ Certificate, a copy of each of which shall be
delivered to the Trustee, the following information:


 


(a)          the
aggregate principal amount of such Additional Notes to be authenticated and
delivered pursuant to this Indenture;


 


(b)         the
issue price, the issue date and the CUSIP and/or ISIN number of such Additional
Notes; provided, however, that no Additional
Notes may be issued at a price that would cause such Additional Notes to


 


41





















 


have “original
issue discount” within the meaning of Section 1273 of the Code, other than
a de minimis original issue discount
within the meaning of Section 1273 of the Code; and


 


(c)          whether
such Additional Notes shall be subject to the restrictions on transfer set
forth in Section 2.06 hereof relating to Restricted Global Notes and
Restricted Definitive Notes.


 


Section 2.16.                         Record Date.


 


The record date for purposes of determining the identity of Holders of
Notes entitled to vote or consent to any action by vote or consent or permitted
under this Indenture shall be determined as provided for in TIA Section 316(c).


 


ARTICLE 3.



REDEMPTION AND PREPAYMENT


 


Section 3.01.                         Notices to Trustee.


 


If the Company elects to
redeem Notes pursuant to the optional redemption provisions of Section 3.07
hereof, it shall furnish to the Trustee, at least 30 days (subject to the last
paragraph of Section 3.03) but not more than 60 days before a
redemption date (or such shorter period as allowed by the Trustee), an Officers’
Certificate setting forth (a) the applicable section of this Indenture
pursuant to which the redemption shall occur, (b) the redemption date, (c) the
principal amount of Notes to be redeemed and (d) the appropriate method of
calculation of the redemption price, but need not include the redemption price
itself; the actual redemption price shall be set forth in an Officers’
Certificate delivered to the Trustee no later than two (2) Business Days prior
to the redemption date unless clause (b) of the definition of “Comparable
Treasury Price” is applicable, in which case such Officers’ Certificate should
be delivered by 10:00 a.m. Eastern time on the redemption date.


 


Section 3.02.                         Selection of Notes to Be
Redeemed.


 


If less than all of the
Notes are to be redeemed at any time, the Trustee shall select the Notes to be
redeemed among the Holders of the Notes in compliance with the requirements of
the principal national securities exchange, if any, on which the Notes are
listed or, if the Notes are not so listed, on a pro rata
basis, by lot or in accordance with any other method the Trustee deems fair and
appropriate.  In the event of partial
redemption by lot, the particular Notes to be redeemed shall be selected,
unless otherwise provided herein, not less than 30 nor more than 60 days
prior to the redemption date by the Trustee from the outstanding Notes not
previously called for redemption.


 


The Trustee shall
promptly notify the Company in writing of the Notes selected for redemption
and, in the case of any Note selected for partial redemption, the principal
amount thereof to be redeemed.  Notes and
portions of Notes selected shall be in amounts of $1,000 or integral multiples
thereof; except that if all of the Notes of a Holder are to be redeemed, the
entire outstanding amount of Notes held by such Holder, even if not an integral
multiple of $1,000, shall be redeemed.  Except as provided in the
preceding sentence, provisions of this Indenture that apply to Notes called for
redemption also apply to portions of Notes called for redemption.


 


Section 3.03.                         Notice of Redemption.


 


At least 30 days but
not more than 60 days prior to a redemption date, the Company shall mail
or cause to be mailed, by first class mail, a notice of redemption to each
Holder whose Notes are to be redeemed at such Holder’s registered address
appearing in the Security Register.


 


The notice shall identify
the Notes to be redeemed and shall state:


 


(a)          the
redemption date;


 


42





















 


(b)         the
appropriate method of calculation of the redemption price, but need not include
the redemption price itself; the actual redemption price shall be set forth in
an Officers’ Certificate delivered to the Trustee no later than two (2)
Business Days prior to the redemption date unless clause (b) of the definition
of “Comparable Treasury Price” is applicable, in which case such Officers’
Certificate should be delivered by 10:00 a.m. Eastern Time on the redemption
date;


 


(c)          if
any Note is being redeemed in part, the portion of the principal amount of such
Note to be redeemed and that, after the redemption date upon surrender of such
Note, if applicable, a new Note or Notes in principal amount equal to the
unredeemed portion shall be issued upon cancellation of the original Note;


 


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


 


(e)          that
Notes called for redemption must be surrendered to the Paying Agent to collect
the redemption price;


 


(f)            that,
unless the Company defaults in making such redemption payment, interest on
Notes called for redemption ceases to accrue on and after the redemption date;


 


(g)         the
applicable section of this Indenture pursuant to which the Notes called
for redemption are being redeemed; and


 


(h)         that
no representation is made as to the correctness of the CUSIP and/or ISIN
numbers, if any, listed in such notice or printed on the Notes.


 


At the Company’s request,
the Trustee shall give the notice of redemption in the Company’s name and at
its expense; provided, however, that the
Company shall have delivered to the Trustee, at least 45 days (or such shorter
period allowed by the Trustee), prior to the redemption date, an Officers’
Certificate requesting that the Trustee give such notice (in the name and at
the expense of the Company) and setting forth the information to be stated in
such notice as provided in this Section 3.03.


 


Section 3.04.                         Effect of Notice of Redemption.


 


Once notice of redemption
is mailed in accordance with Section 3.03 hereof, Notes called for
redemption shall become irrevocably due and payable on the redemption date at
the redemption price.  A notice of
redemption may not be conditional.


 


Section 3.05.                         Deposit of Redemption Price.


 


On or prior to 11:00 a.m.
Eastern Time on the Business Day prior to any redemption date, the Company
shall deposit with the Trustee or with the Paying Agent money sufficient to pay
the redemption price of and, if applicable, accrued and unpaid interest on all
Notes to be redeemed on that date.  The
Trustee or the Paying Agent shall promptly, return to the Company any money
deposited with the Trustee or the Paying Agent by the Company in excess of the
amounts necessary to pay the redemption price of, and accrued and unpaid
interest, if any, on, all Notes to be redeemed.


 


If the Company complies
with the provisions of the preceding paragraph, on and after the redemption
date, interest shall cease to accrue on the Notes or the portions of Notes
called for purchase or redemption in accordance with Section 2.08(d)
hereof, whether or not such Notes are presented for payment.  If a Note is redeemed on or after a Regular
Record Date but on or prior to the related Interest Payment Date, then any
accrued and unpaid interest, if any, shall be paid to the Person in whose name
such Note was registered at the close of business on such Regular Record
Date.  If any Note called for redemption
shall not be so paid upon surrender for redemption because of the failure of
the Company to comply with the preceding paragraph, interest shall be paid on
the unpaid principal from the redemption date until such principal is paid, and
to the extent lawful on any interest not paid on such unpaid principal, in each
case at the rate provided in the Notes and in Section 4.01 hereof.


 


43





















 


Section 3.06.                         Notes Redeemed in Part.


 


Upon surrender of a Note
that is redeemed in part, the Company shall issue and, upon receipt of an
authentication order in accordance with Section 2.02 hereof, the Trustee
shall authenticate for the Holder at the expense of the Company a new Note
equal in principal amount to the unredeemed portion of the Note surrendered.


 


Section 3.07.                         Optional Redemption.


 


(a)          Except
as set forth in clauses (b) and (c) of this Section 3.07, the Notes shall
not be redeemable at the option of the Company prior to November 15,
2009.  Starting on November 15,
2009, the Company may redeem all or any portion of the Notes, at once or over
time, after giving the notice required pursuant to Section 3.03 hereof, at
the redemption prices set forth below, plus accrued and unpaid interest,
including Special Interest, if any, to but not including the applicable
redemption date (subject to the right of Holders of record on the relevant
Regular Record Date to receive interest due on the relevant Interest Payment
Date), if redeemed during the 12-month period commencing on November 15,
2009 of the years set forth below, and are expressed as percentages of
principal amount:


 


	
  Year

  	
   

  	
  Redemption

  Price

  	
   

  
	
  2009

  	
   

  	
  103.688

  	
  %

  
	
  2010

  	
   

  	
  102.458

  	
  %

  
	
  2011

  	
   

  	
  101.229

  	
  %

  
	
  2012 and thereafter

  	
   

  	
  100.000

  	
  %

  



 


(b)         At
any time and from time to time, prior to November 15, 2007, the
Company may redeem up to a maximum of 35% of the aggregate principal amount of
the Notes (including any Additional Notes) with the proceeds of one or more
Equity Offerings, at a redemption price equal to 107.375% of the principal
amount thereof, plus accrued and unpaid interest, including Special Interest,
if any, to but not including the redemption date (subject to the right of
Holders of record on the relevant Regular Record Date to receive interest due
on the relevant Interest Payment Date); provided, however, that after giving effect to any such redemption, at
least 65% of the aggregate principal amount of the Notes (including any
Additional Notes) remains outstanding. 
Any such redemption shall be made within 90 days of such Equity Offering
upon not less than 30 nor more than 60 days’ prior notice.


 


(c)          At
any time prior to November 15, 2009, after the completion of a Change of
Control Offer (as defined in Section 4.18) that was accepted by Holders of
not less than 75% of the aggregate principal amount of the Notes then
outstanding, the Company may redeem all of the Notes of any Holder who has not
accepted the Change of Control Offer (the “Untendered Notes”)
upon not less than 30 nor more than 60 days’ prior notice (the “Change of Control Redemption Notice”)
but in no event more than 90 days after the completion of such Change of
Control Offer, such notice to be provided in the manner required under Section 3.03,
at a redemption price equal to the greater of:


 


(i)             101%
of the principal amount of the Untendered Notes; and


 


(ii)          the sum of the present
values of (A) the redemption price of the Notes as of November 15, 2009
(as set forth in clause (a) above) and (B) the remaining scheduled payments of
interest from the redemption date (the “Change of Control
Redemption Date”) through November 15, 2009, but excluding
accrued and unpaid interest through the Change of Control Redemption Date and
excluding Special Interest, discounted to the Change of Control Redemption Date
(assuming a 360-day year consisting of twelve 30-day months) at the Treasury
Rate plus 50 basis points;


 


plus, in either case, accrued
and unpaid interest, including Special Interest, if any, to but not including
the Change of Control Redemption Date (subject to the right of Holders of
record on the relevant Regular Record Date to receive interest due on the
relevant Interest Payment Date).


 


44





















 


Any Change of Control
Redemption Notice pursuant to this Section 3.07(c) shall include the
applicable method of calculation of the redemption price but need not include
the redemption price itself.  The actual
redemption price, calculated as described above, shall be set forth in an
Officers’ Certificate delivered to the Trustee no later than two Business Days
prior to the Change of Control Redemption Date unless clause (b) of the
definition of “Comparable Treasury Price” is applicable, in which case such
Officers’ Certificate should be delivered by 10:00 a.m. Eastern time on the
Change of Control Redemption Date.


 


(d)         Any
prepayment pursuant to this Section 3.07 shall be made pursuant to the
provisions of Sections 3.01 through 3.06 hereof.


 


Section 3.08.                         Mandatory Redemption.


 


(a)          If
the Spin-Off is not consummated on or prior to 11:59 pm, New York City time, on
November 30, 2004 (the “Special Mandatory
Redemption Event”), then the Company shall notify the Trustee of
such Special Mandatory Redemption Event, and the Company shall redeem all of
the Notes (the “Special Mandatory Redemption”)
within two Business Days of the date of the Special Mandatory Redemption Event,
at a redemption price equal to 100% of the principal amount of the Notes, plus
accrued and unpaid interest, if any, to but not including the redemption date
(the “Special Mandatory Redemption Payment”)
(subject to the right of Holders of record on the relevant Regular Record Date
to receive interest due on the relevant Interest Payment Date).  The Company shall commence the Special
Mandatory Redemption by sending or causing to be sent on the Business Day
following such Special Mandatory Redemption Event, by first class mail, with a
copy to the Trustee, a notice of redemption to each Holder at such Holder’s
registered address appearing in the Security Register, which notice shall
state:


 


(1)                                  that
the Special Mandatory Redemption is being made pursuant to this Section 3.08;


 


(2)                                  the
redemption date and the Special Mandatory Redemption Payment; provided, however, that
the redemption date shall be the second Business Day after the Special
Mandatory Redemption Event (the “Special Mandatory
Redemption Date”);


 


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


 


(4)                                  that
the Notes must be surrendered to the Paying Agent to collect the Special
Mandatory Redemption Payment; and


 


(5)                                  that,
unless the Company defaults in making such Special Mandatory Redemption
Payment, interest on the Notes shall cease to accrue on and after the Special
Mandatory Redemption Date.


 


(b)  Except as
set forth in this Section 3.08, the Company shall not be required to make
any other mandatory redemption or sinking fund payments with respect to, or
offer to purchase, the Notes.


 


Section 3.09.                         Offer To Purchase.


 


(a)          In
the event that, pursuant to Section 4.13 or 4.18 hereof, the Company shall
be required to commence a Prepayment Offer or a Change of Control Offer (each,
an “Offer to Purchase”), it shall follow
the procedures specified below.


 


(b)         The
Company shall cause a notice of the Offer to Purchase to be sent at least once
to the Dow Jones News Service or similar
business news service in the United States.


 


(c)          The
Company shall commence the Offer to Purchase by sending or causing to be sent,
by first-class mail, with a copy to the Trustee, to each Holder at such Holder’s
address appearing in the Security Register, a notice the terms of which shall
govern the Offer to Purchase stating:


 


45





















 


(i)                  that the Offer
to Purchase is being made pursuant to this Section 3.09 and Section 4.13
or Section 4.18, as the case may be, and, in the case of a Change of
Control Offer, that a Change of Control has occurred, the circumstances and
relevant facts regarding the Change of Control and that a Change of Control
Offer is being made pursuant to Section 4.18;


 


(ii)               the principal
amount of Notes required to be purchased pursuant to Section 4.13 or Section 4.18,
as the case may be (the “Offer Amount”),
the purchase price set forth in Section 4.13 or Section 4.18, as
applicable (the “Purchase Price”), the Offer
Period and the Purchase Date (each as defined below);


 


(iii)            except as provided in
clause (ix), that all Notes timely tendered and not withdrawn shall be accepted
for payment;


 


(iv)           that any Note not
tendered or accepted for payment shall continue to accrue interest;


 


(v)              that, unless the
Company defaults in making such payment, any Note accepted for payment pursuant
to the Offer to Purchase shall cease to accrue interest on and after the
Purchase Date;


 


(vi)           that Holders electing
to have a Note purchased pursuant to an Offer to Purchase may elect to have
Notes purchased in integral multiples of $1,000 only;


 


(vii)        that Holders electing to
have a Note purchased pursuant to any Offer to Purchase shall be required to
surrender the Note, with the form entitled “Option of Holder to Elect Purchase”
on the reverse of the Note completed, or transfer by book-entry transfer, to
the Company, the Depositary, if appointed by the Company, or a Paying Agent at
the address specified in the notice before the close of business on the third
Business Day before the Purchase Date;


 


(viii)  that Holders shall be entitled to withdraw
their election if the Company, the Depositary or the Paying Agent, as the case
may be, receives, not later than the expiration of the Offer Period, a
telegram, facsimile transmission or letter setting forth the name of the
Holder, the principal amount of the Note (or portions thereof) the Holder
delivered for purchase and a statement that such Holder is withdrawing his
election to have such Note purchased;


 


(ix)             that, in the case of
a Prepayment Offer, if the aggregate principal amount of Notes surrendered by
Holders exceeds the Offer Amount, the Company shall select the Notes to be
purchased on a pro rata basis (with such
adjustments as may be deemed appropriate by the Company so that only Notes in
denominations of $1,000 or integral multiples thereof shall be purchased);


 


(x)                that Holders whose
Notes were purchased in part shall be issued new Notes equal in principal
amount to the unpurchased portion of the Notes surrendered (or transferred by
book-entry transfer); and


 


(xi)        any other procedures the
Holders must follow in order to tender their Notes (or portions thereof) for
payment and the procedures that Holders must follow in order to withdraw an
election to tender Notes (or portions thereof) for payment.


 


(d)         The
Offer to Purchase shall remain open for a period of at least 30 days but no
more than 60 days following its commencement, except to the extent that a
longer period is required by applicable law (the “Offer
Period”).  No later than
five (5) Business Days (and in any event no later than the 90th day following
the Change of Control) after the termination of the Offer Period (the “Purchase Date”), the Company shall
purchase the Offer Amount or, if less than the Offer Amount has been tendered,
all Notes tendered in response to the Offer to Purchase.


 


46





















 


Payment
for any Notes so purchased shall be made in the same manner as interest
payments are made.  The Company shall
publicly announce the results of the Offer to Purchase on the Purchase Date.


 


(e)          On
or prior to the Purchase Date, the Company shall, to the extent lawful:


 


(i)             accept for payment
(on a pro rata basis to the extent necessary
in connection with a Prepayment Offer), the Offer Amount of Notes or portions
of Notes properly tendered and not withdrawn pursuant to the Offer to Purchase,
or if less than the Offer Amount has been tendered, all Notes tendered;


 


(ii)          deposit with the Paying
Agent funds in an amount equal to the Purchase Price in respect of all Notes or
portions of Notes properly tendered; and


 


(iii)       deliver or cause to be delivered
to the Trustee the Notes properly accepted together with an Officers’
Certificate stating the aggregate principal amount of Notes or portions of
Notes being purchased by the Company and that such Notes or portions thereof
were accepted for payment by the Company in accordance with the terms of this Section 3.09.


 


(f)            The
Paying Agent (or the Company, if acting as the Paying Agent) shall promptly
(but in the case of a Change of Control, not later than 90 days from the date
of the Change of Control) deliver to each tendering Holder the Purchase
Price.  In the event that any portion of
the Notes surrendered is not purchased by the Company, the Company shall
promptly execute and issue a new Note in a principal amount equal to such
unpurchased portion of the Note surrendered, and, upon receipt of an
Authentication Order in accordance with Section 2.02 hereof, the Trustee
shall authenticate and deliver (or cause to be transferred by book-entry) such
new Note to such Holder, in a principal amount equal to any unpurchased portion
of the Note surrendered; provided, however, that each such new Note shall be in a principal
amount of $1,000 or an integral multiple thereof.  Any Note not so accepted shall be promptly
mailed or delivered by the Company to the Holder thereof.


 


(g)         If
the Purchase Date is on or after a Regular Record Date and on or before the
related Interest Payment Date, any accrued and unpaid interest shall be paid to
the Person in whose name a Note is registered at the close of business on such
Regular Record Date, and no additional interest shall be payable to Holders who
tender Notes pursuant to the Offer to Purchase.


 


(h)         The
Company shall comply, to the extent applicable, with the requirements of Rule
14e-1 under the Exchange Act and any other securities laws and regulations
thereunder to the extent those laws and regulations are applicable in
connection with the Offer to Purchase. 
To the extent that the provisions of any securities laws or regulations
conflict with Sections 4.13 or 4.18, as applicable, this Section 3.09 or
other provisions of this Indenture, the Company shall comply with applicable
securities laws and regulations and shall not be deemed to have breached its
obligations under Sections 4.13 or 4.18, as applicable, this Section 3.09
or such other provision by virtue of such compliance.


 


(i)             Other
than as specifically provided in this Section 3.09, any purchase pursuant
to this Section 3.09 shall be made in accordance with the provisions of Section 3.01
through 3.06 hereof.


 


ARTICLE 4.



COVENANTS


 


Section 4.01.                         Payment of Notes.


 


The Company shall pay or
cause to be paid the principal of, premium, if any, and interest on, the Notes
on the dates and in the manner provided in this Indenture and the Notes.  Principal, premium, if any, and interest
shall be considered paid on the date due if the Paying Agent, if other than the
Company or a Subsidiary thereof, holds as of 10:00 a.m Eastern Time on the due
date money deposited by the Company in immediately available funds and
designated for and sufficient to pay all principal, premium, if any, and
interest then due.  Such


 


47





















 


Paying Agent shall
return to the Company promptly any money (including accrued interest) that
exceeds such amount of principal, premium, if any, and interest paid on the
Notes.  The Company shall pay Special
Interest, if any, in the same manner, on the dates and in the amounts set forth
in a Registration Rights Agreement, the Notes and this Indenture.  If a payment date is a Legal Holiday at a
place of payment, payment may be made at that place on the next succeeding day
that is not a Legal Holiday, and no interest shall accrue on such payment for
the intervening period.


 


The Company shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal and premium, if any, from time to time on
demand at a rate that is 1% per annum in excess of the rate then in effect; it
shall pay interest (including post-petition interest in any proceeding under
any Bankruptcy Law) on overdue installments of interest (without regard to any
applicable grace periods), from time to time on demand at the same rate to the
extent lawful.


 


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


 


Section 4.02.                         Maintenance of Office or Agency.


 


(a)          The
Company shall maintain in the Borough of Manhattan, The City of New York, an
office or agency (which may be an office or drop facility of the Trustee or an
affiliate of the Trustee, Registrar or co-registrar) where Notes may be
presented or surrendered for registration of transfer or for exchange and where
notices and demands to or upon the Company in respect of the Notes and this
Indenture may be served.  The Company
shall give prompt written notice to the Trustee of the location, and any change
in the location, of such office or agency. 
If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at
the Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.


 


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


 


(c)          The
Company hereby designates the Corporate Trust Office of the Trustee, as one
such office, drop facility or agency of the Company in accordance with Section 2.03
hereof.


 


Section 4.03.                         SEC Reports.


 


Notwithstanding that the
Company may not be subject to the reporting requirements of Section 13 or
15(d) of the Exchange Act, the Company shall file with the Commission and provide
the Trustee and the Holders with such annual reports and such information,
documents and other reports as are specified in Sections 13 and 15(d) of
the Exchange Act and applicable to a U.S. corporation subject to such Sections,
such information, documents and reports to be so filed with the Commission at
the times specified for the filing of such information, documents and reports
under such Sections and provided to the Trustee and the Holders promptly
following such filing; provided, however, that the Company shall not be so obligated to file
such information, documents and reports with the Commission if the Commission
does not permit such filings, in which case such information, documents and
reports shall be provided to the Trustee and the Holders promptly after such
filing with the Commission would otherwise have been required.


 


Section 4.04.                         Compliance Certificate.


 


(a)          The
Company shall deliver to the Trustee, within 90 days after the end of each
fiscal year, an Officers’ Certificate stating that a review of the activities
of the Company, the Subsidiary Guarantors and their respective Subsidiaries
during the preceding fiscal year has been made under the supervision of the
signing Officers with a view to determining whether the Company, the Subsidiary
Guarantors and their respective Subsidiaries have kept, observed, performed and
fulfilled their obligations under this Indenture, and further stating, as to
each such


 


48





















 


Officer
signing such certificate, that to the best of his or her knowledge the Company,
the Subsidiary Guarantors and their respective Subsidiaries have kept,
observed, performed and fulfilled each and every covenant contained in this
Indenture and are not in default in the performance or observance of any of the
terms, provisions and conditions of this Indenture (or, if a Default or Event
of Default shall have occurred, describing all such Defaults or Events of
Default of which he or she may have knowledge and what action the Company is taking
or proposes to take with respect thereto) and that to the best of his or her
knowledge no event has occurred and remains in existence by reason of which
payments on account of the principal of, premium, if any, or interest on the
Notes is prohibited or if such event has occurred, a description of the event
and what action the Company is taking or proposes to take with respect thereto.


 


(b)         The
Company shall otherwise comply with TIA §314(a)(2).


 


(c)          The
Company shall deliver to the Trustee, within 30 days after the occurrence
thereof, written notice in the form of an Officers’ Certificate of any event
that with the giving of notice or the lapse of time or both would become an
Event of Default, its status and what action the Company is taking or proposes
to take with respect thereto.


 


Section 4.05.                         Taxes.


 


The Company shall pay,
and shall cause each of its Subsidiaries to pay, prior to delinquency, all
material taxes, assessments and governmental levies, except such as are being
contested in good faith and by appropriate proceedings or where the failure to
effect such payment is not adverse in any material respect to the Holders.


 


Section 4.06.                         Stay, Extension and Usury Laws.


 


The Company and the
Subsidiary Guarantors covenant (to the extent that they may lawfully do so)
that they shall not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay, extension or usury law
wherever enacted, now or at any time hereafter in force, that may affect the
covenants or the performance of this Indenture; and the Company and the
Subsidiary Guarantors hereby expressly waive (to the extent that they may
lawfully do so) all benefit or advantage of any such law, and covenant (to the
extent that they may lawfully do so) that they shall not, by resort to any such
law, hinder, delay or impede the execution of any power herein granted to the
Trustee, but shall suffer and permit the execution of every such power as
though no such law has been enacted.


 


Section 4.07.                         Corporate Existence.


 


Subject to Article 5
hereof, the Company shall do or cause to be done all things necessary to
preserve and keep in full force and effect (i) its corporate existence, and the
corporate, partnership or other existence of each Restricted Subsidiary, in
accordance with the respective organizational documents (as the same may be
amended from time to time) of the Company or any such Restricted Subsidiary and
(ii) the rights (charter and statutory), licenses and franchises of the Company
and its Restricted Subsidiaries; provided, however,
that the Company shall not be required to preserve any such right, license or
franchise, or the corporate, partnership or other existence of any Restricted
Subsidiary, if the Board of Directors shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Company
and its Restricted Subsidiaries, taken as a whole, and that the loss thereof is
not adverse in any material respect to the Holders, or that such preservation
is not necessary in connection with any transaction not prohibited by this
Indenture.


 


Section 4.08.                         Payments for Consents.


 


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


 


49





















 


Section 4.09.                         Covenant Suspension.


 


During any period of time
that:


 


(a) the Notes have Investment Grade Ratings from
both Rating Agencies; and


 


(b) no Default or Event of Default has occurred
and is continuing under this Indenture,


 


the Company and the Restricted Subsidiaries shall not
be subject to:


 


(1)          Section 4.10,


 


(2)          Section 4.11,


 


(3)          Section 4.13,


 


(4)          Section 4.14,


 


(5)          Section 4.15,


 


(6)          clauses (a)(1) and (b)
of Section 4.16,


 


(7)          clause (x) of
the third paragraph (and such clause (x) as referred to in the first
paragraph) of Section 4.17, and


 


(8)          clause (v) of the
first and second paragraphs of Section 5.01


 


(collectively, the “Suspended
Covenants”), and payment of the Notes may not be accelerated
because of an Event of Default specified in clauses (iii), (iv) or (v) of Section 6.01,
in each case with respect to the Suspended Covenants only.  In the event that the Company and the
Restricted Subsidiaries are not subject to the Suspended Covenants and
corresponding Events of Default for any period of time as a result of the
preceding sentence and, subsequently, one or both of the Rating Agencies
withdraws its ratings or downgrades the ratings assigned to the Notes below the
required Investment Grade Ratings or a Default or Event of Default occurs and
is continuing, then the Company and the Restricted Subsidiaries shall
thereafter again be subject to the Suspended Covenants and corresponding Events
of Default, and compliance with the Suspended Covenants with respect to
Restricted Payments made after the time of such withdrawal, downgrade, Default
or Event of Default shall be calculated in accordance with the terms of Section 4.11
as though such Section 4.11 had been in effect during the entire period of
time from the Issue Date.


 


Section 4.10.                         Limitation on Debt.


 


The Company shall not,
and shall not permit any Restricted Subsidiary to, Incur, directly or
indirectly, any Debt unless, after giving effect to the application of the
proceeds thereof, no Default or Event of Default would occur as a consequence
of such Incurrence or be continuing following such Incurrence and either
(1) such Debt is Debt of the Company or a Subsidiary Guarantor and, after
giving effect to the Incurrence of such Debt and the application of the
proceeds thereof, the Consolidated Interest Coverage Ratio would be greater than
2.00 to 1.00, or (2) such Debt is Permitted Debt.


 


The term “Permitted Debt” is defined to
include the following:


 


(a) (i) Debt of the Company evidenced by the
Initial Notes and the Exchange Notes issued in exchange for such Initial Notes
and in exchange for any Additional Notes and (ii) Debt of the Subsidiary
Guarantors evidenced by Subsidiary Guaranties relating to the Initial Notes
issued in this offering and the Exchange Notes issued in exchange for such
Initial Notes and in exchange for any Additional Notes;


 


50





















 


(b) Debt of the Company or a Restricted Subsidiary
under Credit Facilities, provided that
the aggregate principal amount of all such Debt under Credit Facilities at
any one time outstanding shall not exceed the greater of (i) $150.0 million,
which amount shall be permanently reduced by the amount of Net Available Cash
used to Repay Debt under Credit Facilities and not subsequently reinvested in
Additional Assets or used to purchase Notes or Repay other Debt, pursuant to Section 4.13
and (ii) the sum of (A) 85% of the book value of the accounts receivable of the
Company and the Restricted Subsidiaries and (B) 75% of the book value of the
inventory of the Company and the Restricted Subsidiaries, in each case as of
the most recently ended quarter of the Company for which financial statements
of the Company are publicly available;


 


(c) Debt of the Company or a Restricted
Subsidiary in respect of Capital Lease Obligations and Purchase Money Debt, provided that:


 


(1) the aggregate principal amount of such Debt
does not exceed the Fair Market Value (on the date of the Incurrence thereof)
of the Property acquired, constructed or leased, and


 


(2) the aggregate principal amount of all Debt
Incurred and then outstanding pursuant to this clause (c) (together with
all Permitted Refinancing Debt Incurred and then outstanding in respect of Debt
previously Incurred pursuant to this clause (c)) does not exceed 5% of
Consolidated Tangible Assets;


 


(d) Debt of the Company owing to and held by any
Restricted Subsidiary and Debt of a Restricted Subsidiary owing to and held by
the Company or any Restricted Subsidiary; provided, however, that:


 


(1) if the Company or any Subsidiary Guarantor is the
obligor on such Debt and the lender is a Restricted Subsidiary that is not a
Subsidiary Guarantor, such Debt shall be expressly subordinated to the prior
payment in full in cash of all obligations with respect to the Notes and the
applicable Subsidiary Guaranty, as the case may be; and


 


(2) any subsequent issue or transfer of Capital Stock
or other event that results in any such Restricted Subsidiary ceasing to be a
Restricted Subsidiary or any subsequent transfer of any such Debt (except to
the Company or a Restricted Subsidiary) shall be deemed, in each case, to
constitute the Incurrence of such Debt by the issuer thereof;


 


(e) Debt under Interest Rate Agreements entered
into by the Company or a Restricted Subsidiary for the purpose of limiting
interest rate risk in the ordinary course of the financial management of the
Company or such Restricted Subsidiary and not for speculative purposes, provided that the obligations under such agreements are
directly related to payment obligations on Debt otherwise permitted by the
terms of this Section 4.10;


 


(f) Debt under Currency Exchange Protection Agreements
entered into by the Company or a Restricted Subsidiary for the purpose of
limiting currency exchange rate risks directly related to transactions entered
into by the Company or such Restricted Subsidiary in the ordinary course of
business and not for speculative purposes;


 


(g) Debt under Commodity Price Protection Agreements
entered into by the Company or a Restricted Subsidiary in the ordinary course
of the financial management of the Company or such Restricted Subsidiary and
not for speculative purposes;


 


(h) Debt in connection with one or more standby
letters of credit or performance bonds issued by the Company or a Restricted
Subsidiary in the ordinary course of business or pursuant to self-insurance
obligations and not in connection with the borrowing of money or the obtaining
of advances or credit;


 


(i) Guarantees by the Company or any Restricted
Subsidiary of Debt or any other obligation of the Company or any Restricted
Subsidiary that the Company or such Restricted Subsidiary could otherwise have
Incurred pursuant to this Section 4.10;


 


51










 













(j) Debt of the Company or a Restricted Subsidiary
Incurred in the ordinary course of business relating to (i) workers’
compensation claims, (ii) payment obligations in connection with self-insurance
or similar obligations and (iii) bankers’ acceptances, performance, surety,
judgment, appeal and similar bonds, instruments or obligations;


 


(k) Debt of the Company or a Restricted Subsidiary
arising from the honoring of a check, draft or similar instrument drawn against
insufficient funds, provided such
Debt is extinguished within five Business Days of the Company or a Restricted
Subsidiary receiving notice;


 


(l) Debt of the Company or a Restricted Subsidiary
arising from agreements providing for indemnification, purchase price
adjustment, earn-out or similar obligations, in each case either
(i) incurred under the Spin-Off Agreements or (ii) incurred or assumed in
connection with the disposition of any business or assets of the Company or a
Restricted Subsidiary otherwise permitted by and in accordance with the provisions
of this Indenture;


 


(m) Debt of the Company or a Restricted Subsidiary
Incurred to finance the Terrace Bay Co-Generation Facility in an aggregate
principal amount outstanding at any one time not to exceed $25.0 million;


 


(n) Debt of the Company or a Restricted
Subsidiary outstanding on the Issue Date not otherwise described in clauses
(a) through (m) above;


 


(o) Debt of the Company or a Restricted
Subsidiary in an aggregate principal amount outstanding at any one time not to
exceed $50.0 million; and


 


(p) Permitted Refinancing Debt Incurred in
respect of Debt Incurred pursuant to clause (1) of the first paragraph of
this covenant and clauses (a), (c) and (n) above.


 


Notwithstanding anything to the contrary contained in this Section
4.10, accrual of interest, accretion or amortization of original issue discount
and the payment of interest or dividends in the form of additional Debt, as
well as covenants, guarantees or obligations with respect to letters of credit
supporting Debt already included in determining compliance with this Section
4.10, will be deemed not to be an Incurrence of Debt for purposes of this
Section 4.10.  In addition, the maximum
amount of Debt that the Company or any Restricted Subsidiary may Incur pursuant
to this Section 4.10 will not be deemed to be exceeded with respect to any
outstanding Debt solely as a result of the fluctuation in exchange rates of
currencies.


 


For purposes of determining compliance with this Section 4.10, in the
event that an item of Debt meets the criteria of more than one of the
categories of Permitted Debt described in clauses (a) through (o) above or is
entitled to be incurred pursuant to clause (1) of the first paragraph of this
Section 4.10, the Company shall, in its sole discretion, classify (or later
reclassify in whole or in part, in its sole discretion) such item of Debt in
any manner that complies with this Section 4.10.


 


Section 4.11.        Limitation on Restricted
Payments.


 


The Company shall not make, and shall not permit any Restricted
Subsidiary to make, directly or indirectly, any Restricted Payment if at the
time of, and after giving effect to, such proposed Restricted Payment,


 


(a) a Default or Event of Default shall have
occurred and be continuing,


 


(b) the Company could not Incur at least $1.00 of
additional Debt pursuant to clause (1) of the first paragraph of Section 4.10,
or


 


(c) the aggregate amount of such Restricted
Payment and all other Restricted Payments declared or made since the Issue Date
(the amount of any Restricted Payment, if made other than in cash, to be based
upon Fair Market Value at the time of such Restricted Payment) would exceed an
amount equal to the sum of:


 


52





















 


(1) 50%
of the aggregate amount of Consolidated Net Income accrued during the period
(treated as one accounting period) from the beginning of the fiscal quarter
during which the Issue Date occurs to the end of the most recent fiscal quarter
for which financial statements of the Company are publicly available (or if the
aggregate amount of Consolidated Net Income for such period shall be a deficit,
minus 100% of such deficit), plus


 


(2) 100% of the
Capital Stock Sale Proceeds, plus


 


(3) the sum of:


 


(A) the aggregate net cash proceeds received by
the Company or any Restricted Subsidiary from the issuance or sale after the
Issue Date of convertible or exchangeable Debt that has been converted into or
exchanged for Capital Stock (other than Disqualified Stock) of the Company, and


 


(B) the
aggregate amount by which Debt (other than Subordinated Obligations) of the
Company or any Restricted Subsidiary is reduced on the Company’s consolidated
balance sheet on or after the Issue Date upon the conversion or exchange of any
Debt issued or sold on or prior to the Issue Date that is convertible or
exchangeable for Capital Stock (other than Disqualified Stock) of the Company,


 


excluding, in the case of
clause (A) or (B):


 


(x) any
such Debt issued or sold to the Company or a Subsidiary of the Company or an
employee stock ownership plan or trust established by the Company or any such
Subsidiary for the benefit of their employees, and


 


(y) the
aggregate amount of any cash or other Property distributed by the Company or
any Restricted Subsidiary upon any such conversion or exchange, plus


 


(4) an
amount equal to the sum of:


 


(A) the net reduction in Investments in any
Person other than the Company or a Restricted Subsidiary resulting from
dividends, repayments, forgiveness or cancellation of loans or advances or
other transfers of Property, in each case to the Company or any Restricted
Subsidiary from such Person, and


 


(B) the portion (proportionate to the Company’s
equity interest in such Unrestricted Subsidiary) of the Fair Market Value of
the net assets of an Unrestricted Subsidiary at the time such Unrestricted
Subsidiary is designated a Restricted Subsidiary; provided,
however, that the foregoing sum shall
not exceed, in the case of any Person, the amount of Investments previously
made (and treated as a Restricted Payment) by the Company or any Restricted
Subsidiary in such Person.


 


Notwithstanding the foregoing limitation, the Company
may:


 


(a) pay dividends on its Capital Stock within
60 days of the declaration thereof if, on the declaration date, such
dividends could have been paid in compliance with this Indenture; provided, however, that
at the time of such payment of such dividend, no Default or Event of Default
shall have occurred and be continuing (or result therefrom); provided further, however, that such dividend shall be included
in the calculation of the amount of Restricted Payments;


 


(b) purchase, repurchase, redeem, legally
defease, acquire or retire for value Capital Stock of the Company or of a
Restricted Subsidiary or Subordinated Obligations in exchange for, or out of
the proceeds of the substantially concurrent sale of, Capital Stock of the
Company (other than Disqualified Stock and other than Capital Stock issued or
sold to a Subsidiary of the Company or an employee stock ownership plan or
trust established by the Company or any such Subsidiary for the benefit of
their employees); provided, however,
that


 


53





















 


(1) such
purchase, repurchase, redemption, legal defeasance, acquisition or retirement
shall be excluded in the calculation of the amount of Restricted Payments, and


 


(2) the
Capital Stock Sale Proceeds from such exchange or sale shall be excluded from
the calculation pursuant to clause (c)(2) above;


 


(c) purchase, repurchase, redeem, legally defease,
acquire or retire for value any Subordinated Obligations in exchange for, or
out of the proceeds of the substantially concurrent sale of, Permitted
Refinancing Debt; provided, however,
that such purchase, repurchase, redemption, legal defeasance, acquisition or
retirement shall be excluded in the calculation of the amount of Restricted
Payments;


 


(d)
purchase, repurchase or redeem any Subordinated Obligations, the Incurrence of
which was permitted pursuant to Section 4.10, pursuant to a right of the
holders thereof to require the Company to effect such purchase, repurchase or
redemption upon the occurrence of a change of control; provided,
however, that the Company shall have
first made a Change of Control Offer as required by Section 4.18; and provided further, however, that such purchase, repurchase or
redemption shall be included in the calculation of the amount of Restricted
Payments;


 


(e)
make a Restricted Payment, if at the time the Company or any Restricted
Subsidiary first Incurred a commitment for such Restricted Payment, such
Restricted Payment could have been made; provided, however,
that all commitments Incurred and outstanding shall be treated as if such
commitments were Restricted Payments expended by the Company or a Restricted
Subsidiary at the time the commitments were Incurred, except that commitments
Incurred and outstanding that are treated as a Restricted Payment expended by
the Company or a Restricted Subsidiary and that are terminated shall no longer
be treated as a Restricted Payment expended by the Company or a Restricted
Subsidiary upon the termination of such commitment; provided
further, however, that
such payments shall be included in the calculation of the amount of Restricted
Payments;


 


(f)
beginning on January 1, 2005, repurchase shares of, or options to purchase
shares of, common stock of the Company or any of its Subsidiaries from current
or former officers, directors or employees of the Company or any of its
Subsidiaries (or permitted transferees of such current or former officers,
directors or employees), pursuant to the terms of agreements (including
employment agreements) or plans (or amendments thereto) approved by the Board
of Directors under which such individuals purchase or sell, or are granted the
option to purchase or sell, shares of such common stock; provided,
however, that:


 


(1) the
aggregate amount of such repurchases shall not exceed $3.0 million in any
calendar year plus the aggregate amount by which repurchases in each of the
prior two calendar years was less than $3.0 million, and


 


(2) at
the time of such repurchase, no Default or Event of Default shall have occurred
and be continuing (or result therefrom);


 


provided further, however, that such repurchases shall be included in the
calculation of the amount of Restricted Payments;


 


(g) the repurchase of equity interests of the Company
or any Restricted Subsidiary deemed to occur upon the exercise of stock options
upon the surrender of equity interests to pay the exercise price of such
options;


 


(h) pay regular dividends on the Company’s outstanding
common stock in an amount which does not exceed $8 million in the aggregate in
any calendar year; provided, however,
that at the time of such dividend, no Default or Event of Default shall have
occurred and be continuing (or result therefrom); and provided
further, however, that
such dividends shall be included in the calculation of the amount of Restricted
Payments;


 


(i) make payments on intercompany Debt, the Incurrence
of which was permitted pursuant to Section 4.10; provided,
however, that, except with respect to intercompany Debt Incurred by
the Company or a Subsidiary Guarantor, no Default or Event of Default has
occurred and is continuing or would otherwise result therefrom;


 


54





















 


provided further, however, that
such payments shall be excluded in the calculation of the amount of Restricted
Payments; and


 


(j) make other Restricted Payments in an amount which
does not exceed $15.0 million in the aggregate; provided,
however, that, at the time of any such payment, no Default or Event
of Default has occurred and is continuing or would otherwise result therefrom; provided further, however, that such payment shall be
excluded from the calculation of the amount of Restricted Payments.


 


Section 4.12.        Limitation on Liens.


 


The Company shall not, and shall not permit any
Restricted Subsidiary to, directly or indirectly, Incur or suffer to exist, any
Lien (other than Permitted Liens) upon any of its Property (including Capital
Stock of a Restricted Subsidiary), whether owned at the Issue Date or
thereafter acquired, or any interest therein or any income or profits
therefrom, unless it has made or will make effective provision whereby the
Notes or the applicable Subsidiary Guaranty will be secured by such Lien
equally and ratably with (or, if such other Debt constitutes Subordinated
Obligations, prior to) all other Debt of the Company or any Restricted
Subsidiary secured by such Lien for so long as such other Debt is secured by
such Lien.


 


Section 4.13.        Limitation on Asset Sales.


 


(a)  The Company
shall not, and shall not permit any Restricted Subsidiary to, directly or
indirectly, consummate any Asset Sale unless:


 


(i) the Company or such Restricted Subsidiary
receives consideration at the time of such Asset Sale at least equal to the
Fair Market Value of the Property subject to such Asset Sale;


 


(ii) at least 75% of the consideration paid to
the Company or such Restricted Subsidiary in connection with such Asset Sale is
in the form of cash or Cash Equivalents or the assumption by the purchaser of
liabilities of the Company or any Restricted Subsidiary (other than contingent
liabilities or liabilities that are by their terms subordinated to the Notes or
the applicable Subsidiary Guaranty) as a result of which the Company and the
Restricted Subsidiaries are no longer obligated with respect to such
liabilities; and


 


(iii) the Company delivers an Officers’ Certificate to
the Trustee certifying that such Asset Sale complies with the foregoing clauses
(i) and (ii).


 


For purposes of clause (ii) above, any securities,
notes or other obligations received by the Company or such Restricted
Subsidiary from the purchaser that are converted by the Company or such
Restricted Subsidiary into cash within 180 days following the closing of such
Asset Sale shall be deemed to be cash (to the extent of the cash received).


 


(b)  The Net
Available Cash (or any portion thereof) from Asset Sales may be applied by the
Company or a Restricted Subsidiary, to the extent the Company or such
Restricted Subsidiary elects (or is required by the terms of any Debt):


 


(i) to Repay the New Credit Facility or any other
Senior Debt of the Company or any Subsidiary Guarantor (excluding, in any such
case, any Debt owed to the Company or an Affiliate of the Company);


 


(ii) to reinvest in Additional Assets (including by
means of an Investment in Additional Assets by a Restricted Subsidiary with Net
Available Cash received by the Company or another Restricted Subsidiary); or


 


(iii)  to make
capital expenditures to improve or maintain existing assets.


 


(c)  Any Net
Available Cash from an Asset Sale not applied in accordance with the preceding
paragraph within 365 days from the date of the receipt of such Net
Available Cash shall constitute “Excess Proceeds,”


 


55





















 


provided that if during such
365-day period the Company or a Restricted Subsidiary enters into a definitive
agreement committing it to apply such Net Available Cash in accordance with the
requirements of clause (b)(ii) or (b)(iii), such 365-day period will be
extended with respect to the amount of Net Available Cash so committed for a
period not to exceed 180 days until required to be paid in accordance with such
agreement (or, if earlier, until termination of such agreement).  Pending the final application of any Net
Available Cash, the Company or any Restricted Subsidiary may temporarily reduce
borrowings under a Credit Facility or otherwise invest such Net Available Cash
in any manner that is not prohibited by this Indenture.


 


(d)  When the
aggregate amount of Excess Proceeds exceeds $15.0 million, the Company shall be
required to make an offer to repurchase (the “Prepayment
Offer”) the Notes, which offer shall be in the amount of the
Allocable Excess Proceeds (rounded to the nearest $1,000), on a pro rata basis according to principal amount, at a purchase
price equal to 100% of the principal amount thereof, plus accrued and unpaid
interest, including Special Interest, if any, to but not including the
repurchase date (subject to the right of Holders of record on the relevant
Regular Record Date to receive interest due on the relevant Interest Payment
Date), in accordance with the procedures (including prorating in the event of
oversubscription) set forth in this Indenture. 
To the extent that any portion of the amount of Net Available Cash
remains after compliance with the preceding sentence and provided that
all Holders have been given the opportunity to tender their Notes for
repurchase in accordance with this Indenture, the Company or such Restricted
Subsidiary may use such remaining amount for any purpose permitted by this
Indenture, and the amount of Excess Proceeds will be reset to zero.


 


(e) The term “Allocable Excess Proceeds”
shall mean the product of:


 


(i) the
Excess Proceeds and


 


(ii) a fraction,


 


(A) the numerator of which is the aggregate principal
amount of the Notes outstanding on the date of the Prepayment Offer, and


 


(B) the denominator of which is the sum of the
aggregate principal amount of the Notes outstanding on the date of the
Prepayment Offer and the aggregate principal amount of other Debt of the
Company outstanding on the date of the Prepayment Offer that is pari passu in right of payment with the Notes and subject to
terms and conditions in respect of Asset Sales similar in all material respects
to this Section 4.13 and requiring the Company to make an offer to repurchase
such Debt at substantially the same time as the Prepayment Offer.


 


(f)  Within five
Business Days after the Company is obligated to make a Prepayment Offer as
described in this Section 4.13, the Company shall send a written notice to the
Holders, pursuant to the procedures set forth in Section 3.09, accompanied by
such information regarding the Company and its Subsidiaries as the Company in
good faith believes will enable such holders to make an informed decision with
respect to such Prepayment Offer.


 


(g)  The Company shall comply, to the extent
applicable, with the requirements of Section 14(e) of the Exchange Act and
any other securities laws or regulations in connection with the repurchase of
Notes pursuant to this Section 4.13.  To
the extent that the provisions of any securities laws or regulations conflict
with provisions of Section 3.09 or this Section 4.13, the Company shall comply
with the applicable securities laws and regulations and will not be deemed to
have breached its obligations under Section 3.09 or this Section 4.13 by virtue
of such compliance.


 


Section 4.14.        Limitation on Restrictions on
Distributions from Restricted Subsidiaries.


 


(a)  The Company
shall not, and shall not permit any Restricted Subsidiary to, directly or
indirectly, create or otherwise cause or suffer to exist any consensual
restriction on the right of any Restricted Subsidiary to:


 


56





















 


(i) pay dividends, in cash or otherwise, or make any
other distributions on or in respect of its Capital Stock, or pay any Debt or
other obligation owed, to the Company or any other Restricted Subsidiary,


 


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


 


(iii) transfer any of its Property to the Company or
any other Restricted Subsidiary.


 


(b)  The foregoing limitations will not apply:


 


(i) with respect to clauses (a)(i), (ii) and (iii), to
restrictions:


 


(A) in
effect on the Issue Date (including, without limitation, restrictions pursuant
to the Notes, this Indenture and the New Credit Facility),


 


(B)
relating to Debt of a Restricted Subsidiary and existing at the time it became
a Restricted Subsidiary if such restriction was not created in connection with
or in anticipation of the transaction or series of transactions pursuant to
which such Restricted Subsidiary became a Restricted Subsidiary or was acquired
by the Company,


 


(C) relating
to Debt of a Foreign Restricted Subsidiary; provided, however,
that the aggregate principal amount of such Debt shall not exceed $25.0
million, or


 


(D)
that result from the Refinancing of Debt Incurred pursuant to an agreement referred
to in clause (b)(i)(A), (B) or (C) above or in clause (b)(ii)(A) or
(B) below, provided such restrictions are not less
favorable, taken as a whole, to the Holders than those under the agreement
evidencing the Debt so Refinanced, or


 


(E)
existing under or by reason of applicable law, and


 


(ii) with
respect to clause (a)(iii) only, to restrictions:


 


(A)
relating to Debt that is permitted to be Incurred and secured without also
securing the Notes or the applicable Subsidiary Guaranty pursuant to Section 4.10
and Section 4.12 that limit the right of the debtor to dispose of the Property
securing such Debt,


 


(B) encumbering
Property at the time such Property was acquired by the Company or any
Restricted Subsidiary, so long as such restrictions relate solely to the
Property so acquired and were not created in connection with or in anticipation
of such acquisition,


 


(C) resulting
from customary provisions restricting subletting or assignment of leases or
customary provisions in other agreements that restrict assignment of such
agreements or rights thereunder, or


 


(D)
customary restrictions contained in asset sale agreements limiting the transfer
of such Property pending the closing of such sale.


 


Section 4.15.        Limitation on Transactions with
Affiliates.


 


(a)  The Company
shall not, and shall not permit any Restricted Subsidiary to, directly or
indirectly, conduct any business or enter into or suffer to exist any
transaction or series of transactions (including the purchase, sale, transfer,
assignment, lease, conveyance or exchange of any Property or the rendering of
any service) with, or for the benefit of, any Affiliate of the Company (an “Affiliate Transaction”), unless:


 


(i) the
terms of such Affiliate Transaction are:


 


57





















 


(A) set
forth in writing; and


 


(B) no
less favorable to the Company or such Restricted Subsidiary, as the case may
be, than those that could be obtained in a comparable arm’s-length transaction
with a Person that is not an Affiliate of the Company;


 


(ii) if such Affiliate Transaction involves
aggregate payments or value in excess of $5.0 million, the Board of
Directors (including at least a majority of the disinterested members of the
Board of Directors) approves such Affiliate Transaction and, in its good faith
judgment, believes that such Affiliate Transaction complies with clauses
(a)(i)(B) of this Section 4.15 as evidenced by a Board Resolution promptly
delivered to the Trustee; and


 


(iii) if such Affiliate Transaction involves
aggregate payments or value in excess of $20.0 million, the Company obtains a
written opinion from an Independent Financial Advisor to the effect that the
consideration to be paid or received in connection with such Affiliate
Transaction is fair, from a financial point of view, to the Company and the
Restricted Subsidiaries.


 


(b) 
Notwithstanding the foregoing limitation, the Company or any Restricted
Subsidiary may enter into or suffer to exist the following:


 


(i) any transaction or series of transactions between
the Company and one or more Restricted Subsidiaries or between two or more
Restricted Subsidiaries in the ordinary course of business, provided that, if one of the parties to such transaction or
series of transactions is a Restricted Subsidiary that is not a Subsidiary
Guarantor, then no more than 10% of the total voting power of the Voting Stock
(on a fully diluted basis) of such Restricted Subsidiary is owned by an
Affiliate of the Company (other than a Restricted Subsidiary);


 


(ii) any Restricted Payment permitted to be made
pursuant to Section 4.11 or any Permitted Investment;


 


(iii) the payment of compensation (including
amounts paid pursuant to employee benefit plans) for the personal services of
officers, directors and employees of the Company or any of the Restricted
Subsidiaries, so long as the Board of Directors in good faith shall have
approved the terms thereof and deemed the services theretofore or thereafter to
be performed for such compensation to be fair consideration therefor;


 


(iv) loans and advances to employees made in the
ordinary course of business and consistent with the past practices of the
Company or such Restricted Subsidiary, as the case may be, provided that
such loans and advances do not exceed $2.0 million in the aggregate at any
one time outstanding;


 


(v) agreements in effect on the Issue Date and
described in the Offering Memorandum and any modifications, extensions or
renewals thereto that are no less favorable to the Company or any Restricted
Subsidiary than such agreements as in effect on the Issue Date; and


 


(vi) the Spin-Off Agreements and any modifications,
extensions or renewals thereto that are no less favorable to the Company or any
Restricted Subsidiary than such agreements as in effect on the date of
completion of the Spin-Off.


 


Section 4.16.        Limitation on Sale and Leaseback
Transactions.


 


The Company shall not, and shall not permit any
Restricted Subsidiary to, enter into any Sale and Leaseback Transaction with
respect to any Property unless:


 


(a) the Company or such Restricted Subsidiary
would be entitled to:


 


58





















 


(i) solely
in the case where the lease that is entered into in connection with the Sale
and Leaseback Transaction is a Capital Lease Obligation, Incur Debt in an amount
equal to the Attributable Debt with respect to such Sale and Leaseback
Transaction pursuant to Section 4.10, and


 


(ii) in
all cases, create a Lien on such Property securing such Attributable Debt
without also securing the Notes or the applicable Subsidiary Guaranty pursuant
to Section 4.12, and


 


(b) such Sale and Leaseback Transaction is
effected in compliance with Section 4.13.


 


Section 4.17.        Designation of Restricted and
Unrestricted Subsidiaries.


 


The Board of Directors may designate any Subsidiary of
the Company (including any newly acquired or newly formed Subsidiary) to be an
Unrestricted Subsidiary if such designation is permitted under Section 4.11
(the amount of such Restricted Payment being calculated in the manner set forth
in the definition of the term “Investments”) and the Subsidiary to be so
designated:


 


(a) does not own any Capital Stock or Debt of, or
own or hold any Lien on any Property of, the Company or any other Restricted
Subsidiary;


 


(b) has
no Debt other than Non-Recourse Debt;


 


(c) is
not party to any agreement, contract, arrangement or understanding with the
Company or any Restricted Subsidiary unless the terms of any such agreement,
contract, arrangement or understanding are no less favorable to the Company or
such Restricted Subsidiary than those that might be obtained at the time from
Persons who are not Affiliates of the Company;


 


(d) is
a Person with respect to which neither the Company nor any Restricted
Subsidiary has any direct or indirect obligation (1) to subscribe for additional
Capital Stock or (2) to maintain or preserve such Person’s financial condition
or to cause such Person to achieve any specified levels of operating results;
and


 


(e)
has not Guaranteed or otherwise directly or indirectly provided credit support
for any Debt of the Company or any Restricted Subsidiary.


 


Unless so designated as an Unrestricted Subsidiary,
any Person that becomes a Subsidiary of the Company shall be classified as a
Restricted Subsidiary; provided, however, that such Subsidiary shall not be designated a
Restricted Subsidiary and shall be automatically classified as an Unrestricted
Subsidiary if either of the requirements set forth in clauses (x) and (y)
of the second immediately following paragraph will not be satisfied after giving
pro forma effect to such classification
or if such Person is a Subsidiary of an Unrestricted Subsidiary.


 


Except as provided in the first sentence of the
preceding paragraph, no Restricted Subsidiary may be redesignated as an
Unrestricted Subsidiary, and neither the Company nor any Restricted Subsidiary
shall at any time be directly or indirectly liable for any Debt that provides
that the holder thereof may (with the passage of time or notice or both)
declare a default thereon or cause the payment thereof to be accelerated or
payable prior to its Stated Maturity upon the occurrence of a default with
respect to any Debt, Lien or other obligation of any Unrestricted Subsidiary
(including any right to take enforcement action against such Unrestricted
Subsidiary).  Upon designation of a
Restricted Subsidiary as an Unrestricted Subsidiary in compliance with this
Section 4.17, such Restricted Subsidiary shall, by execution and delivery of a
supplemental indenture in form satisfactory to the Trustee, be released from any
Subsidiary Guaranty previously made by such Restricted Subsidiary.


 


The Board of Directors may designate any Unrestricted
Subsidiary to be a Restricted Subsidiary if, immediately after giving pro forma effect to such designation,


 


(x) the Company could Incur at least $1.00 of
additional Debt pursuant to clause (1) of the first paragraph of Section 4.10,
and


 


59





















 


(y) no Default or Event of Default shall have
occurred and be continuing or would result therefrom.


 


Any such designation or redesignation by the Board of
Directors shall be evidenced to the Trustee by filing with the Trustee a Board
Resolution giving effect to such designation or redesignation and an Officers’
Certificate that:


 


(a) certifies that such designation or
redesignation complies with the foregoing provisions, and


 


(b) gives the effective date of such designation
or redesignation,


 


such filing with the
Trustee to occur within 45 days after the end of the fiscal quarter of the
Company in which such designation or redesignation is made (or, in the case of
a designation or redesignation made during the last fiscal quarter of the
Company’s fiscal year, within 90 days after the end of such fiscal year).


 


Section 4.18.        Repurchase at the Option of Holders
Upon a Change of Control.


 


(a)  Upon the
occurrence of a Change of Control, the Company shall, within 30 days following
any Change of Control, make an offer (the “Change of Control Offer”)
pursuant to the procedures set forth in Section 3.09.  Each Holder shall have the right to accept
such offer and require the Company to repurchase all or any part (equal to
$1,000 or an integral multiple of $1,000) of such Holder’s Notes pursuant to
the Change of Control Offer at a purchase price (the “Change
of Control Purchase Price”) equal to 101% of the aggregate
principal amount thereof, plus accrued and unpaid interest, including Special
Interest, if any, to but not including the Purchase Date (subject to the right
of Holders of record on the relevant Regular Record Date to receive interest
due on the relevant Interest Payment Date).


 


(b)  The Company
shall not be required to make a Change of Control Offer following a Change of
Control (1) if a third party makes the Change of Control Offer in the manner,
at the times and otherwise in compliance with the requirements set forth in
this Indenture applicable to a Change of Control Offer made by the Company and
purchases all Notes validly tendered and not withdrawn under such Change of
Control Offer or (2) with respect to any Notes for which the Company has
exercised its redemption rights, as described under Section 3.07.


 


(c)  The Company
shall comply, to the extent applicable, with the requirements of
Section 14(e) of the Exchange Act and any other securities laws or
regulations in connection with the repurchase of Notes pursuant to a Change of
Control Offer.  To the extent that the
provisions of any securities laws or regulations conflict with the provisions
of Section 3.09 or this Section 4.18, the Company shall comply with the
applicable securities laws and regulations and will not be deemed to have
breached its obligations under Section 3.09 or this Section 4.18 by virtue of
such compliance.


 


Section 4.19.        Future Subsidiary Guarantors.


 


The Company shall cause:


 


(a) each Person that becomes a Domestic Restricted
Subsidiary following the consummation of the Spin-Off to execute and deliver to
the Trustee a Subsidiary Guaranty at the time such Person becomes a Domestic
Restricted Subsidiary and


 


(b) any Foreign Restricted Subsidiary that Guarantees
any Debt of the Company or a Domestic Restricted Subsidiary following the Issue
Date to execute and deliver to the Trustee a Subsidiary Guaranty at the time of
such Guarantee; provided, however, that any such
Subsidiary Guaranty will provide by its terms that it will be automatically and
unconditionally released upon the release or discharge of such Guarantee of
such other Debt of the Company or any Domestic Restricted Subsidiary for any
reason whatsoever (except a discharge by or as a result of payment under such
Guarantee), or if such other Guaranteed Debt of the Company or any Domestic
Restricted Subsidiary is repaid in full by the Company or such Domestic
Restricted Subsidiary or refinanced with other Debt that is not Guaranteed by
such Foreign Restricted Subsidiary.


 


60





















 


ARTICLE 5.



SUCCESSORS


 


Section 5.01.        Merger, Consolidation and Sale
of Property.


 


(a)  The Company
shall not merge, consolidate or amalgamate with or into any other Person (other
than a merger of a Wholly Owned Restricted Subsidiary into the Company) or
sell, transfer, assign, lease, convey or otherwise dispose of all or
substantially all its Property in any one transaction or series of transactions
(other than to a domestic Subsidiary Guarantor) unless:


 


(i) the Company shall be the Surviving Person in
such merger, consolidation or amalgamation, or the Surviving Person (if other
than the Company) formed by such merger, consolidation or amalgamation or to
which such sale, transfer, assignment, lease, conveyance or disposition is made
shall be a corporation organized and existing under the laws of the United
States of America, any State thereof or the District of Columbia;


 


(ii) the Surviving Person (if other than the Company)
expressly assumes, by supplemental indenture in form satisfactory to the
Trustee, executed and delivered to the Trustee by such Surviving Person, the
due and punctual payment of the principal of, and premium, if any, and interest
on, all the Notes, according to their tenor, and the due and punctual
performance and observance of all the covenants and conditions of this
Indenture to be performed by the Company;


 


(iii) in the case of a sale, transfer,
assignment, lease, conveyance or other disposition of all or substantially all
the Property of the Company, such Property shall have been transferred as an
entirety or virtually as an entirety to one Person;


 


(iv) immediately before and after giving effect
to such transaction or series of transactions on a pro forma basis
(and treating, for purposes of this clause (iv) and clause (v) below, any
Debt that becomes, or is anticipated to become, an obligation of the Surviving
Person or any Restricted Subsidiary as a result of such transaction or series of
transactions as having been Incurred by the Surviving Person or such Restricted
Subsidiary at the time of such transaction or series of transactions), no
Default or Event of Default shall have occurred and be continuing;


 


(v) immediately
after giving effect to such transaction or series of transactions on a pro forma basis, the Company or the Surviving Person, as the
case may be, would be able to Incur at least $1.00 of additional Debt under
clause (1) of the first paragraph of Section 4.10; and


 


(vi) the Company shall deliver, or cause to be
delivered, to the Trustee, in form and substance reasonably satisfactory to the
Trustee, an Officers’ Certificate and an Opinion of Counsel, each stating that
such transaction or series of transactions and the supplemental indenture, if
any, in respect thereto comply with this Section 5.01 and that all conditions
precedent herein provided for relating to such transaction or series of
transactions have been satisfied.


 


(b) The Company shall not permit any Subsidiary Guarantor
to merge, consolidate or amalgamate with or into any other Person (other than a
merger of a Wholly Owned Restricted Subsidiary into the Company or such
Subsidiary Guarantor) or sell, transfer, assign, lease, convey or otherwise
dispose of all or substantially all its Property in any one transaction or
series of transactions (other than to the Company or a domestic Subsidiary
Guarantor) unless:


 


(i) the Surviving Person (if not such Subsidiary
Guarantor) formed by such merger, consolidation or amalgamation or to which
such sale, transfer, assignment, lease, conveyance or disposition is made shall
be a corporation, company (including a limited liability company) or
partnership organized and existing under the laws of the United States of
America, any State thereof or the District of Columbia;


 


61





















 


(ii) the Surviving Person (if other than such
Subsidiary Guarantor) expressly assumes, by supplemental indenture in form
satisfactory to the Trustee, executed and delivered to the Trustee by such
Surviving Person, the due and punctual performance and observance of all the
obligations of such Subsidiary Guarantor under its Subsidiary Guaranty;


 


(iii) in the case of a sale, transfer,
assignment, lease, conveyance or other disposition of all or substantially all
the Property of such Subsidiary Guarantor, such Property shall have been
transferred as an entirety or virtually as an entirety to one Person;


 


(iv) immediately before and after giving effect
to such transaction or series of transactions on a pro forma
basis (and treating, for purposes of this clause (iv) and clause (v)
below, any Debt that becomes, or is anticipated to become, an obligation of the
Surviving Person, the Company or any Restricted Subsidiary as a result of such
transaction or series of transactions as having been Incurred by the Surviving
Person, the Company or such Restricted Subsidiary at the time of such
transaction or series of transactions), no Default or Event of Default shall
have occurred and be continuing;


 


(v) immediately
after giving effect to such transaction or series of transactions on a pro forma basis, the Company would be able to Incur at least
$1.00 of additional Debt under clause (1) of the first paragraph of
Section 4.10; and


 


(vi) the Company shall deliver, or cause to be
delivered, to the Trustee, in form and substance reasonably satisfactory to the
Trustee, an Officers’ Certificate and an Opinion of Counsel, each stating that
such transaction or series of transactions and such Subsidiary Guaranty, if
any, in respect thereto comply with this Section 5.01 and that all conditions
precedent herein provided for relating to such transaction or series of
transactions have been satisfied.


 


The foregoing provisions
(other than clause (iv)) shall not apply to any transaction or series of
transactions which constitute an Asset Sale if the Company has complied with
Section 4.13.


 


Section 5.02.        Successor Corporation
Substituted.


 


The Surviving Person shall succeed to, and be
substituted for, and may exercise every right and power of the Company under
this Indenture (or of the Subsidiary Guarantor under the Subsidiary Guaranty,
as the case may be), but the predecessor Company in the case of:


 


(i) a sale, transfer, assignment, conveyance or
other disposition (unless such sale, transfer, assignment, conveyance or other
disposition is of all the assets of the Company as an entirety or virtually as
an entirety), or


 


(ii) a
lease,


 


shall not be released from any of the obligations or
covenants under this Indenture, including with respect to the payment of the
Notes.


 


ARTICLE 6.



DEFAULTS AND REMEDIES


 


Section 6.01.        Events of Default.


 


                Each of the following constitutes an “Event
of Default” in respect of the Notes:


 


(i) failure to make the payment of any interest
or Special Interest, if any, on the Notes when the same becomes due and
payable, and such failure continues for a period of 30 days;


 


62





















 


(ii) failure to make the payment of any principal
of, or premium, if any, on, any of the Notes when the same becomes due and
payable at its Stated Maturity, upon acceleration, redemption, optional
redemption, required repurchase or otherwise;


 


(iii) failure by the Company or any Subsidiary
Guarantor to comply with Section 5.01;


 


(iv) failure by the Company to comply with its
obligations under Section 4.18 (other than a failure to purchase Notes) or
under Section 4.10, Section 4.11, Section 4.12, Section 4.13 (other than a
failure to purchase the Notes), Section 4.14, Section 4.15 or Section 4.19, and
such failure continues for 30 days after written notice is given to the Company
as provided below;


 


(v)  failure by
the Company or any Subsidiary Guarantor to comply with any other covenant or
agreement in the Notes or in this Indenture (other than a failure that is the
subject of the foregoing clause (i), (ii), (iii) or (iv)), and such
failure continues for 60 days after written notice is given to the Company as
provided below;


 


(vi) a default under any Debt by the Company or
any Restricted Subsidiary that results in acceleration of the maturity of such
Debt, or failure to pay any such Debt at maturity, in an aggregate amount
greater than $10.0 million or its foreign currency equivalent at the time;


 


(vii) any judgment or judgments for the payment
of money in an aggregate amount in excess of $7.0 million (or its foreign
currency equivalent at the time) that shall be rendered against the Company or
any Restricted Subsidiary and that shall not be waived, satisfied or discharged
for any period of 60 consecutive days during which a stay of enforcement shall
not be in effect;


 


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


 


(A)  commences
a voluntary case or gives notice of intention to make a proposal under any
Bankruptcy Law;


 


(B)   consents
to the entry of an order for relief against it in an involuntary case or consents
to its dissolution or winding up;


 


(C)   consents
to the appointment of a receiver, interim receiver, receiver and manager,
liquidator, trustee or custodian of it or for all or substantially all of its
property;


 


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


 


(E)   admits
in writing its inability to pay its debts as they become due or otherwise
admits its insolvency;


 


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


 


(A)  is
for relief against the Company, any of its Significant Subsidiaries or any
group of Subsidiaries that, when taken together, would constitute a Significant
Subsidiary in an involuntary case; or


 


(B)   appoints
a receiver, interim receiver, receiver and manager, liquidator, trustee or
custodian of the Company or any of its Significant Subsidiaries or any group of
Subsidiaries that, when taken together, would constitute a Significant
Subsidiary or for all or substantially all of the property of the


 


63





















 


Company, any of its Significant Subsidiaries or any
group of Subsidiaries that, when taken together, would constitute a Significant
Subsidiary; or


 


(C)   orders
the liquidation of the Company, any of its Significant Subsidiaries or any
group of Subsidiaries that, when taken together, would constitute a Significant
Subsidiary;


 


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


 


(x) any Subsidiary Guaranty of a Subsidiary
Guarantor that is a Significant Subsidiary ceases, or the Subsidiary Guaranties
of any group of Subsidiary Guarantors that, when taken together, would
constitute a Significant Subsidiary, cease, to be in full force and effect
(other than in accordance with the terms of such Subsidiary Guaranty) or any
Subsidiary Guarantor that is a Significant Subsidiary denies or disaffirms its
obligations under its Subsidiary Guaranty, or any group of Subsidiary
Guarantors that, when taken together, would constitute a Significant
Subsidiary, deny or disaffirm their obligations under their Subsidiary
Guaranties.


 


Section 6.02.        Acceleration.


 


If an Event of
Default (other than those of the type described in Section 6.01(viii) or (ix)
occurs and is continuing, the Trustee may, and the Trustee upon the request of
Holders of not less than 25% in aggregate principal amount of the Notes then
outstanding shall, or the Holders of not less than 25% in aggregate principal
amount of the Notes then outstanding may, declare the principal of all the
Notes, together with all accrued and unpaid interest and premium, if any, to be
due and payable by notice in writing to the Company and the Trustee specifying
the Default demand that it be remedied and state that such notice is a notice
of Default (the “Notice of Default”), and the
same shall become immediately due and payable.


 


In the event of a declaration of acceleration of the
Notes because an Event of Default described in clause (vi) of Section 6.01 has
occurred and is continuing, the declaration of acceleration of the Notes shall
be automatically annulled if the default or payment default triggering such
Event of Default shall be remedied or cured by the Company or a Restricted
Subsidiary or waived by the holders of the relevant Debt 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 non-payment of principal of, premium, if any, or interest, including
Special Interest, if any, on, the Notes that became due solely because of the
acceleration of the Notes have been cured or waived.


 


In case an Event of Default specified in clause (viii)
or (ix) of Section 6.01 shall occur, all outstanding Notes shall become due and
payable immediately without any declaration or other act on the part of the
Trustee or the Holders.  Holders may not
enforce this Indenture or the Notes except as provided in this Indenture.


 


Section 6.03.        Other Remedies.


 


If an Event of Default occurs and is continuing, the
Trustee may pursue any available remedy to collect the payment of principal,
premium, if any, and interest on the Notes or to enforce the performance of any
provision of the Notes or this Indenture.


 


The Trustee may maintain a proceeding even if it does
not possess any of the Notes or does not produce any of them in the
proceeding.  A delay or omission by the Trustee or any Holder in
exercising any right or remedy accruing upon an Event of Default shall not
impair the right or remedy or constitute a waiver of or acquiescence in the
Event of Default.  All remedies shall be
cumulative to the extent permitted by law.


 


Section 6.04.        Waiver of Defaults.


 


The
Holders of at least a majority in aggregate principal amount of the Notes then
outstanding by notice to the Trustee may on behalf of the Holders of all of the
Notes, waive any existing Default or Event of


 


64





















 


Default, and its consequences,
except a continuing Default or Event of Default (i) in the payment of the
principal of, premium, if any, or interest, on the Notes and (ii) in respect of
a covenant or provision which under this Indenture cannot be modified or
amended without the consent of the Holder of each Note affected by such
modification or amendment.


 


Upon any waiver of a Default or Event of Default, such
Default shall cease to exist, and any Event of Default arising therefrom shall
be deemed cured for every purpose of this Indenture but no such waiver shall
extend to any subsequent or other Default or Event of Default or impair any
right consequent thereon.


 


Section 6.05.        Control by Majority.


 


Subject to Section 7.01 (including the Trustee’s
receipt of the security or indemnification described therein) and Section 7.07
hereof, in case an Event of Default shall occur and be continuing, the Holders
of at least a majority in aggregate principal amount of the Notes then
outstanding shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee with respect to the Notes.


 


Section 6.06.        Limitation on Suits.


 


No Holder shall have any right to institute any
proceeding with respect to this Indenture, or for the appointment of a receiver
or trustee, or for any remedy thereunder, unless:


 


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


 


(b)   Holders
of at least 25% in aggregate principal amount of the Notes then outstanding
have made written request and offered reasonable indemnity to the Trustee to
institute such proceeding as trustee; and


 


(c)   the
Trustee shall not have received from the Holders of at least a majority in aggregate
principal amount of the Notes then outstanding a direction inconsistent with
such request and shall have failed to institute such proceeding within 60 days.


 


The preceding limitations shall not apply to a suit
instituted by a Holder for enforcement of payment of the principal of, and
premium, if any, or interest, including Special Interest, if any, on, such Note
on or after the respective due dates expressed in such Note.


 


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


 


Section 6.07.        Rights of Holders to Receive
Payment.


 


Notwithstanding any other provision of this Indenture
(including Section 6.06), the right of any Holder to receive payment of
principal, premium, if any, and interest on the Notes held by such Holder, on
or after the respective due dates expressed in the Notes (including in
connection with an offer to purchase), or to bring suit for the enforcement of
any such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder.


 


Section 6.08.        Collection Suit by Trustee.


 


If an Event of Default specified in Section 6.01 (i)
or (ii) occurs and is continuing, the Trustee is authorized to recover judgment
in its own name and as trustee of an express trust against the Company for the
whole amount of principal of, premium, if any, and interest then due and owing
(together with interest on overdue principal and, to the extent lawful, interest)
and such further amount as shall be sufficient to cover the costs and expenses
of collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel.


 


65





















 


Section 6.09.        Trustee May File Proofs of Claim.


 


The Trustee shall be authorized to file such proofs of
claim and other papers or documents as may be necessary or advisable in order
to have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel) and the Holders allowed in any judicial proceedings relative to
the Company (or any other obligor upon the Notes), its creditors or its
property and shall be entitled and empowered to collect, receive and distribute
any money or other property payable or deliverable on any such claims and any
custodian in any such judicial proceeding is hereby authorized by each Holder
to make such payments to the Trustee, and in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay to the
Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 7.07  hereof. 
To the extent that the payment of any such compensation, expenses,
disbursements and advances of the Trustee and its agents and counsel, and any
other amounts due the Trustee under Section 7.07 hereof out of the estate in
any such proceeding, shall be denied for any reason, payment of the same shall
be secured by a Lien on, and shall be paid out of, any and all distributions,
moneys, securities and any other properties that the Holders may be entitled to
receive in such proceeding whether in liquidation or under any plan of
reorganization or arrangement or otherwise. 
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder, 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 6, it shall pay out the money in the following order:


 


First:  to the Trustee, its agents and attorneys for
amounts due under Section 7.07 hereof, including payment of all compensation,
expenses and liabilities incurred, and all advances made, by the Trustee and
the costs and expenses of collection;


 


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


 


Third:  to the Company or to such party as a court of
competent jurisdiction shall direct.


 


The Trustee may fix a record date and payment date for
any payment to Holders pursuant to this Section 6.10.


 


Section 6.11.        Undertaking for Costs.


 


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


 


66





















 


ARTICLE 7.



TRUSTEE


 


Section 7.01.        Duties of Trustee.


 


(a)   If
an Event of Default has occurred and is continuing, the Trustee shall exercise
such of the rights and powers vested in it by this Indenture, and use the same
degree of care and skill in its exercise, as a prudent Person would exercise or
use under the circumstances in the conduct of such Person’s own affairs.


 


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


 


(1)   the
duties of the Trustee shall be determined solely by the express provisions of
this Indenture and the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others, and no implied
covenants or obligations shall be read into this Indenture against the Trustee;
and


 


(2)   in
the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Trustee and conforming
to the requirements of this Indenture.  However, the Trustee shall examine
the certificates and opinions to determine whether or not they conform to the
requirements of this Indenture (but need not confirm or investigate the
accuracy of mathematical calculations or other facts stated therein).


 


(c)   The
Trustee may not be relieved from liabilities for its own negligent action, its
own negligent failure to act, or its own willful misconduct, except that:


 


(1)   this
paragraph does not limit the effect of paragraph (b) of this Section;


 


(2)   the
Trustee shall not be liable for any error of judgment made in good faith by a
Responsible Officer, unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts; and


 


(3)   the
Trustee shall not be liable with respect to any action it takes or omits to
take in good faith in accordance with a direction received by it pursuant to
Section 6.05 hereof.


 


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


 


(e)   No
provision of this Indenture shall require the Trustee to expend or risk its own
funds or incur any liability.  The
Trustee shall be under no obligation to exercise any of its rights or powers
under this Indenture at the request or direction of any Holders, unless such
Holders shall have offered to the Trustee security and indemnity satisfactory
to it against any loss, liability or expense.


 


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


 


67





















 


Section 7.02.        Rights of Trustee.


 


Subject to TIA §315:


 


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


 


(b)   Before
the Trustee acts or refrains from acting, it may require an Officers’
Certificate or an Opinion of Counsel or both. 
The Trustee shall not be liable for any action it takes or omits to take
in good faith in reliance on such Officers’ Certificate or Opinion of
Counsel.  The Trustee may consult with
counsel and the written advice of such counsel or any Opinion of Counsel shall
be full and complete authorization and protection from liability in respect of
any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon.


 


(c)   The
Trustee shall not be liable for any action it takes or omits to take in good
faith that it believes to be authorized or within the rights or powers
conferred upon it by this Indenture.


 


(d)   Unless
otherwise specifically provided in this Indenture, any demand, request,
direction or notice from the Company shall be sufficient if signed by an
Officer of the Company.


 


(e)   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 or Event of
Default is received by a Responsible Officer of the Trustee at the Corporate
Trust Office of the Trustee from the Company or the Holders of 25% in aggregate
principal amount of the outstanding Notes, and such notice references the
specific Default or Event of Default, the Notes and this Indenture.


 


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


 


(g)   The
Trustee shall have no duty to inquire as to the performance of the Company’s
covenants herein.


 


(h)   The
Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys and the Trustee
shall not be responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder.


 


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 any Affiliate of the Company with the same rights it would have if
it were not Trustee.  However, in the
event that the Trustee acquires any conflicting interest it must eliminate such
conflict within 90 days, apply to the Commission for permission to continue as
Trustee or resign.  Any Agent may do the
same with like rights and duties.  The
Trustee shall also be subject to Sections 7.10 and 7.11 hereof.


 


Section 7.04.        Trustee’s Disclaimer.


 


The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture or the Notes,
it shall not be accountable for the Company’s use of the proceeds from the
Notes or any money paid to the Company or upon the Company’s direction under
any provision of this Indenture, it shall not be responsible for the use or
application of any money received by any Paying Agent other than the Trustee,
and it shall not be responsible for any statement or recital herein or any
statement in the Notes or any other document in connection with the sale of the
Notes or pursuant to this Indenture other than its certificate of
authentication.


 


68





















 


Section 7.05.        Notice of Defaults.


 


If a Default or Event of Default occurs and is
continuing and if it is known to the Trustee, the Trustee shall mail to Holders
a notice of the Default or Event of Default within 90 days after it
occurs.  Except in the case of a Default
or Event of Default in payment of principal of, premium, if any, or interest on
any Note, the Trustee may withhold the notice if and so long as a committee of
its Responsible Officers in good faith determines that withholding the notice
is in the interests of the Holders.


 


Section 7.06.        Reports by Trustee to Holders.


 


Within 60 days after each May 15 beginning with the
May 15 following the date of this Indenture, and for so long as Notes remain
outstanding, the Trustee shall mail to the Holders  a brief report dated as of such reporting date
that complies with TIA §313(a) (but if no event described in TIA §313(a) has
occurred within the twelve months preceding the reporting date, no report need
be transmitted).  The Trustee also shall
comply with TIA §313(b)(2).  The Trustee
shall also transmit by mail all reports as required by TIA §313(c).


 


A copy of each report at the time of its mailing to
the Holders shall be mailed to the Company and filed with the Commission and
each stock exchange on which the Notes are listed in accordance with TIA §313(d). 
The Company shall promptly notify the Trustee when the Notes are listed on any
stock exchange and any delisting thereof.


 


Section 7.07.        Compensation and Indemnity.


 


The Company shall pay to the Trustee from time to time
reasonable compensation for its acceptance of this Indenture and services
hereunder.  The Trustee’s compensation shall not be limited by any law on
compensation of a trustee of an express trust. 
The Company shall reimburse the Trustee promptly upon request for all
reasonable disbursements, advances and expenses incurred or made by it in
addition to the compensation for its services. 
Such expenses shall include the reasonable compensation, disbursements
and expenses of the Trustee’s agents and counsel.


 


The Company shall indemnify the Trustee (in its
capacity as Trustee) or any predecessor Trustee (in its capacity as Trustee)
against any and all losses, claims, damages, penalties, fines, liabilities or
expenses, including incidental and out-of-pocket expenses and reasonable
attorneys fees (for purposes of this Article, “losses”)
incurred by it arising out of or in connection with the acceptance or
administration of its duties under this Indenture, including the costs and
expenses of enforcing this Indenture against the Company (including this
Section 7.07) and defending itself against any claim (whether asserted by the
Company or any Holder or any other Person) or liability in connection with the
exercise or performance of any of its powers or duties hereunder, except to the
extent such losses may be attributable to its negligence or bad faith.  The Trustee shall notify the Company promptly
of any claim for which it may seek indemnity.  Failure by the Trustee to
so notify the Company shall not relieve the Company of its obligations under
this Section 7.07, except to the extent the Company has been prejudiced
thereby.  The Company shall defend the
claim, and the Trustee shall cooperate in the defense.  The Trustee may have separate counsel if the
Trustee has been reasonably advised by counsel that there may be one or more
legal defenses available to it that are different from or additional to those
available to the Company and in the reasonable judgment of such counsel it is
advisable for the Trustee to engage separate counsel, and the Company shall pay
the reasonable fees and expenses of such counsel.  The Company need not
pay for any settlement made without its consent, which consent shall not be
unreasonably withheld.  The Company need
not reimburse any expense or indemnify against any loss incurred by the Trustee
through the Trustee’s own willful misconduct, gross negligence or bad faith.


 


The obligations of the Company under this Section 7.07
shall survive the satisfaction and discharge of this Indenture, the resignation
or removal of the Trustee and payment in full of the Notes through the
expiration of the applicable statute of limitations.


 


To secure the Company’s payment obligations in this
Section, the Trustee shall have a Lien prior to the Notes on all money or
property held or collected by the Trustee, except that held in trust to pay
principal,


 


69





















 


premium, if any, and
interest on particular Notes.  Such Lien
shall survive the satisfaction and discharge of this Indenture.


 


When the Trustee incurs expenses or renders services
after an Event of Default specified in Section 6.01(viii) or (ix) hereof
occurs, the expenses and the compensation for the services (including the fees
and expenses of its agents and counsel) are intended to constitute expenses of
administration under any Bankruptcy Law.


 


Section 7.08.        Replacement of Trustee.


 


A resignation or removal of the Trustee and
appointment of a successor Trustee shall become effective only upon the
successor Trustee’s acceptance of appointment as provided in this Section 7.08.


 


The Trustee may resign in writing at any time upon 30
days’ prior notice to the Company and be discharged from the trust hereby
created by so notifying the Company.  The
Holders of a majority in aggregate principal amount of the then outstanding
Notes may remove the Trustee by so notifying the Trustee and the Company in
writing.  The Company may remove the
Trustee if:


 


(a)   the
Trustee fails to comply with Section 7.10 hereof;


 


(b)   the
Trustee is adjudged bankrupt or insolvent or an order for relief is entered
with respect to the Trustee under any Bankruptcy Law;


 


(c)   a
custodian or public officer takes charge of the Trustee or its property; or


 


(d)   the
Trustee becomes incapable of acting.


 


If the Trustee resigns or is removed or if a vacancy
exists in the office of Trustee for any reason (the Trustee in such event being
referred to herein as the retiring Trustee), the Company shall promptly appoint
a successor Trustee.  Within one year
after the successor Trustee takes office, the Holders of a majority in
principal amount of the then outstanding Notes may appoint a successor Trustee
to replace the successor Trustee appointed by the Company.


 


If a successor Trustee does not take office within 30
days after the retiring Trustee resigns or is removed, the retiring Trustee,
the Company, or the Holders of at least 10% in aggregate principal amount of
the then outstanding Notes may petition any court of competent jurisdiction for
the appointment of a successor Trustee.


 


If the Trustee, after written request by any Holder
who has been a Holder for at least six months, fails to comply with Section
7.10 hereof, such Holder may petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor Trustee.


 


A successor Trustee shall deliver a written acceptance
of its appointment to the retiring Trustee and to the Company.  Thereupon,
the resignation or removal of the retiring Trustee shall become effective, and
the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture.  The
successor Trustee shall mail a notice of its succession to Holders. 
Subject to the Lien provided for in Section 7.07 hereof, the retiring Trustee
shall promptly transfer all property held by it as Trustee to the successor
Trustee; provided, however,
that all sums owing to the Trustee hereunder shall have been paid.  Notwithstanding replacement of the Trustee
pursuant to this Section 7.08, the Company’s obligations under Section 7.07
hereof shall continue for the benefit of the retiring Trustee.


 


In the case of an appointment hereunder of a separate
or successor Trustee with respect to the Notes, the Company, the Subsidiary
Guarantors, any retiring Trustee and each successor or separate Trustee with
respect to the Notes shall execute and deliver an Indenture supplemental hereto
(1) which shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of any
retiring Trustee with respect to the Notes as to which any such retiring
Trustee is not retiring shall continue to be vested in such retiring Trustee
and (2) that shall add to or change any of the provisions of this Indenture as
shall be


 


70





















 


necessary to provide for
or facilitate the administration of the trusts hereunder by more than one
Trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such Trustee co-trustees of the same trust and that
each such separate, retiring or successor Trustee shall be Trustee of a trust
or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any such other Trustee.


 


Section 7.09.        Successor Trustee by Merger, etc.


 


If the Trustee consolidates, merges or converts into,
or transfers all or substantially all of its corporate trust business to,
another corporation or banking association, the successor corporation or
banking association without any further act shall, if such successor
corporation or banking association is otherwise eligible hereunder, be the
successor Trustee.


 


Section 7.10.        Eligibility; Disqualification.


 


There shall at all times be a Trustee hereunder that
is a Person organized and doing business under the laws of the United States of
America or of any state thereof that is authorized under such laws to exercise
corporate trustee power, that is subject to supervision or examination by
federal or state authorities and that has a combined capital and surplus of at
least $50.0 million (or a wholly-owned subsidiary of a bank or trust company,
or of a bank holding company, the principal subsidiary of which is a bank or
trust company having a combined capital and surplus of at least $50.0 million)
as set forth in its most recent published annual report of condition.


 


This Indenture shall always have a Trustee who
satisfies the requirements of TIA §310(a)(1), (2) and (5).  The Trustee is subject to TIA §310(b).


 


Section 7.11.        Preferential Collection of Claims
Against Company.


 


The Trustee is subject to TIA §311(a), excluding any
creditor relationship listed in TIA §311(b). 
A Trustee who has resigned or been removed shall be subject to TIA
§311(a) to the extent indicated therein.


 


ARTICLE 8.



LEGAL DEFEASANCE AND COVENANT DEFEASANCE


 


Section 8.01.        Option to Effect Legal
Defeasance or Covenant Defeasance.


 


The Company may, at its option and at any time, elect
to have either Section 8.02 or 8.03 hereof be applied to all outstanding Notes
upon compliance with the conditions set forth in this Article 8.


 


Section 8.02.        Legal Defeasance and Discharge.


 


Upon the Company’s exercise under Section 8.01 of the
option applicable to this Section 8.02, the Company shall, subject to the
satisfaction of the conditions set forth in Section 8.04, be deemed to have
been discharged from all its obligations with respect to all outstanding Notes
on and after the date the conditions set forth in Section 8.04 are satisfied
(hereinafter, “Legal Defeasance”)
and each Subsidiary Guarantor shall be released from all its obligations under
its Subsidiary Guaranty.  For this
purpose, Legal Defeasance means that the Company shall be deemed to have paid
and discharged the entire Debt represented by the outstanding Notes, which
shall thereafter be deemed to be “outstanding” only for the purposes of Section
8.05 and the other Sections of this Indenture referred to in (a) and (b) below,
and to have satisfied all its other obligations under the Notes and this
Indenture (and the Trustee, on demand of and at the expense of the Company,
shall execute proper instruments acknowledging the same), except for the
following provisions which shall survive until otherwise terminated or
discharged hereunder:  (a) the rights
of Holders of outstanding Notes to receive solely from the trust fund described
in Section 8.04, and as more fully set forth in such Section, payments in
respect of the principal of, premium, if any, or interest on such Notes when
such payments are due, (b) the Company’s obligations with respect to such
Notes under Article 2 and Section 4.02, (c) the rights, powers, trusts,
duties and immunities of the Trustee hereunder and the Company’s obligations in
connection therewith and (d) this Article 8.  If the Company exercises under Section


 


71





















 


8.01 the option
applicable to this Section 8.02, subject to the satisfaction of the conditions
set forth in Section 8.04, payment of the Notes may not be accelerated because
of an Event of Default.  Subject to compliance
with this Article 8, the Company may exercise its option under this Section
8.02 notwithstanding its prior exercise of its option under Section 8.03.


 


Section 8.03.        Covenant Defeasance.


 


Upon the Company’s exercise under Section 8.01 of the
option applicable to this Section 8.03, the Company shall, subject to the
satisfaction of the conditions set forth in Section 8.04, be released from its
obligations under the covenants contained in Sections 4.10 through 4.19
hereof, and the operation of Section 5.01(a)(v) and (b)(v), with respect to the
outstanding Notes on and after the date the conditions set forth in Section
8.04 are satisfied (hereinafter, “Covenant
Defeasance”) and each Subsidiary Guarantor shall be
released from all its obligations under its Subsidiary Guaranty with respect to
such covenants in connection with such outstanding Notes and the Notes shall
thereafter be deemed not “outstanding” for the purposes of any direction,
waiver, consent or declaration or act of Holders (and the consequences of any
thereof) in connection with such covenants, but shall continue to be deemed “outstanding”
for all other purposes hereunder (it being understood that such Notes shall not
be deemed outstanding for accounting purposes). 
For this purpose, Covenant Defeasance means that, with respect to the
outstanding Notes, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any such covenant
to any other provision herein or in any other document and such omission to
comply shall not constitute a Default or an Event of Default under Section 6.01,
but, except as specified above, the remainder of this Indenture and such Notes
shall be unaffected thereby.  If the
Company exercises under Section 8.01 the option applicable to this Section
8.03, subject to the satisfaction of the conditions set forth in Section 8.04,
payment of the Notes may not be accelerated because of an Event of Default
specified in clause (a)(iii) (with respect to the covenants contained in
Section 5.01(a)(v) and (b)(v) hereof), (a)(iv), (a)(v) (with respect to the
covenants contained in Sections 4.16 through 4.17 hereof), (a)(vi), (a)(vii),
(a)(viii) and (a)(ix) (but in the case of (a)(viii) and (ix) of Section 6.01,
with respect to Significant Subsidiaries only) or (x).


 


Section 8.04.        Conditions to Legal or Covenant
Defeasance.


 


The following shall be the conditions to the
application of either Section 8.02 or 8.03 to the outstanding Notes.


 


The Legal Defeasance option or the Covenant Defeasance
option may be exercised only if:


 


(a)   the
Company irrevocably deposits with the Trustee, in trust (the “defeasance trust”), for the benefit
of the Holders, cash in U.S. dollars, U.S. Government, or a combination of cash
in U.S. dollars and U.S. Government Obligations for the payment of principal,
premium, if any, and interest, including Special Interest, if any, on, the
outstanding Notes to the Stated Maturity or on the next redemption date, as the
case may be, and the Company shall specify whether the Notes are being defeased
to Stated Maturity or to such particular redemption date;


 


(b)   the
Company delivers to the Trustee a certificate from a nationally recognized firm
of independent certified public accountants expressing their opinion that the
payment of principal of, premium, if any, and interest, including Special
Interest, if any, when due and without reinvestment on the deposited U.S.
Government Obligations plus any deposited cash in U.S. dollars without
investment will provide cash at such times and in such amounts as will be
sufficient to pay principal of, premium, if any, and interest, including
Special Interest, if any, when due on all the Notes to be defeased to Stated
Maturity or redemption, as the case may be;


 


(c)   123
days pass after the deposit is made, and during the 123-day period, no Default
described in clause (viii) in Section 6.01 occurs with respect to the
Company or any other Person making such deposit which is continuing at the end
of the period;


 


72





















 


(d) no Default or Event of Default has occurred
and is continuing on the date of such deposit and after giving effect thereto;


 


(e) such deposit does not constitute a default
under any other agreement or instrument to which the Company or any of its
Subsidiaries is a party or by which the Company or any of its Subsidiaries is
bound;


 


(f) the Company delivers to the Trustee an
Opinion of Counsel to the effect that the trust resulting from the deposit does
not constitute, or is qualified as, a regulated investment company under the
Investment Company Act of 1940;


 


(g) in the case of the legal defeasance option,
the Company delivers to the Trustee an Opinion of Counsel stating that:


 


(1) the
Company has received from, or there has been published by, the Internal Revenue
Service a ruling, or


 


(2) since
the date of the Indenture, there has been a change in the applicable Federal
income tax law,


 


to the effect, in either
case, that, and based thereon such Opinion of Counsel shall confirm that, the
holders of the Notes will not recognize income, gain or loss for Federal income
tax purposes as a result of such defeasance and will be subject to Federal
income tax on the same amounts, in the same manner and at the same times as
would have been the case if such defeasance has not occurred;


 


(h) in the case of the covenant defeasance
option, the Company delivers to the Trustee an Opinion of Counsel to the effect
that the holders of the Notes will not recognize income, gain or loss for
Federal income tax purposes as a result of such covenant defeasance and will be
subject to Federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such covenant defeasance had not
occurred;


 


(i) the Company delivers to the Trustee an Officers’
Certificate stating that the deposit was not made by the Company with the
intent of preferring the holders of the Notes over the other creditors of the
Company or others; and


 


(j) the Company delivers to the Trustee an
Officers’ Certificate and an Opinion of Counsel, each stating that all
conditions precedent to the defeasance and discharge of the Notes have been
complied with as required by the Indenture.


 


Section 8.05.        Deposited Cash and U.S.
Government Obligations to be Held in Trust; Other Miscellaneous Provisions.


 


Subject to Section 8.06, all cash and U.S. Government
Obligations (including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee, collectively for purposes of this Section 8.05, the “Trustee”) pursuant to Section 8.04
in respect of the outstanding Notes shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Notes and this Indenture, to
the payment, either directly or through any Paying Agent (including the Company
acting as Paying Agent) as the Trustee may determine, to the Holders of all
sums due and to become due thereon in respect of principal, premium, if any,
and interest, but such cash and securities need not be segregated from other
funds except to the extent required by law.


 


The Company shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against the cash or
U.S. Government Obligations deposited pursuant to Section 8.04 hereof or the
principal and interest received in respect thereof other than any such tax, fee
or other charge which by law is for the account of the Holders of the
outstanding Notes.


 


73





















 


Anything in this Article 8 to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time to
time upon the request of the Company any cash or U.S. Government Obligations
held by it as provided in Section 8.04 which, in the opinion of a nationally
recognized firm of independent certified public accountants expressed in a
written certification thereof delivered to the Trustee (which may be the
certification delivered under Section 8.04(a)), are in excess of the amount
thereof that would then be required to be deposited to effect an equivalent
Legal Defeasance or Covenant Defeasance.


 


Section 8.06.        Repayment to the Company.


 


The Trustee shall promptly, and in any event pay to
the Company after request therefor, any excess money held with respect to the
Notes at such time in excess of amounts required to pay any of the Company’s
Obligations then owing with respect to the Notes.


 


Any cash or U.S. Government Obligations deposited with
the Trustee or any Paying Agent, or then held by the Company, in trust for the
payment of the principal, premium, if any, or interest on, any Note and
remaining unclaimed for one year after such principal of, premium, if any, or
interest has become due and payable shall be paid to the Company on its request
or (if then held by the Company) shall be discharged from such trust; and the
Holder shall thereafter, as an unsecured creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such cash and U.S. Government Obligations, and all liability of the
Company as trustee thereof, shall thereupon cease; provided,
however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in The New York Times and
The Wall Street Journal (national
edition), notice that such cash and securities remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the
date of such notification or publication, any unclaimed balance of such cash
and securities then remaining shall be repaid to the Company.


 


Section 8.07.        Reinstatement.


 


If the Trustee or Paying Agent is unable to apply any
cash or U.S. Government Obligations in accordance with Section 8.02 or 8.03, as
the case may be, by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company’s obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 8.02 or 8.03 until such time as the Trustee or Paying Agent is permitted
to apply all such cash and U.S. Government Obligations in accordance with
Section 8.02 or 8.03, as the case may be; provided, however,
that, if the Company makes any payment of principal of, premium, if any, or
interest on any Note following the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders to receive such
payment from the cash and securities held by the Trustee or Paying Agent.


 


ARTICLE 9.



AMENDMENT, SUPPLEMENT AND WAIVER


 


Section 9.01.        Without Consent of Holders of
Notes.


 


Notwithstanding Section 9.02 of this Indenture, the
Company and the Trustee may amend or supplement this Indenture or the Notes
without the consent of any Holder to:


 


(a)   cure
any ambiguity, omission, defect or inconsistency,


 


(b)   provide
for the assumption by a Surviving Person of the obligations of the Company
under this Indenture,


 


(c)   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


 


74





















 


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),


 


(d)   add
additional Guarantees with respect to the Notes or release Subsidiary
Guarantors from Subsidiary Guaranties as provided or permitted by the terms of
this Indenture,


 


(e)   secure
the Notes, add to the covenants of the Company for the benefit of the Holders
or surrender any right or power conferred upon the Company,


 


(f)    make
any change that does not adversely affect the rights of any Holder,


 


(g)   comply
with any requirement of the Commission in connection with the qualification of
this Indenture under the TIA, or


 


(h)   provide
for the issuance of Additional Notes in accordance with this Indenture.


 


Section 9.02.        With Consent of Holders of Notes.


 


Except as provided below in this Section 9.02, the
Company and the Trustee may amend or supplement this Indenture and the Notes
with the consent of the Holders of at least a majority in aggregate principal
amount of the Notes, including Additional Notes, if any, then outstanding
voting as a single class (including consents obtained in connection with a
purchase of or tender offer or exchange offer for the Notes), and, subject to
Sections 6.04 and 6.07, any existing Default or Event of Default (except a
continuing Default or Event of Default (i) in the payment of principal,
premium, if any, or interest, including Special Interest, if any, on, the Notes
and (ii) in respect of a covenant or provision which under this Indenture
cannot be amended without the consent of each Holder) or compliance with any
provisions of this Indenture and the Notes may be waived with the consent of
the Holders of at least a majority in aggregate principal amount of the Notes,
including Additional Notes, if any, then outstanding voting as a single class
(including consents obtained in connection with a purchase of or tender offer
or exchange offer for the Notes).


 


Without the consent of each Holder, an amendment or
waiver under this Section 9.02 may not:


 


(a) reduce the amount of Notes whose Holders must
consent to an amendment or waiver,


 


(b) reduce the rate of, or extend the time for
payment of, interest, including Special Interest, if any, on, any Note,


 


(c) reduce the principal of, or extend the Stated
Maturity of, any Note,


 


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


 


(e) impair the right of any Holder to receive
payment of principal of, premium, if any, and interest, including Special
Interest, if any, on, such Holder’s Notes on or after the due dates therefor or
to institute suit for the enforcement of any payment on or with respect to such
Holder’s Notes or any Subsidiary Guaranty,


 


(f) subordinate the Notes or any Subsidiary
Guaranty to any other obligation of the Company or the applicable Subsidiary
Guarantor,


 


(g) release any security interest that may have
been granted in favor of the Holders other than pursuant to the terms of such
security interest,


 


(h) reduce the premium payable upon the
redemption of any Note or change the time at which any Note may be redeemed, as
described under Section 3.07,


 


75





















 


(i) reduce the premium payable upon a Change of
Control or, at any time after a Change of Control has occurred, extend the time
at which the Change of Control Offer relating thereto must be made or at which
the Notes must be repurchased pursuant to such Change of Control Offer,


 


(j) at any time after the Company is obligated to
make a Prepayment Offer with the Excess Proceeds from Asset Sales, extend the
time at which such Prepayment Offer must be made or at which the Notes must be
repurchased pursuant thereto, or


 


(k) make any change in any Subsidiary Guaranty that
would adversely affect the Holders.


 


The Company may, but shall not be obligated to, fix a
record date for the purpose of determining the Persons entitled to consent to
any supplemental indenture.  If a record
date is fixed, the Holders on such record date, or their duly designated
proxies, and only such Persons, shall be entitled to consent to such
supplemental indenture, whether or not such Holders remain Holders after such
record date; provided that unless such consent
shall have become effective by virtue of the requisite percentage having been
obtained prior to the date which is 120 days after such record date, any such
consent previously given shall automatically and without further action by any
Holder be cancelled and of no further effect.


 


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


 


After an amendment, supplement or waiver under this
Section 9.02 becomes effective, the Company shall mail to each Holder at such
Holder’s address appearing in the Security Register a notice briefly describing
the amendment, supplement or waiver.  Any
failure of the Company to give such notice to all Holders, or any defect
therein, shall not, however, in any way impair or affect the validity of any
such amendment, supplement or waiver.


 


Section 9.03.        Compliance with Trust Indenture
Act.


 


Every amendment or supplement to this Indenture or the
Notes shall be set forth in an amended or supplemental indenture that complies
with the TIA as then in effect.


 


Section 9.04.        Revocation and Effect of
Consents.


 


Until an amendment, supplement or waiver becomes
effective, a consent to it by a Holder is a continuing consent by the Holder of
a Note and every subsequent Holder of a Note or portion thereof that evidences
the same debt as the consenting Holder’s Note, even if notation of the consent
is not made on any Note.  However, any
such Holder or subsequent Holder may revoke the consent as to its Note or
portion thereof if the Trustee receives written notice of revocation before the
date the waiver, supplement or amendment becomes effective.  An amendment, supplement or waiver shall
become effective in accordance with its terms and thereafter shall bind every
Holder.


 


Section 9.05.        Notation on or Exchange of Notes.


 


The Trustee may place an appropriate notation about an
amendment, supplement or waiver on any Note thereafter authenticated.  The
Company in exchange for all Notes may issue and, upon receipt of an
Authentication Order in accordance with Section 2.02 hereof, the Trustee shall
authenticate new Notes that reflect the amendment, supplement or waiver.


 


Failure to make the appropriate notation or issue a
new Note shall not affect the validity and effect of such amendment, supplement
or waiver.


 


76





















 


Section 9.06.                         Trustee to Sign Amendments, etc.


 


The Trustee shall sign
any amended or supplemental indenture authorized pursuant to this Article 9 if
the amendment or supplement does not adversely affect the rights, duties,
liabilities or immunities of the Trustee.  None of the Company nor any
Subsidiary Guarantor may sign an amended or supplemental indenture until its
board of directors (or committee serving a similar function) approves it.  In executing any amended or supplemental
indenture, the Trustee shall be entitled to receive and (subject to Section
7.01 hereof) shall be fully protected in relying upon an Officers’ Certificate
and an Opinion of Counsel stating that the execution of such amended or
supplemental indenture is authorized or permitted by this Indenture and that
such amended or supplemental indenture is the legal, valid and binding
obligation of the Company enforceable against it in accordance with its terms,
subject to customary exceptions and that such amended or supplemental indenture
complies with the provisions hereof (including Section 9.03).


 


ARTICLE 10.


 


SUBSIDIARY GUARANTIES


 


Section 10.01.                  Subsidiary Guaranty.


 


Subject to this Article
10, the Subsidiary Guarantors hereby unconditionally guarantee to each Holder
of a Note authenticated and delivered by the Trustee and to the Trustee and its
successors and assigns:  (a) the due and
punctual payment of the principal of, premium, if any, and interest, including
Special Interest, if any, on, the Notes, subject to any applicable grace period,
whether at Stated Maturity, by acceleration, redemption or otherwise, the due
and punctual payment of interest on the overdue principal of and premium, if
any, and, to the extent permitted by law, interest on, the Notes, and the due
and punctual performance of all other obligations of the Company to the Holders
or the Trustee under this Indenture, any Registration Rights Agreement or any
other agreement with or for the benefit of the Holders or the Trustee, all in
accordance with the terms hereof and thereof; and (b) in case of any extension
of time of payment or renewal of any Notes or any of such other obligations,
that the same shall be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at Stated
Maturity, by acceleration pursuant to Section 6.02, redemption or
otherwise.  Failing payment when due of
any amount so guaranteed or any performance so guaranteed for whatever reason,
the Subsidiary Guarantors shall be jointly and severally obligated to pay the
same immediately.  Each Subsidiary
Guarantor agrees that this is a guarantee of payment and not a guarantee of
collection.


 


Each Subsidiary Guarantor
hereby agrees that its obligations with regard to its Subsidiary Guarantee
shall be joint and several, and unconditional, irrespective of the validity or
enforceability of the Notes or the obligations of the Company under this
Indenture, the absence of any action to enforce the same, the recovery of any
judgment against the Company or any other obligor with respect to this
Indenture, the Notes or the Obligations of the Company under this Indenture or
the Notes, any action to enforce the same or any other circumstances (other
than complete performance) which might otherwise constitute a legal or equitable
discharge or defense of a Subsidiary Guarantor. 
Each Subsidiary Guarantor further, to the extent permitted by law,
waives and relinquishes all claims, rights and remedies accorded by applicable
law to guarantors and agrees not to assert or take advantage of any such
claims, rights or remedies, including but not limited to:  (a) any right to require any of the Trustee,
the Holders or the Company (each a “Benefited Party”),
as a condition of payment or performance by such Subsidiary Guarantor, to (1) proceed
against the Company, any other guarantor (including any other Subsidiary
Guarantor) of the Obligations under the Subsidiary Guaranties or any other
Person, (2) proceed against or exhaust any security held from the Company, any
such other guarantor or any other Person, (3) proceed against or have resort to
any balance of any deposit account or credit on the books of any Benefited
Party in favor of the Company or any other Person, or (4) pursue any other
remedy in the power of any Benefited Party whatsoever; (b) any defense arising
by reason of the incapacity, lack of authority or any disability or other
defense of the Company, including any defense based on or arising out of the
lack of validity or the unenforceability of the Obligations under the Subsidiary
Guaranties or any agreement or instrument relating thereto or by reason of the
cessation of the liability of the Company from any cause other than payment in
full of the Obligations under the Subsidiary Guaranties; (c) any defense based
upon any statute or rule of law which provides that the obligation of a surety
must be neither larger in amount nor in other respects more burdensome than
that of the principal; (d) any defense based upon any Benefited Party’s errors
or omissions in the administration of the Obligations under the Subsidiary
Guaranties, except behavior


 


77





















 


which amounts to bad faith; (e)(1) any principles or
provisions of law, statutory or otherwise, which are or might be in conflict
with the terms of the Subsidiary Guaranties and any legal or equitable
discharge of such Subsidiary Guarantor’s obligations hereunder, (2) the benefit
of any statute of limitations affecting such Subsidiary Guarantor’s liability
hereunder or the enforcement hereof, (3) any rights to set-offs, recoupments
and counterclaims and (4) the requirements of promptness, diligence or that any
Benefited Party protect, secure, perfect or insure any security interest or
lien or any property subject thereto; (f) notices, demands, presentations,
protests, notices of protest, notices of dishonor and notices of any action or
inaction, including acceptance of the Subsidiary Guaranties, notices of Default
under the Notes or any agreement or instrument related thereto, notices of any
renewal, extension or modification of the Obligations under the Subsidiary
Guaranties or any agreement related thereto, and notices of any extension of
credit to the Company and any right to consent to any thereof; (g) to the
extent permitted under applicable law, the benefits of any “One Action” rule;
and (h) any defenses or benefits that may be derived from or afforded by law
which limit the liability of or exonerate guarantors or sureties, or which may
conflict with the terms of the Subsidiary Guaranties.  Except to the extent expressly provided
herein, including Sections 8.02, 8.03 and 10.05, each Subsidiary Guarantor
hereby covenants that its Subsidiary Guaranties shall not be discharged except
by complete performance of the obligations contained in its Subsidiary Guaranty
and this Indenture.


 


If any Holder or the
Trustee is required by any court or otherwise to return to the Company, the
Subsidiary Guarantors or any custodian, trustee, liquidator or other similar
official acting in relation to either the Company or the Subsidiary Guarantors,
any amount paid by either to the Trustee or such Holder, this Subsidiary
Guaranty, to the extent theretofore discharged, shall be reinstated in full
force and effect.


 


Each Subsidiary Guarantor
agrees that it shall not be entitled to any right of subrogation in relation to
the Holders in respect of any obligations guaranteed hereby until payment in
full of all obligations guaranteed hereby. 
Each Subsidiary Guarantor further agrees that, as between the Subsidiary
Guarantors, on the one hand, and the Holders and the Trustee, on the other
hand, (x) the maturity of the obligations guaranteed hereby may be accelerated
as provided in Section 6.02 hereof for the purposes of this Subsidiary
Guaranty, notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the obligations guaranteed hereby and (y) in
the event of any declaration of acceleration of such obligations as provided in
Section 6.02 hereof, such obligations (whether or not due and payable) shall
forthwith become due and payable by the Subsidiary Guarantors for the purpose
of this Subsidiary Guaranty.  The
Subsidiary Guarantors shall have the right to seek contribution from any non-paying
Subsidiary Guarantor so long as the exercise of such right does not impair the
rights of the Holders under the Subsidiary Guaranty.


 


Section 10.02.                  Limitation on Subsidiary
Guarantor Liability.


 


(a)          Each Subsidiary
Guarantor, and by its acceptance of the Notes, each Holder, hereby confirms
that it is the intention of all such parties that the Subsidiary Guaranty of
such Subsidiary Guarantor not constitute a fraudulent transfer or conveyance
for purposes of any Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the
Uniform Fraudulent Transfer Act or any similar federal or state law to the
extent applicable to any Subsidiary Guaranty. 
To effectuate the foregoing intention, the Trustee, the Holders and the
Subsidiary Guarantors hereby irrevocably agree that each Subsidiary Guarantor’s
liability shall be that amount from time to time equal to the aggregate
liability of such Subsidiary Guarantor under the Subsidiary Guaranty, but shall
be limited to the lesser of (a) the aggregate amount of the Company’s
obligations under the Notes and this Indenture or (b) the amount, if any,
which would not have (1) rendered the Subsidiary Guarantor “insolvent” (as
such term is defined in the Federal Bankruptcy Code and in the Debtor and
Creditor Law of the State of New York) or (2) left it with unreasonably
small capital at the time its Subsidiary Guaranty with respect to the Notes was
entered into, after giving effect to the incurrence of existing Debt
immediately before such time; provided, however, it shall be a presumption in any lawsuit or
proceeding in which a Subsidiary Guarantor is a party that the amount
guaranteed pursuant to the Subsidiary Guaranty with respect to the Notes is the
amount described in clause (a) above unless any creditor, or
representative of creditors of the Subsidiary Guarantor, or debtor in
possession or trustee in bankruptcy of the Subsidiary Guarantor, otherwise
proves in a lawsuit that the aggregate liability of the Subsidiary Guarantor is
limited to the amount described in clause (b).


 


(b)         In making any
determination as to the solvency or sufficiency of capital of a Subsidiary
Guarantor in accordance with the proviso of Section 10.02(a), the right of each
Subsidiary Guarantor to contribution


 


78





















 


from other Subsidiary Guarantors and any other rights
such Subsidiary Guarantor may have, contractual or otherwise, shall be taken
into account.


 


Section 10.03.                  Execution, Delivery and
Effectiveness of Subsidiary Guaranties.


 


(a)          To evidence its
Subsidiary Guaranty set forth in Section 10.01, each Subsidiary Guarantor
hereby agrees that a notation of such Subsidiary Guaranty in substantially the
form included in Exhibit E attached hereto shall
be endorsed by an Officer of such Subsidiary Guarantor on each Note
authenticated and delivered by the Trustee and that this Indenture shall be
executed on behalf of such Subsidiary Guarantor by its Chief Executive Officer,
President, Chief Financial Officer or one of its Vice Presidents.


 


(b)         Each Subsidiary Guarantor
hereby agrees that its Subsidiary Guaranty set forth in Section 10.01 shall
remain in full force and effect notwithstanding any failure to endorse on each
Note a notation of such Subsidiary Guaranty.


 


(c)          If an Officer whose
signature is on this Indenture or on the Subsidiary Guaranty no longer holds
that office at the time the Trustee authenticates the Note on which a
Subsidiary Guaranty is endorsed, the Subsidiary Guaranty shall be valid
nevertheless.


 


(d)         The delivery of any Note
by the Trustee, after the authentication thereof hereunder, shall constitute
due delivery of the Subsidiary Guaranty set forth in this Indenture on behalf
of the Subsidiary Guarantors.


 


(e)          The Company hereby
agrees that it shall cause each Person that becomes obligated to provide a
Subsidiary Guaranty pursuant to Section 4.19 to execute a supplemental
indenture in form and substance reasonably satisfactory to the Trustee,
pursuant to which such Person provides the guarantee set forth in this Article
10 and otherwise assumes the obligations and accepts the rights of a Subsidiary
Guarantor under this Indenture, in each case with the same effect and to the
same extent as if such Person had been named herein as a Subsidiary
Guarantor.  The Company also hereby
agrees to cause each such new Subsidiary Guarantor to evidence its Subsidiary
Guaranty by endorsing a notation of such Subsidiary Guaranty on each Note as
provided in this Section 10.03.


 


(f)            Notwithstanding the
other provisions of this Indenture, the Subsidiary Guaranties of the U.S.
Subsidiary Guarantors shall not become effective until the U.S. Subsidiary
Stock Contribution has taken place.  Upon
the consummation of the U.S. Subsidiary Stock Contribution, the Company shall
provide to the Trustee the Officers’ Certificate in substantially the form
included in Exhibit F attached hereto.


 


Section 10.04.                  Subsidiary Guarantors May
Consolidate, etc., on Certain Terms.


 


Except as otherwise
provided in Section 10.05, no Subsidiary Guarantor may consolidate with or
merge with or into (whether or not such Subsidiary Guarantor is the Surviving
Person) another Person whether or not affiliated with such Subsidiary Guarantor
unless:


 


(a)          subject to Section
10.05, the Person formed by or surviving any such consolidation or merger (if
other than a Subsidiary Guarantor or the Company) unconditionally assumes all
the obligations of such Subsidiary Guarantor, pursuant to a supplemental
indenture in form satisfactory to the Trustee, under this Indenture, the
Subsidiary Guaranty and any Registration Rights Agreement on the terms set
forth herein or therein; and


 


(b)         the Subsidiary Guarantor
complies with the requirements of Article 5 hereof.


 


In case of any such
consolidation, merger, sale or conveyance and upon the assumption by the
Surviving Person, by supplemental indenture, executed and delivered to the
Trustee and satisfactory in form to the Trustee, of the Subsidiary Guaranty
endorsed upon the Notes and the due and punctual performance of all of the
covenants and conditions of this Indenture to be performed by the Subsidiary Guarantor,
such Surviving Person shall succeed to and be substituted for the Subsidiary
Guarantor with the same effect as if it had been named herein as a Subsidiary
Guarantor.  Such Surviving Person
thereupon may cause to be signed any or all of the Subsidiary


 


79





















 


Guaranties to be endorsed upon all of the Notes
issuable hereunder which theretofore shall not have been signed by the Company
and delivered to the Trustee.  All the
Subsidiary Guaranties so issued shall in all respects have the same legal rank
and benefit under this Indenture as the Subsidiary Guaranties theretofore and
thereafter issued in accordance with the terms of this Indenture as though all
of such Subsidiary Guaranties had been issued at the date of the execution
hereof.


 


Except as set forth in
Articles 4 and 5, and notwithstanding clauses (a) and (b) above, nothing
contained in this Indenture or in any of the Notes shall prevent any
consolidation or merger of a Subsidiary Guarantor with or into the Company or
another domestic Subsidiary Guarantor, or shall prevent any sale or conveyance
of the property of a Subsidiary Guarantor as an entirety or substantially as an
entirety to the Company or another domestic Subsidiary Guarantor.


 


Section 10.05.                  Releases Following Merger,
Consolidation or Sale of Assets, Etc..


 


In the event of a sale or
other disposition of all or substantially all the assets of any Subsidiary
Guarantor, by way of merger, consolidation or otherwise, or a sale or other
disposition of all the Capital Stock of any Subsidiary Guarantor, in each case
in accordance with the provisions of this Indenture to a Person that is not
(either before or after giving effect to such transactions) a Subsidiary of the
Company, then such Subsidiary Guarantor (in the event of a sale or other
disposition, by way of merger, consolidation or otherwise, of all the Capital
Stock of such Subsidiary Guarantor) or the corporation acquiring the property
(in the event of a sale or other disposition of all or substantially all the
assets of such Subsidiary Guarantor) shall be released and relieved of any
obligations under its Subsidiary Guaranty; provided that
the net proceeds of such sale or other disposition shall be applied in
accordance with the applicable provisions of this Indenture, including without
limitation Section 4.13.  If a Foreign
Restricted Subsidiary that is a Subsidiary Guarantor is released or discharged
from its Guaranty of other Debt of the Company or any Restricted Subsidiary for
any reason whatsoever (except a discharge by or as a result of payment under
such Guarantee), or if such other Guaranteed Debt of the Company or any
Domestic Restricted Subsidiary is repaid in full by the Company or such
Domestic Restricted Subsidiary or refinanced with other Debt that is not
Guaranteed by such Foreign Restricted Subsidiary, then such Foreign Restricted
Subsidiary shall also be released and relieved of any obligations under its
Subsidiary Guaranty.  If the Company
redesignates a Subsidiary Guarantor as an Unrestricted Subsidiary in accordance
with the provisions of Section 4.17, such Subsidiary Guarantor shall be
released and relieved of any obligations under its Subsidiary Guaranty.  Upon delivery by the Company to the Trustee
of an Officers’ Certificate and an Opinion of Counsel to the effect that such
sale or other disposition was made by the Company in accordance with the
provisions of this Indenture, including without limitation Section 4.13, such
Foreign Restricted Subsidiary that is a Subsidiary Guarantor is entitled to
release from its Subsidiary Guaranty in accordance with the provisions of this
Indenture or such Subsidiary Guarantor has been redesignated as an Unrestricted
Subsidiary in accordance with the provisions of this Indenture, including
without limitation Section 4.17, the Trustee shall execute any documents
reasonably required in order to evidence the release of any Subsidiary
Guarantor from its obligations under its Subsidiary Guaranty.


 


Any Subsidiary Guarantor
not released from its obligations under its Guaranty shall remain liable for
the full amount of principal of and interest on the Notes and for the other
obligations of any Subsidiary Guarantor under this Indenture as provided in
this Article 10.


 


80





















 


ARTICLE 11.


 


SATISFACTION AND DISCHARGE


 


Section 11.01.                  Satisfaction and Discharge.


 


This Indenture shall be
discharged and shall cease to be of further effect, except as to surviving
rights of registration of transfer or exchange of the Notes, as to all Notes
issued hereunder, when


 


(a)          either:


 


(i)                                     all
Notes that have been previously authenticated and delivered (except lost,
stolen or destroyed Notes that have been replaced or paid or Notes whose
payment has previously been deposited in trust or segregated and held in trust
by the Company and thereafter repaid to the Company or discharged from such
trust) have been delivered to the Trustee for cancellation; or


 


(ii)                                  all
Notes that have not been previously delivered to the Trustee for cancellation,
(x) have become due and payable by their terms, (y) will become due and payable
at their Stated Maturity within one year or (z) are to be called for redemption
within one year under arrangements reasonably satisfactory to the Trustee for
the giving of notice of redemption by the Trustee in the name, and at the
expense, of the Company; and the Company has irrevocably deposited or caused to
be deposited with the Trustee as trust funds in trust solely for the benefit of
the Holders, cash in U.S. dollars in such amounts as shall be sufficient
without consideration of any reinvestment of interest, to pay and discharge the
entire Debt represented by the Notes not previously delivered to the Trustee
for cancellation or redemption for principal, premium, if any, and interest,
including Special Interest, if any, on, the Notes at such maturity;


 


(b)         the Company has paid or
caused to be paid all other sums payable by the Company under this Indenture;
and


 


(c)          the Company has
delivered to the Trustee an Officers’ Certificate and Opinion of Counsel, each
stating that (i) all conditions precedent relating to the satisfaction and
discharge of this Indenture have been complied with, and (ii) such satisfaction
and discharge will not result in a Default under this Indenture or any other
agreement or instrument to which the Company or any of its Subsidiaries is a
party or by which the Company or any of its Subsidiaries is bound..


 


Section 11.02.                  Deposited Cash to be Held in
Trust; Other Miscellaneous Provisions.


 


Subject to Section 11.03,
all cash (including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 11.02, the “Trustee”) pursuant to Section 11.01 in respect of the
outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as Paying Agent) as the Trustee may determine, to the Holders of all
sums due and to become due thereon in respect of principal, premium, if any,
and interest, but such cash need not be segregated from other funds except to
the extent required by law.


 


The Company shall pay and
indemnify the Trustee against any tax, fee or other charge imposed on or
assessed against the cash deposited pursuant to Section 11.01 hereof or the
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding Notes.


 


Section 11.03.                  Repayment to the Company.


 


Any cash deposited with
the Trustee or any Paying Agent, or then held by the Company, in trust for the
payment of the principal of, premium, if any, or interest on, any Note and
remaining unclaimed for one year after such principal, and premium, if any, or
interest has become due and payable shall be paid to the Company on


 


81





















 


its request or (if then held by the Company) shall be
discharged from such trust; and the Holder shall thereafter, as an unsecured
creditor, look only to the Company for payment thereof, and all liability of
the Trustee or such Paying Agent with respect to such cash, and all liability
of the Company as trustee thereof, shall thereupon cease; provided,
however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in The New York Times and
The Wall Street Journal (national
edition), notice that such cash remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
notification or publication, any unclaimed balance of such cash then remaining
shall be repaid to the Company.


 


ARTICLE 12.


 


MISCELLANEOUS


 


Section 12.01.                  Trust Indenture Act Controls.


 


If any provision of this
Indenture limits, qualifies or conflicts with another provision which is
required to be included in this Indenture by the TIA, the provision required by
the TIA shall control.


 


Section 12.02.                  Notices.


 


Any notice or
communication by the Company or the Subsidiary Guarantors and the Trustee to
the other is duly given if in writing and delivered in person or mailed by
first class mail (registered or certified, return receipt requested), facsimile
transmission or overnight air courier guaranteeing next-day delivery, to the
other’s address:


 


If to the Company or the Subsidiary Guarantors:


 


Neenah Paper, Inc.


Preston Ridge III


3460 Preston Ridge Road, Suite 600


Alpharetta, Georgia 30005


Attention: 
General Counsel


Telecopier No.: 
(678) 518-3283


 


With a copy to:


 


If to the Trustee:


 


Bank of New York, Trust Company, N.A.


100 Ashford Center North


Suite 520


Atlanta, Georgia 30338


Attention: 
Corporate Trust Department


Telecopier No.: 
(770) 698-5195


 


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


 


All notices and
communications (other than those sent to the Trustee or Holders) shall be
deemed to have been duly given: at the time delivered by hand, if
personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when receipt acknowledged, if sent by facsimile
transmission; and the next Business Day after timely delivery to the courier,
if sent by overnight air courier guaranteeing next-day delivery.  All notices and communications to the Trustee
shall be deemed duly given and effective only upon receipt.


 


82





















 


Any notice or
communication to a Holder shall be mailed by first class mail, certified or
registered, return receipt requested, or by overnight air courier guaranteeing
next-day delivery to its address shown on the Security Register.  Any
notice or communication shall also be so mailed to any Person described in TIA
§ 313(c), to the extent required by the TIA.  Failure to mail a notice or communication to
a Holder or any defect in it shall not affect its sufficiency with respect to
other Holders.


 


If a notice or
communication is mailed in the manner provided above within the time
prescribed, it is duly given, whether or not the addressee receives it.


 


If the Company mails a
notice or communication to Holders, it shall mail a copy to the Trustee and
each Agent at the same time.


 


Section 12.03.                  Communication by Holders of
Notes with Other Holders of Notes.


 


Holders may communicate
pursuant to TIA §312(b) with other Holders with respect to their rights under
this Indenture or the Notes.  The Company, the Trustee, the Registrar and
anyone else shall have the protection of TIA §312(c).


 


Section 12.04.                  Certificate and Opinion as to
Conditions Precedent.


 


Upon any request or
application by the Company to the Trustee to take any action under any
provision of this Indenture, the Company shall furnish to the Trustee:


 


(a)          an Officers’ Certificate
in form and substance reasonably satisfactory to the Trustee (which shall
include the statements set forth in Section 12.05 hereof) stating that, in the
opinion of the signers, all conditions precedent and covenants, if any,
provided for in this Indenture relating to the proposed action have been
complied with; and


 


(b)         an Opinion of Counsel in
form and substance reasonably satisfactory to the Trustee (which shall include
the statements set forth in Section 12.05 hereof) stating that, in the opinion
of such counsel, all such conditions precedent and covenants have been complied
with.


 


Section 12.05.                  Statements Required in
Certificate or Opinion.


 


Each certificate or
opinion with respect to compliance with a condition or covenant provided for in
this Indenture (other than a certificate provided pursuant to TIA §314(a)(4))
shall comply with the provisions of TIA §314(e) and shall include:


 


(a)          a statement that the
Person making such certificate or opinion has read such covenant or condition;


 


(b)         a brief statement as to
the nature and scope of the examination or investigation upon which the
statements or opinions contained in such certificate or opinion are based;


 


(c)          a statement that, in the
opinion of such Person, he or she has made such examination or investigation as
is necessary to enable such Person to express an informed opinion as to whether
or not such covenant or condition has been complied with; and


 


(d)         a statement as to whether
or not, in the opinion of such Person, such condition or covenant has been
complied with.


 


With respect to
matters of fact, an Opinion of Counsel may rely on an Officers’ Certificate,
certificates of public officials or reports or opinions of experts.


 


83





















 


Section 12.06.                  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 functions.


 


Section 12.07.                  No Personal Liability of
Directors, Officers, Employees and Stockholders.


 


No past, present or
future director, officer, employee, incorporator or stockholder of the Company
or any Subsidiary Guarantor, as such, shall have any liability for any
obligations of the Company or any Subsidiary Subsidiary Guarantor under the
Notes, any Subsidiary Guaranty or this Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation.  Each Holder by accepting a Note waives and
releases all such liability.  The waiver
and release are part of the consideration for issuance of the Notes.  The waiver and release may not be effective
to waive or release liabilities under the U.S. federal securities laws.


 


Section 12.08.                  Governing Law.


 


THE INTERNAL LAWS OF THE
STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS INDENTURE AND THE
NOTES WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE
EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.


 


Section 12.09.                  No Adverse Interpretation of
Other Agreements.


 


This Indenture may not be
used to interpret any other indenture, loan or debt agreement of the Company or
its Subsidiaries or of any other Person.  Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.


 


Section 12.10.                  Successors.


 


All covenants and
agreements of the Company and the Subsidiary Guarantors in this Indenture and
the Notes shall bind its successors.  All covenants and agreements of the
Trustee in this Indenture shall bind their respective successors.


 


Section 12.11.                  Severability.


 


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


 


Section 12.12.                  Consent to Jurisdiction and
Service of Process.


 


(a)          The Company and each
Subsidiary Guarantor irrevocably consents to the jurisdiction of the courts of
the State of New York and the courts of the United States of America located in
the City of New York and County of New York, over any suit, action or
proceeding with respect to this Indenture or the transactions contemplated
hereby.  The Company and each Subsidiary
Guarantor waives any objection that it may have to the venue of any suit,
action or proceeding with respect to this Indenture or the transactions
contemplated hereby in the courts of the State of New York or the courts of the
United States of America, in each case, located in the City of New York and
County of New York, or that such suit, action or proceeding brought in the
courts of the State of New York or the United States of America, in each case,
located in the City of New York and County of New York was brought in an
inconvenient court and agrees not to plead or claim the same.


 


(b)         The Company and each
Subsidiary Guarantor irrevocably appoints CT Corporation System, as its
authorized agent in the State of New York upon which process may be served in
any such suit or proceedings, and agrees that service of process upon such
agent, and written notice of said service to 111 Eighth Avenue, New York, New
York 10011, by the person serving the same to the address provided in Section
12.02, shall be deemed in every respect effective service of process upon the
Company and each Subsidiary Guarantor in any such suit or


 


84





















 


proceeding.  The
Company and each Subsidiary Guarantor further agrees to take any and all action
as may be necessary to maintain such designation and appointment of such agent
in full force and effect for the term of this Indenture.


 


Section 12.13.                  Counterpart 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.


 


Section 12.14.                  Table of Contents, Headings, etc.


 


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


 


Section 12.15.                  Qualification of this Indenture.


 


The Company shall qualify
this Indenture under the TIA in accordance with the terms and conditions of any
Registration Rights Agreement and shall pay all reasonable costs and expenses
(including attorneys’ fees and expenses for the Company, the Trustee and the
Holders) incurred in connection therewith, including, but not limited to, costs
and expenses of qualification of this Indenture and the Notes and printing this
Indenture and the Notes.  The Trustee shall
be entitled to receive from the Company any such Officers’ Certificates,
Opinions of Counsel or other documentation as it may reasonably request in
connection with any such qualification of this Indenture under the TIA.


 


[Signatures on following
page]


 


85





















 


	
  SIGNATURES

  
	
   

  	
   

  	
   

  	
   

  
	
  Dated as of November 30, 2004

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  NEENAH PAPER, INC.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Bonnie C. Lind

  	
   

  
	
   

  	
   

  	
   Name: Bonnie C.
  Lind

  	
   

  
	
   

  	
   

  	
   Title: Vice
  President

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  NEENAH PAPER SALES,
  INC.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Bonnie C. Lind

  	
   

  
	
   

  	
   

  	
   Name: Bonnie C.
  Lind

  	
   

  
	
   

  	
   

  	
   Title: Vice
  President

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  NEENAH PAPER MICHIGAN,
  INC.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Bonnie C. Lind

  	
   

  
	
   

  	
   

  	
   Name: Bonnie C.
  Lind

  	
   

  
	
   

  	
   

  	
   Title: Vice
  President

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  NEENAH PAPER COMPANY OF
  CANADA

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Bonnie C. Lind

  	
   

  
	
   

  	
   

  	
   Name: Bonnie C.
  Lind

  	
   

  
	
   

  	
   

  	
   Title: Vice
  President

  	
   

  



 





















 


	
   

  	
  THE BANK OF NEW YORK
  TRUST COMPANY, N.A.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Barbara K. Royal

  	
   

  
	
   

  	
   

  	
   Name: Barbara K.
  Royal

  	
   

  
	
   

  	
   

  	
   Title: Assistant
  Vice President

  	
   

  



 





















 


EXHIBIT A


 


(Face of Note)


 


73/8%
SENIOR NOTES DUE 2014


 




	
   

  	
  CUSIP 

  
	
  No.

  	
  $

  






 


NEENAH
PAPER, INC.


 


promises to pay to CEDE & CO., INC. or registered
assigns, the principal sum of                           
Dollars ($                          )
on November 15, 2014.


 


Interest Payment Dates:  May 15 and November 15, commencing May 15,
2005.


 


Record Dates:  May 1 and November 1.


 


Dated:                           ,
20[   ].


 


A-1





















 


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


 


 


	
   

  	
  NEENAH PAPER, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  
	
   

  
	
  This is one of the [Global]

  
	
  Notes referred to in the

  
	
  within-mentioned Indenture:

  
	
   

  
	
  THE BANK OF NEW YORK TRUST COMPANY, N.A.,

  
	
  as Trustee

  
	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized Signatory

  
	
   

  
	
  Dated:                        ,
  20[   ]

  
						



 


A-2





















 


(Back of Note)


 


73/8%
SENIOR NOTES DUE 2014


 


[Insert the Global Note Legend, if applicable
pursuant to the terms of the Indenture]


 


[Insert the Private Placement Legend, if applicable
pursuant to the terms of the Indenture]


 


Capitalized terms used
herein shall have the meanings assigned to them in the Indenture referred to
below unless otherwise indicated.


 


1.                                       Interest.  Neenah Paper,
Inc., a Delaware corporation (the “Company”),
promises to pay interest on the principal amount of this Note at 73/8%
per annum until maturity and shall pay Special Interest, if any, as provided in
Section 8 of the Registration Rights Agreement.  The Company shall pay
interest semi-annually on May 15 and November 15 of each year, or if any such
day is not a Business Day, on the next succeeding Business Day (each an “Interest Payment Date”).  Interest shall accrue from the most recent
date to which interest has been paid on the Notes (or one or more Predecessor
Notes) or, if no interest has been paid, from November 30, 2004; provided, however, that if there is no existing Default in
the payment of interest, and if this Note is authenticated between a record
date referred to on the face hereof and the next succeeding Interest Payment
Date, interest shall accrue from such next succeeding Interest Payment Date; provided, further, that
the first Interest Payment Date shall be the first of May 15 or November 15 to
occur after the date of issuance, unless such May 15 or November 15 occurs
within one calendar month of such date of issuance, in which case the first
Interest Payment Date shall be the second of May 15 and November 15 to occur
after the date of issuance.  The Company
shall pay interest (including post-petition interest in any proceeding under
any Bankruptcy Law) on overdue principal and premium, if any, from time to time
at a rate that is 1% per annum in excess of the interest rate then in effect
under the Indenture and this Note; it shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest and Special Interest, if any (without regard to any
applicable grace periods), from time to time at the same rate to the extent
lawful.  Interest shall be computed on the basis of a 360-day year of
twelve 30-day months.


 


2.                                       Method of Payment.  The Company
shall pay interest on the Notes (except defaulted interest) to the Persons in
whose name this Note (or one or more Predecessor Notes) is registered at the
close of business on the May 15 or November 15 next preceding the Interest
Payment Date, even if such Notes are cancelled after such record date and on or
before such Interest Payment Date, except as provided in Section 2.12 of the
Indenture with respect to defaulted interest.  The Notes shall be payable
as to principal, premium, if any, and interest and Special Interest, if any, at
the office or agency of the Company maintained for such purpose, or, at the
option of the Company, payment of interest may be made by check mailed to the
Holders at their addresses set forth in the Security Register; provided, however, that
payment by wire transfer of immediately available funds shall be required with
respect to principal of and interest and Special Interest, if any, and premium,
if any, on, all Global Notes and all other Notes the Holders of which shall
have provided wire transfer instructions to the Company or the Paying
Agent.  Such payment shall be in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts.


 


3.                                       Paying Agent and Registrar.  Initially,
The Bank of New York Trust Company, N.A., the Trustee under the Indenture,
shall act as Paying Agent and Registrar.  The Company may change any
Paying Agent or Registrar without notice to any Holder.  The Company or
any of its Subsidiaries may act in any such capacity.


 


4.                                       Indenture.  The Company issued the Notes under an
Indenture dated as of November 30, 2004 (“Indenture”)
among the Company, the guarantors party thereto (the “Subsidiary
Guarantors”) and the Trustee.  The terms of the Notes
include those stated in the Indenture and those made part of the Indenture by
reference to the Trust Indenture Act of 1939, as amended (15 U.S.
Code §§ 77aaa-77bbbb).  The Notes are subject to all such terms,
and Holders are referred to the Indenture and such Act for a statement of such
terms.  To the extent any provision of this Note conflicts with the
express provisions of the Indenture, the provisions of the Indenture shall
govern and be controlling.


 


A-3





















 


5.                                       Optional Redemption.


 


(a)          Except as set forth in
clauses (b) and (c) of Section 3.07 of the Indenture, the Notes shall not be
redeemable at the option of the Company prior to November 15, 2009.  Starting on November 15, 2009, the Company
may redeem all or a portion of the Notes, at once or over time, after giving
the notice required pursuant to Section 3.03 of the Indenture, at the
redemption prices set forth below, plus accrued and unpaid interest, including
Special Interest, if any, to but not including the applicable redemption date
(subject to the right of Holders of record on the relevant Regular Record Date to
receive interest due on the relevant Interest Payment Date), if redeemed during
the 12-month period commencing on November 15, 2009 of the years indicated
below, and are expressed as percentages of principal amount:


 


	
  Year

  	
   

  	
  Redemption

  Price

  	
   

  
	
  2009

  	
   

  	
  103.688

  	
  %

  
	
  2010

  	
   

  	
  102.458

  	
  %

  
	
  2011

  	
   

  	
  101.229

  	
  %

  
	
  2012 and
  thereafter

  	
   

  	
  100.000

  	
  %

  



 


(b)         At any time and from time
to time, prior to November 15, 2007, the Company may redeem up to a
maximum of 35% of the aggregate principal amount of the Notes (including any
Additional Notes) with the proceeds of one or more Equity Offerings, at a
redemption price equal to 107.375% of the principal amount thereof, plus
accrued and unpaid interest, including Special Interest, if any, to but not
including the redemption date (subject to the right of Holders of record on the
relevant Regular Record Date to receive interest due on the relevant Interest
Payment Date); provided, however,
that after giving effect to any such redemption, at least 65% of the aggregate
principal amount of the Notes (including any Additional Notes) remains
outstanding.  Any such redemption shall
be made within 90 days of such Equity Offering upon not less than 30 nor more
than 60 days’ prior notice.


 


(c)          At any time prior to
November 15, 2009, after the completion of a Change of Control Offer (as
defined in Section 4.18 of the Indenture) that was accepted by Holders of not
less than 75% of the aggregate principal amount of the Notes then outstanding,
the Company may redeem all of the Notes of any Holder who has not accepted the
Change of Control Offer (the “Untendered Notes”)
upon not less than 30 nor more than 60 days’ prior notice (the “Change of Control Redemption Notice”)
but in no event more than 90 days after the completion of such Change of
Control Offer, such notice to be provided in the manner required under Section
3.03, at a redemption price equal to the greater of:


 


(i)                                     101%
of the principal amount of the Untendered Notes; and


 


(ii)                                  the
sum of the present values of (A) the redemption price of the Notes as of
November 15, 2009 (as set forth in clause (a) above) and (B) the remaining
scheduled payments of interest from the redemption date (the “Change of Control Redemption Date”)
through November 15, 2009, but excluding accrued and unpaid interest through
the Change of Control Redemption Date and excluding Special Interest,
discounted to the Change of Control Redemption Date (assuming a 360-day year
consisting of twelve 30-day months) at the Treasury Rate plus 50 basis points;


 


plus, in either case, accrued and unpaid interest, including Special
Interest, if any, to but not including the Change of Control Redemption Date
(subject to the right of Holders of record on the relevant Regular Record Date
to receive interest due on the relevant Interest Payment Date).


 


Any Change of Control
Redemption Notice pursuant to this clause (c) above shall include the
applicable method of calculation of the redemption price but need not include
the redemption price itself.  The actual
redemption price, calculated as described above, shall be set forth in an
Officers’ Certificate delivered to the Trustee no later than two Business Days
prior to the Change of Control Redemption Date unless clause (b) of the
definition of “Comparable Treasury Price” in the Indenture is applicable, in
which case such Officers’ Certificate should be delivered by 10:00 a.m. Eastern
time on the Change of Control Redemption Date.


 


A-4





















 


(d)         Any prepayment pursuant
to this paragraph shall be made pursuant to the provisions of Sections 3.01
through 3.06 of the Indenture.


 


6.                                       Mandatory Redemption.


 


(a)                                                          If
the Spin-Off is not consummated on or prior to 11:59 pm, New York City time, on
November 30, 2004 (the “Special Mandatory
Redemption Event”), then the Company shall notify the Trustee of
such Special Mandatory Redemption Event, and the Company shall redeem all of
the Notes (the “Special Mandatory Redemption”)
within two Business Days of the date of the Special Mandatory Redemption Event,
at a redemption price equal to 100% of the principal amount of the Notes, plus
accrued and unpaid interest, if any, to but not including the redemption date
(the “Special Mandatory Redemption Payment”)
(subject to the right of Holders of record on the relevant Regular Record Date to
receive interest due on the relevant Interest Payment Date).  The Company shall commence the Special
Mandatory Redemption by sending or causing to be sent on the Business Day
following such Special Mandatory Redemption Event, by first class mail, with a
copy to the Trustee, a notice of redemption to each Holder at such Holder’s
registered address appearing in the Security Register, which notice shall
state:


 


(1)          that
the Special Mandatory Redemption is being made pursuant to this paragraph;


 


(2)          the redemption date and
the Special Mandatory Redemption Payment; provided, however, that the redemption date shall be the second
Business Day after the Special Mandatory Redemption Event (the “Special Mandatory Redemption Date”);


 


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


 


(4)          that the Notes must be
surrendered to the Paying Agent to collect the Special Mandatory Redemption
Payment; and


 


(5)          that,
unless the Company defaults in making such Special Mandatory Redemption
Payment, interest on the Notes shall cease to accrue on and after the Special
Mandatory Redemption Date.


 


(b)  Except as set forth in this paragraph, the
Company shall not be required to make any other mandatory redemption or sinking
fund payments with respect to, or offer to purchase, the Notes.


 


7.                                       Repurchase at Option of Holder.


 


(a)  Upon the occurrence of a
Change of Control, the Company shall within 30 days following any Change of
Control, make an offer (the “Change of Control Offer”)
pursuant to the procedures set forth in Section 3.09 of the Indenture.  Each Holder shall have the right to accept
such offer and require the Company to repurchase all or any part (equal to
$1,000 or an integral multiple of $1,000) of such Holder’s Notes pursuant to
the Change of Control Offer at a purchase price (the “Change
of Control Purchase Price”) equal to 101% of the aggregate
principal amount thereof, plus accrued and unpaid interest, including Special
Interest, if any, to but not including the Purchase Date (subject to the right
of Holders of record on the relevant Regular Record Date to receive interest
due on the relevant Interest Payment Date).


 


(b)  When the aggregate amount of Excess Proceeds
from Asset Sales exceeds $15.0 million, the Company shall make an offer to
repurchase (the “Prepayment Offer”) the Notes,
which offer shall be in the amount of the Allocable Excess Proceeds (rounded to
the nearest $1,000), on a pro rata basis
according to principal amount, at a purchase price equal to 100% of the
principal amount thereof, plus accrued and unpaid interest, including Special
Interest, if any, to but not including the repurchase date (subject to the
right of Holders of record on the relevant Regular Record Date to receive
interest due on the relevant Interest Payment Date), in accordance with the procedures
(including prorating in the event of oversubscription) set forth in this
Indenture.  To the extent that any
portion of the amount of Net Available Cash remains after compliance with the
preceding sentence and provided that
all Holders have been given the opportunity to tender their Notes for
repurchase in accordance with the


 


A-5





















 


Indenture, the Company or such Restricted Subsidiary
may use such remaining amount for any purpose permitted by the Indenture, and
the amount of Excess Proceeds will be reset to zero.


 


8.                                       Notice of Redemption.  Notice
of redemption shall be mailed at least 30 days but not more than 60 days before
the redemption date to each Holder whose Notes are to be redeemed at its
registered address.  Notes in denominations larger than $1,000 may be
redeemed in part but only in whole multiples of $1,000, unless all of the Notes
held by a Holder are to be redeemed.  On and after the redemption date
interest ceases to accrue on Notes or portions thereof called for redemption.


 


9.                                       Denominations, Transfer, Exchange. 
The Notes are in registered form without coupons in denominations of $1,000 and
integral multiples of $1,000.  [This Note shall represent the aggregate
principal amount of outstanding Notes from time to time endorsed hereon and the
aggregate principal amount of Notes represented hereby may from time to time be
reduced or increased, as appropriate, to reflect exchanges and redemptions.](1)
The transfer of Notes may be registered and Notes may be exchanged as provided
in the Indenture.  The Registrar and the Trustee may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents
and the Company may require a Holder to pay any taxes and fees required by law
or permitted by the Indenture.  The Company need not exchange or register
the transfer of any Note or portion of a Note selected for redemption, except
for the unredeemed portion of any Note being redeemed in part.  Also, the
Company need not exchange or register the transfer of any Notes for a period of
15 days before a selection of Notes to be redeemed or during the period between
a record date and the corresponding Interest Payment Date.


 


10.                                 Persons Deemed Owners.  The
registered Holder of a Note may be treated as its owner for all purposes.


 


11.                                 Amendment, Supplement and Waiver. 
Subject to certain exceptions, the Company and the Trustee may amend or
supplement the Indenture or the Notes with the consent of the Holders of a
majority in aggregate principal amount of the Notes, including Additional
Notes, if any, then outstanding voting as a single class (including consents
obtained in connection with a purchase of or tender offer or exchange offer for
the Notes), and, subject to Sections 6.04 and 6.07 of the Indenture, any
existing Default or Event of Default (except a continuing Default or Event of
Default (i) in the payment of principal, premium, if any, or interest,
including Special Interest, if any, on, the Notes and (ii) in respect of a
covenant or provision which under the Indenture cannot be amended without the
consent of each Holder) or compliance with any provision of the Indenture or
the Notes may be waived with the consent of the Holders of a majority in
aggregate principal amount of the Notes, including Additional Notes, if any,
then outstanding voting as a single class (including consents obtained in
connection with a purchase of or tender offer or exchange offer for the
Notes).  Without the consent of any
Holder, the Company and the Trustee may amend or supplement the Indenture or
the Notes to cure any ambiguity, omission, defect or inconsistency, to provide
for the assumption by a Surviving Person of the obligations of the Company
under the Indenture, to provide for uncertificated Notes in addition to or in
place of certificated Notes, to add additional Guarantees with respect to the
Notes or release Subsidiary Guarantors from Subsidiary Guaranties as provided
or permitted by the terms of the Indenture, to secure the Notes, to add to the covenants
of the Company for the benefit of the Holders of the Notes or to surrender any
right or power conferred upon the Company, to make any change that does not
adversely affect the rights of any Holder, to comply with any requirement of
the Commission in connection with the qualification of the Indenture under the
TIA or to provide for the issuance of Additional Notes.


 


12.                                 Defaults and Remedies.  Each of
the following is an Event of Default under the Indenture:  (i) failure to make the payment of any interest
or Special Interest, if any, on the Notes when the same becomes due and
payable, and such failure continues for a period of 30 days; (ii) failure
to make the payment of any principal of, or premium, if any, on, any of the
Notes when the same becomes due and payable at its Stated Maturity, upon
acceleration, redemption, optional redemption, required repurchase or
otherwise; (iii) failure by the Company or any Subsidiary Guarantor to
comply with Section 5.01 of the Indenture; (iv) failure by the Company to
comply with its obligations under Section 4.18 (other than a failure to
purchase Notes) or under Section 4.10, Section 4.11, Section 4.12, Section 4.13
(other than a failure to purchase the Notes), Section 4.14, Section 4.15 or
Section 4.19 of the Indenture, and such failure continues for 30 days after
written notice is given to the Company as provided below;


 










(1) Include only if a global note.


 


A-6





















 


(v) failure by the Company or any Subsidiary Guarantor
to comply with any other covenant or agreement in the Notes or in the Indenture
(other than a failure that is the subject of the foregoing clause (i),
(ii), (iii) or (iv)), and such failure continues for 60 days after written
notice is given to the Company as provided below; (vi) a default under any
Debt by the Company or any Restricted Subsidiary that results in acceleration
of the maturity of such Debt, or failure to pay any such Debt at maturity, in
an aggregate amount greater than $10.0 million or its foreign currency
equivalent at the time; (vii) any judgment or judgments for the payment of
money in an aggregate amount in excess of $7.0 million (or its foreign
currency equivalent at the time) that shall be rendered against the Company or
any Restricted Subsidiary and that shall not be waived, satisfied or discharged
for any period of 60 consecutive days during which a stay of enforcement shall
not be in effect; (viii) certain events of
bankruptcy, insolvency or reorganization affecting the Company or any of its
Significant Subsidiaries; and (ix) any Subsidiary Guaranty of a
Subsidiary Guarantor that is a Significant Subsidiary ceases, or the Subsidiary
Guaranties of any group of Subsidiary Guarantors that, when taken together,
would constitute a Significant Subsidiary, cease, to be in full force and
effect (other than in accordance with the terms of such Subsidiary Guaranty) or
any Subsidiary Guarantor that is a Significant Subsidiary denies or disaffirms
its obligations under its Subsidiary Guaranty, or any group of Subsidiary
Guarantors that, when taken together, would constitute a Significant
Subsidiary, deny or disaffirm their obligations under their Subsidiary
Guaranties.


 


If any Event of Default
occurs and is continuing, the Trustee or the Holders of at least 25% in
aggregate principal amount of the then outstanding Notes may declare all the
Notes to be due and payable. 
Notwithstanding the foregoing, in the case of an Event of Default
arising from certain events of bankruptcy or insolvency described in the
Indenture, all outstanding Notes shall become due and payable without further
action or notice.  Holders may not
enforce the Indenture or the Notes except as provided in the Indenture.  Subject to certain limitations, if an Event
of Default occurs and is continuing, Holders of a majority in aggregate
principal amount of the then outstanding Notes may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from Holders notice of
any continuing Default or Event of Default (except a Default or Event of
Default relating to the payment of principal, premium, if any, or interest or
Special Interest) if it determines that withholding notice is in their
interest. The Holders of a majority in aggregate principal amount of the Notes
then outstanding by notice to the Trustee may on behalf of the Holders of all
of the Notes waive any existing Default or Event of Default and its
consequences under the Indenture except a continuing Default or Event of
Default (i) in the payment of the principal of, premium, if any, or interest,
on the Notes and (ii) in respect of a covenant or provision which under the
Indenture cannot be modified or amended without the consent of the Holder of
each Note affected by such modification or amendment.  The Company is required to deliver to the
Trustee annually a statement regarding compliance with the Indenture, and the
Company is required upon becoming aware of any Default or Event of Default, to
deliver to the Trustee a statement specifying such Default or Event of Default.


 


13.                                 Trustee Dealings with Company.  Subject to certain limitations, the Trustee
in its individual or any other capacity may become the owner or pledgee of
Notes and may otherwise deal with the Company or any Affiliate of the Company
with the same rights it would have if it were not Trustee.


 


14.                                 No Recourse Against Others.  No
past, present or future director, officer, employee, incorporator or
stockholder of the Company or of any Subsidiary Guarantor, as such, shall have
any liability for any obligations of the Company or any Subsidiary Guarantor
under the Indenture, the Notes, the Guarantees or for any claim based on, in
respect of, or by reason of, such obligations or their creation.  Each
Holder by accepting a Note waives and releases all such liability.  The waiver and release are part of the
consideration for issuance of the Notes. 
The waiver and release may not be effective to waive or release the
liabilities under the U.S. federal securities laws.


 


15.                                 Authentication.  This Note shall
not be valid until authenticated by the manual signature of the Trustee or an
authenticating agent.


 


16.                                 Abbreviations.  Customary
abbreviations may be used in the name of a Holder or an assignee, such
as:  TEN COM (= tenants in common), TEN ENT (= tenants by the 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).


 


17.                                 Additional Rights of Holders of Restricted Global
Notes and Restricted Definitive Notes.  In addition to the rights provided to Holders
of Notes under the Indenture, Holders of Restricted Global Notes and


 


A-7





















 


Restricted
Definitive Notes that are Initial Notes shall have all the rights set forth in
the Registration Rights Agreement, dated as of November 30, 2004, between the Company and the
parties named on the signature pages thereto or, in the case of Additional
Notes, Holders of Restricted Global Notes and Restricted Definitive Notes shall
have the rights set forth in one or more registration rights agreement, if any,
among the Company and the other parties thereto, relating to rights given by
the Company to the purchasers of any Additional Notes.


 


18.                                 CUSIP Numbers.  Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Notes and has directed the Trustee to
use CUSIP numbers in notices of redemption as a convenience to Holders.  No representation is made as to the accuracy
of such numbers either as printed on the Notes or as contained in any notice of
redemption and reliance may be placed only on the other identification numbers
placed thereon.


 


The Company shall furnish
to any Holder upon written request and without charge a copy of the
Indenture.  Requests may be made to:


 


Neenah Paper, Inc.


Preston Ridge III


3460 Preston Ridge Road,
Suite 600


Alpharetta, Georgia 30005


Attention: General
Counsel


 


19.                                 Governing Law.  The internal law of the State of New York
shall govern and be used to construe this Note without giving effect to
applicable principals of conflicts of law to the extent that the application of
the laws of another jurisdiction would be required thereby.


 


A-8





















 


Option of Holder to Elect Purchase


 


If you want to elect to have this Note purchased by
the Company pursuant to Section 4.13 or 4.18 of the Indenture, check the box
below:


 


o                                    Section
4.13


 


o                                    Section
4.18


 


If you want to elect to have only part of the Note
purchased by the Company pursuant to Section 4.13 or Section 4.18 of the
Indenture, state the amount you elect to have purchased:  $                                   


 


	
  Date:

  	
   

  	
   

  	
  Your Signature:

  	
   

  	
   

  
	
   

  	
  (Sign exactly as your name appears on the Note)

  
	
   

  	
   

  
	
   

  	
  Tax Identification No.:
  

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SIGNATURE GUARANTEE:

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Signatures must be
  guaranteed by an “eligible guarantor institution” meeting the requirements of
  the Registrar, which requirements include membership or participation in the
  Security Transfer Agent Medallion Program (“STAMP”) or such other “signature
  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





















 


Assignment
Form


 


To assign this Note, fill in the form below:


 


(I) or (we) assign and transfer this Note to


 


	
   

  
	
  (Insert assignee’s
  social security or other tax I.D. no.)

  
	
   

  
	
   

  
	
   

  
	
   

  
	
  (Print or type
  assignee’s name, address and zip code)

  
	
   

  
	
  and irrevocably appoint

  	
   

  
	
  as agent to transfer this Note on the books of the
  Company.  The agent may substitute another to act for him.

  
	
   

  
	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Your Signature:

  	
   

  	
   

  
	
   

  	
  (Sign exactly as your
  name appears on the face of this Note)

  
	
   

  	
   

  
	
   

  	
  Signature Guarantee:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Signatures must be
  guaranteed by an “eligible guarantor institution” meeting the requirements of
  the Registrar, which requirements include membership or participation in the
  Security Transfer Agent Medallion Program (“STAMP”) or such other “signature
  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-10





















 


SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE


 


The following exchanges of a part of this Global Note
for an interest in another Global Note or for a Definitive Note, or exchanges
of a part of another Global Note or Definitive Note for an interest in this
Global Note, have been made:


 


	
  Date of Exchange

  	
   

  	
  Amount of

  decrease in

  Principal Amount

  of this Global Note

  	
   

  	
  Amount of increase

  in Principal Amount

  of this Global Note

  	
   

  	
  Principal Amount

  of this Global Note

  following such

  decrease (or

  increase)

  	
   

  	
  Signature of

  authorized signatory

  of Trustee or

  Note Custodian

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 





















 


EXHIBIT
B


 


FORM
OF CERTIFICATE OF TRANSFER


 


Neenah Paper, Inc.


Preston Ridge III


3460 Preston Ridge Road, Suite 600


Alpharetta, Georgia 30005


Attention:  General Counsel


Telecopier No.: (678) 518-3283


 


The Bank of New York Trust Company, N.A.


100 Ashford Center North 

Suite 520

Atlanta, Georgia 30338


Attention: Corporate Trust Department


Telecopier No.: (770) 698-5195


 


Re:                               73/8%
SENIOR NOTES DUE 2014


 


Reference is hereby made
to the Indenture, dated as of November 30, 2004 (the “Indenture”),
among Neenah Paper, Inc., as issuer (the “Company”), the
Subsidiary Guarantors party thereto and The Bank of New York Trust Company,
N.A., as trustee.  Capitalized terms used
but not defined herein shall have the meanings given to them in the Indenture.


 


                                        ,
(the “Transferor”) owns and proposes to
transfer the Note[s] or interest in such Note[s] specified in Annex A hereto,
in the principal amount of $                  
in such Note[s] or interests (the “Transfer”), to                                 
(the “Transferee”), as further specified in
Annex A hereto.  In connection with the
Transfer, the Transferor hereby certifies that:


 


[CHECK
ALL THAT APPLY]


 


1.  o  Check if Transferee will
take delivery of a beneficial interest in the 144A Global Note or a Definitive
Note Pursuant to Rule 144A. 
The Transfer is being effected pursuant to and in accordance with Rule
144A under the United States Securities Act of 1933, as amended (the “Securities Act”), and, accordingly, the Transferor hereby
further certifies that the beneficial interest or Definitive Note is being
transferred to a Person that the Transferor reasonably believed and believes is
purchasing the beneficial interest or Definitive Note for its own account, or
for one or more accounts with respect to which such Person exercises sole
investment discretion, and such Person and each such account is a “qualified
institutional buyer” within the meaning of Rule 144A in a transaction meeting
the requirements of Rule 144A and such Transfer is in compliance with any
applicable blue sky securities laws of any state of the United States.  Upon consummation of the proposed Transfer in
accordance with the terms of the Indenture, the transferred beneficial interest
or Definitive Note will be subject to the restrictions on transfer enumerated
in the Private Placement Legend printed on the 144A Global Note and/or the
Definitive Note and in the Indenture and the Securities Act.


 


2.  o  Check if Transferee will
take delivery of a beneficial interest in the Regulation S Global Note or a
Definitive Note pursuant to Regulation S.  The Transfer is being effected pursuant to
and in accordance with Rule 903 or Rule 904 under the Securities Act and,
accordingly, the Transferor hereby further certifies that (i) the Transfer is
not being made to a Person in the United States and (x) at the time the buy
order was originated, the Transferee was outside the United States or such
Transferor and any Person acting on its behalf reasonably believed and believes
that the Transferee was outside the United States or (y) the transaction was
executed in, on or through the facilities of a designated offshore securities
market and neither such Transferor nor any Person acting on its behalf knows
that the transaction was prearranged with a buyer in the United States, (ii) no
directed selling efforts have been made in contravention of the requirements of
Rule 903(b) or Rule 904(a) of Regulation S under the Securities Act, (iii) the
transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act and (iv) if the proposed transfer is being
made prior to the expiration of the


 


B-1





















 


Distribution Compliance Period, the transfer is not
being made to a U.S. Person or for the account or benefit of a U.S. Person
(other than an Initial Purchaser).  Upon
consummation of the proposed transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will be
subject to the restrictions on Transfer enumerated in the Private Placement
Legend printed on the Regulation S Global Note, the Temporary Regulation S
Global Note and/or the Definitive Note and in the Indenture and the Securities
Act.


 


3.  o  Check and complete if
Transferee will take delivery of a beneficial interest in the IAI Global Note
or a Definitive Note pursuant to any provision of the Securities Act other than
Rule 144A or Regulation S. 
The Transfer is being effected in compliance with the transfer
restrictions applicable to beneficial interests in Restricted Global Notes and
Restricted Definitive Notes and pursuant to and in accordance with the
Securities Act and any applicable blue sky securities laws of any state of the
United States, and accordingly the Transferor hereby further certifies that
(check one):


 


(a)                                  o  such Transfer is being effected pursuant to
and in accordance with Rule 144 under the Securities Act;


 


or


 


(b)                                 o  such Transfer is being effected to the
Company or a subsidiary thereof;


 


or


 


(c)                                  o  such Transfer is being effected pursuant to
an effective registration statement under the Securities Act and in compliance
with the prospectus delivery requirements of the Securities Act;


 


or


 


(d)                                 o  such Transfer is being effected to an
Institutional Accredited Investor and pursuant to an exemption from the
registration requirements of the Securities Act other than Rule 144A, Rule 144
or Rule 904, and the Transferor hereby further certifies that it has not
engaged in any general solicitation within the meaning of Regulation D under
the Securities Act and the Transfer complies with the transfer restrictions applicable
to beneficial interests in a Restricted Global Note or Restricted Definitive
Notes and the requirements of the exemption claimed, which certification is
supported by (1) a certificate executed by the Transferee in the form of
Exhibit D to the Indenture and (2) if such Transfer is in respect of a
principal amount of Notes at the time of transfer of less than $250,000, an
Opinion of Counsel provided by the Transferor or the Transferee (a copy of
which the Transferor has attached to this certification), to the effect that
such Transfer is in compliance with the Securities Act.  Upon consummation of the proposed transfer in
accordance with the terms of the Indenture, the transferred beneficial interest
or Definitive Note will be subject to the restrictions on transfer enumerated
in the Private Placement Legend printed on the IAI Global Note and/or the
Definitive Notes and in the Indenture and the Securities Act.


 


B-2





















 


4.  o  Check if Transferee will
take delivery of a beneficial interest in an Unrestricted Global Note or of an
Unrestricted Definitive Note.


 


(a)  o  Check if Transfer is
pursuant to Rule 144.  (i) The
Transfer is being effected pursuant to and in accordance with Rule 144 under
the Securities Act and in compliance with the transfer restrictions contained
in the Indenture and any applicable blue sky securities laws of any state of
the United States and (ii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. 
Upon consummation of the proposed Transfer in accordance with the terms
of the Indenture, the transferred beneficial interest or Definitive Note will
no longer be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Global Notes, on Restricted
Definitive Notes and in the Indenture.


 


(b)  o  Check if Transfer is
Pursuant to Regulation S.  (i)
The Transfer is being effected pursuant to and in accordance with Rule 903 or
Rule 904 under the Securities Act and in compliance with the transfer
restrictions contained in the Indenture and any applicable blue sky securities
laws of any state of the United States and (ii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act.  Upon consummation of the proposed Transfer in
accordance with the terms of the Indenture, the transferred beneficial interest
or Definitive Note will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes, on Restricted Definitive Notes and in the Indenture.


 


(c)  o  Check if Transfer is
Pursuant to Other Exemption. 
(i) The Transfer is being effected pursuant to and in compliance with an
exemption from the registration requirements of the Securities Act other than
Rule 144, Rule 903 or Rule 904 and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of any
State of the United States and (ii) the restrictions on transfer contained in
the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. 
Upon consummation of the proposed Transfer in accordance with the terms
of the Indenture, the transferred beneficial interest or Definitive Note will
not be subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the Restricted Global Notes or Restricted Definitive Notes
and in the Indenture.


 


This certificate and the
statements contained herein are made for your benefit and the benefit of the
Company.


 


	
   

  	
   

  	
   

  
	
   

  	
  [Insert Name of
  Transferor]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  Dated: 

  	
   

  	
   

  
						



 


B-3





















 


ANNEX A TO CERTIFICATE OF
TRANSFER


 


1.                                       The
Transferor owns and proposes to transfer the following:


 


[CHECK ONE OF (a) OR (b)]


 


(a)                                  o   a beneficial interest in the:


 


  (i)                               o   144A Global Note (CUSIP                   ),
or


 


  (ii)                            o   Regulation S Global Note (CUSIP                   ),
or


 


  (iii)                         o   IAI Global Note (CUSIP                   );
or


 


(b)                                 o   a Restricted Definitive Note.


 


2.                                       After
the Transfer the Transferee will hold:


 


[CHECK ONE OF (a), (b) OR
(c)]


 


(a)                                  o   a beneficial interest in the:


 


  (i)                               o   144A Global Note (CUSIP                   ),
or


 


  (ii)                            o   Regulation S Global Note (CUSIP                   ),
or


 


  (iii)                         o   IAI Global Note (CUSIP                   );
or


 


  (iv)                        o   Unrestricted Global Note (CUSIP                   );
or


 


(b)                                 o   a Restricted Definitive Note; or


 


(c)                                  o   an Unrestricted Definitive Note,


 


in accordance with the terms of the Indenture.


 


B-4





















 


EXHIBIT
C


 


FORM
OF CERTIFICATE OF EXCHANGE


 


Neenah Paper, Inc.


Preston Ridge III


3460 Preston Ridge Road,
Suite 600


Alpharetta, Georgia 30005


Attention: General
Counsel


Telecopier No.: (678)
518-3283


 


The Bank of New York
Trust Company, N.A.


100 Ashford Center North 

Suite 520

Atlanta, Georgia 30338


Attention: Corporate
Trust Department


Telecopier No.: (770)
698-5195


 


Re:                                                  73/8
% SENIOR NOTES DUE 2014


 


Reference is hereby made
to the Indenture, dated as of November 30, 2004 (the “Indenture”),
among Neenah Paper, Inc., as issuer (the “Company”), the
Subsidiary Guarantors party thereto and The Bank of New York Trust Company,
N.A., as trustee.  Capitalized terms used
but not defined herein shall have the meanings given to them in the Indenture.


 


                          ,
(the “Owner”) owns and proposes to exchange
the Note[s] or interest in such Note[s] specified herein, in the principal
amount of $            
in such Note[s] or interests (the “Exchange”).  In connection with the Exchange, the Owner
hereby certifies that:


 


1.                                       Exchange of Restricted Definitive Notes or
Beneficial Interests in a Restricted Global Note for Unrestricted Definitive
Notes or Beneficial Interests in an Unrestricted Global Note


 


(a)  o  Check if Exchange is from
beneficial interest in a Restricted Global Note to beneficial interest in an
Unrestricted Global Note.  In
connection with the Exchange of the Owner’s beneficial interest in a Restricted
Global Note for a beneficial interest in an Unrestricted Global Note in an
equal principal amount, the Owner hereby certifies (i) the beneficial interest
is being acquired for the Owner’s own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Note and pursuant to and in accordance with
the United States Securities Act of 1933, as amended (the “Securities
Act”), (iii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest in an
Unrestricted Global Note is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.


 


(b)  o  Check if Exchange is from
beneficial interest in a Restricted Global Note to Unrestricted Definitive Note.  In connection with the Exchange of the Owner’s
beneficial interest in a Restricted Global Note for an Unrestricted Definitive
Note, the Owner hereby certifies (i) the Unrestricted Definitive Note is being
acquired for the Owner’s own account without transfer, (ii) such Exchange has
been effected in compliance with the transfer restrictions applicable to the
Restricted Global Note and pursuant to and in accordance with the Securities
Act, (iii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act and (iv) the Unrestricted Definitive Note is being acquired
in compliance with any applicable blue sky securities laws of any state of the
United States.


 


(c)  o  Check if Exchange is from
Restricted Definitive Note to beneficial interest in an Unrestricted Global
Note.  In connection with the
Owner’s Exchange of a Restricted Definitive Note for a beneficial interest in
an Unrestricted Global Note, the Owner hereby certifies (i) the beneficial
interest is being acquired for the Owner’s own account without transfer, (ii)
such Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Definitive Notes and pursuant to and in accordance
with the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the beneficial interest is
being acquired in compliance with any applicable blue sky securities laws of
any state of the United States.


 


C-1





















 


(d)  o  Check if Exchange is from
Restricted Definitive Note to Unrestricted Definitive Note.  In connection with the Owner’s Exchange of a
Restricted Definitive Note for an Unrestricted Definitive Note, the Owner
hereby certifies (i) the Unrestricted Definitive Note is being acquired for the
Owner’s own account without transfer, (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to Restricted Definitive
Notes and pursuant to and in accordance with the Securities Act, (iii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act
and (iv) the Unrestricted Definitive Note is being acquired in compliance with
any applicable blue sky securities laws of any state of the United States.


 


2.                                       Exchange of Restricted Definitive Notes or
Beneficial Interests in Restricted Global Notes for Restricted Definitive Notes
or Beneficial Interests in Restricted Global Notes


 


(a)  o  Check if Exchange is from
beneficial interest in a Restricted Global Note to Restricted Definitive Note.  In connection with the Exchange of the Owner’s
beneficial interest in a Restricted Global Note for a Restricted Definitive
Note with an equal principal amount, the Owner hereby certifies that the Restricted
Definitive Note is being acquired for the Owner’s own account without
transfer.  Upon consummation of the
proposed Exchange in accordance with the terms of the Indenture, the Restricted
Definitive Note issued will continue to be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted
Definitive Note and in the Indenture and the Securities Act.


 


(b)  o  Check if Exchange is from
Restricted Definitive Note to beneficial interest in a Restricted Global Note.  In connection with the Exchange of the Owner’s
Restricted Definitive Note for a beneficial interest in the [CIRCLE ONE] 144A
Global Note, Regulation S Global Note, IAI Global Note with an equal principal
amount, the Owner hereby certifies (i) the beneficial interest is being
acquired for the Owner’s own account without transfer and (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Definitive Note and pursuant to and in accordance
with the Securities Act, and in compliance with any applicable blue sky
securities laws of any state of the United States.  Upon consummation of the proposed Exchange in
accordance with the terms of the Indenture, the beneficial interest issued will
be subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the relevant Restricted Global Note and in the Indenture and
the Securities Act.


 


C-2





















 


This certificate and the
statements contained herein are made for your benefit and the benefit of the
Company.


 


	
   

  	
   

  	
   

  
	
   

  	
  [Insert Name of Transferor]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  Dated:

  	
   

  	
   

  
						



 


C-3





















 


EXHIBIT
D


 


FORM
OF CERTIFICATE FROM

ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR


 


Neenah Paper, Inc.


Preston Ridge III


3460 Preston Ridge Road,
Suite 600


Alpharetta, Georgia 30005


Attention: General
Counsel


Telecopier No.: (678)
518-3283


 


The Bank of New York
Trust Company, N.A.


100 Ashford Center North 

Suite 520

Atlanta, Georgia 30338


Attention: Corporate
Trust Department


Telecopier No.: (678)
698-5195


 


Re:                               73/8
% SENIOR NOTES DUE 2014


 


Reference is hereby made
to the Indenture, dated as of November 30, 2004 (the “Indenture”),
among Neenah Paper, Inc., as issuer (the “Company”), the
Subsidiary Guarantors party thereto and The Bank of New York Trust Company,
N.A., as trustee.  Capitalized terms used
but not defined herein shall have the meanings given to them in the Indenture.


 


In connection with our proposed
purchase of $            
aggregate principal amount of:


 


(a)  o  a beneficial interest in a Global Note, or


 


(b)  o  a Definitive Note,


 


we
confirm that:


 


1.                                       We
understand that any subsequent transfer of the Notes or any interest therein is
subject to certain restrictions and conditions set forth in the Indenture and
the undersigned agrees to be bound by, and not to resell, pledge or otherwise
transfer the Notes or any interest therein except in compliance with, such
restrictions and conditions and the United States Securities Act of 1933, as
amended (the “Securities Act”).


 


2.                                       We
understand that the offer and sale of the Notes have not been registered under
the Securities Act, and that the Notes and any interest therein may not be
offered or sold except as permitted in the following sentence.  We agree, on our own behalf and on behalf of
any accounts for which we are acting as hereinafter stated, that if we should
sell the Notes or any interest therein, we will do so only (A) to the
Company or any subsidiary thereof, (B) in accordance with Rule 144A under
the Securities Act to a “qualified institutional buyer” (as defined therein),
(C) to an institutional “accredited investor” (as defined below) that,
prior to such transfer, furnishes (or has furnished on its behalf by a U.S.
broker-dealer) to you and to the Company a signed letter substantially in the
form of this letter and, if such transfer is in respect of a principal amount
of Notes, at the time of transfer of less than $250,000, an Opinion of Counsel
in form reasonably acceptable to the Company to the effect that such transfer
is in compliance with the Securities Act, (D) outside the United States in
accordance with Rule 904 of Regulation S under the Securities Act,
(E) pursuant to the provisions of Rule 144(k) under the Securities Act or
(F) pursuant to an effective registration statement under the Securities
Act, and we further agree to provide to any Person purchasing the Definitive
Note or beneficial interest in a Global Note from us in a transaction meeting
the requirements of clauses (A) through (E) of this paragraph a notice advising
such purchaser that resales thereof are restricted as stated herein.


 


3.                                       We
understand that, on any proposed resale of the Notes or beneficial interest
therein, we will be required to furnish to you and the Company such
certifications, legal opinions and other information as you and the Company may
reasonably require to confirm that the proposed sale complies with the
foregoing restrictions.  We further
understand that the Notes purchased by us will bear a legend to the foregoing
effect.


 


D-1





















 


4.                                       We
are an institutional “accredited investor” (as defined in Rule 501(a)(1), (2),
(3) or (7) of Regulation D under the Securities Act) and have such knowledge
and experience in financial and business matters as to be capable of evaluating
the merits and risks of our investment in the Notes, and we and any accounts
for which we are acting are each able to bear the economic risk of our or its
investment.  We have had access to such
financial and other information and have been afforded the opportunity to ask
such questions of representatives of the Company and receive answers thereto,
as we deem necessary in connection with our decision to purchase the Notes.


 


5.                                       We
are acquiring the Notes or beneficial interest therein purchased by us for our
own account or for one or more accounts (each of which is an institutional “accredited
investor”) as to each of which we exercise sole investment discretion and are
not acquiring the Notes with a view to any distribution thereof in a
transaction that would violate the Securities Act of the securities laws of any
state of the United States or any other applicable jurisdiction.


 


You and the Company are
entitled to rely upon this letter and are irrevocably authorized to produce
this letter or a copy hereof to any interested party in any administrative or
legal proceedings or official inquiry with respect to the matters covered
hereby.  This letter shall be governed
by, and construed in accordance with, the laws of the State of New York.


 


	
   

  	
   

  	
   

  
	
   

  	
  [Insert Name of Accredited Investor]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
   

  
						



 


 


D-2





















 


EXHIBIT
E


 


FORM
OF NOTATION OF SUBSIDIARY GUARANTY


 


For value received, each
Subsidiary Guarantor (which term includes any successor Person under the
Indenture), jointly and severally, unconditionally guarantees, to the extent
set forth in the Indenture and subject to the provisions in the Indenture,
dated as of November 30, 2004 (the “Indenture”),
among Neenah Paper, Inc., as issuer (the “Company”), the
Subsidiary Guarantors listed on the signature pages thereto and The Bank of New
York Trust Company, N.A., as trustee (the “Trustee”), (a)
the due and punctual payment of the principal of, premium, if any, and interest
and Special Interest, if any, on, the Notes, subject to any applicable grace
period, whether at maturity, by acceleration, redemption or otherwise, the due and
punctual payment of interest on overdue principal and premium, if any, and, to
the extent permitted by law, interest on the Notes, and the due and punctual
performance of all other obligations of the Company to the Holders or the
Trustee all in accordance with the terms of the Indenture and (b) in case of
any extension of time of payment or renewal of any Notes or any of such other
obligations, that the same will be promptly paid in full when due or performed
in accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration, redemption or otherwise.  The obligations of the Subsidiary Guarantors
to the Holders of Notes and to the Trustee pursuant to the Subsidiary Guaranty
and the Indenture are expressly set forth in Article 10 of the Indenture
and reference is hereby made to the Indenture for the precise terms of the
Subsidiary Guaranty.  [The effectiveness
of this Subsidiary Guaranty with respect to the U.S. Subsidiary Guarantors
shall be expressly subject to the provisions of Section 10.03(f) of the
Indenture.]  This Subsidiary Guaranty is
subject to release as and to the extent set forth in Sections 8.02, 8.03 and
10.05 of the Indenture.  Each Holder of a
Note, by accepting the same agrees to and shall be bound by such
provisions.  Capitalized terms used
herein and not defined are used herein as so defined in the Indenture.


 


 


	
   

  	
  [NAME OF
  SUBSIDIARY GUARANTORS]

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   Name:

  
	
   

  	
   

  	
   Title:

  



 





















 


EXHIBIT
F


 


OFFICERS’
CERTIFICATE PURSUANT TO SECTION 10.03 OF THE INDENTURE


 


The undersigned, [               ],
the duly qualified and elected [Title] of Neenah Paper, Inc., a Delaware
corporation (the “Company”),
and [                 ],
the duly qualified and elected [Title] of the Company, pursuant to Section [    ]
of that certain Indenture, dated as of November [30], 2004 (the “Indenture”), among the Company, the
Company’s direct and indirect subsidiaries set forth on the signature page
thereto (the “Guarantors”) and The Bank of
New York Trust Company, N.A., as trustee (the “Trustee”),
do hereby certify to the Trustee, on behalf of the Company as follows:


 


1.                                       The
U.S. Subsidiary Stock Contribution has taken place.


 


2.                                       The
Guarantees of the Notes by the U.S. Subsidiary Guarantors, pursuant to Section [    ]
of the Indenture, have become effective.


 


Capitalized terms used
herein and not otherwise defined herein shall have the meanings set forth in
the Indenture.


 


[Remainder of Page
Intentionally Left Blank]


 


F-1





















 


IN WITNESS WHEREOF, the
undersigned have duly executed this Officers’ Certificate as of the [   ] day of November, 2004.


 


	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


F-2





















 


TABLE OF CONTENTS


 


	
  ARTICLE 1.    DEFINITIONS AND INCORPORATION BY
  REFERENCE

  	
   

  
	
   

  	
   

  
	
  Section 1.01.

  	
  Definitions

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 1.02.

  	
  Other
  Definitions

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 1.03.

  	
  Incorporation
  by Reference of Trust Indenture Act

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 1.04.

  	
  Rules
  of Construction

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2.    THE NOTES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.01.

  	
  Form
  and Dating

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.02.

  	
  Execution
  and Authentication

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.03.

  	
  Registrar
  and Paying Agent

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.04.

  	
  Paying
  Agent to Hold Money in Trust

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.05.

  	
  Holder
  Lists

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.06.

  	
  Transfer
  and Exchange

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.07.

  	
  Replacement
  Notes

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.08.

  	
  Outstanding
  Notes

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.09.

  	
  Treasury
  Notes

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.10.

  	
  Temporary
  Notes

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.11.

  	
  Cancellation

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.12.

  	
  Payment
  of Interest; Defaulted Interest.

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.13.

  	
  CUSIP
  or ISIN Numbers

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.14.

  	
  Special
  Interest

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.15.

  	
  Issuance
  of Additional Notes

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.16.

  	
  Record
  Date

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3.    REDEMPTION AND PREPAYMENT

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.01.

  	
  Notices
  to Trustee

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.02.

  	
  Selection
  of Notes to Be Redeemed

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.03.

  	
  Notice
  of Redemption

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.04.

  	
  Effect
  of Notice of Redemption

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.05.

  	
  Deposit
  of Redemption Price

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.06.

  	
  Notes
  Redeemed in Part

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.07.

  	
  Optional
  Redemption

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.08.

  	
  Mandatory
  Redemption

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.09.

  	
  Offer
  To Purchase

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4.    COVENANTS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 4.01.

  	
  Payment
  of Notes

  	
   

  



 


i





















 


	
  Section 4.02.

  	
  Maintenance
  of Office or Agency

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 4.03.

  	
  SEC
  Reports

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 4.04.

  	
  Compliance
  Certificate

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 4.05.

  	
  Taxes

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 4.06.

  	
  Stay,
  Extension and Usury Laws

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 4.07.

  	
  Corporate
  Existence

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 4.08.

  	
  Payments
  for Consents

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 4.09.

  	
  Covenant
  Suspension

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 4.10.

  	
  Limitation
  on Debt.

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 4.11.

  	
  Limitation
  on Restricted Payments

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 4.12.

  	
  Limitation
  on Liens

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 4.13.

  	
  Limitation
  on Asset Sales

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 4.14.

  	
  Limitation
  on Restrictions on Distributions from Restricted Subsidiaries

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 4.15.

  	
  Limitation
  on Transactions with Affiliates

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 4.16.

  	
  Limitation
  on Sale and Leaseback Transactions

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 4.17.

  	
  Designation
  of Restricted and Unrestricted Subsidiaries

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 4.18.

  	
  Repurchase
  at the Option of Holders Upon a Change of Control

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 4.19.

  	
  Future
  Subsidiary Guarantors.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5.    SUCCESSORS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 5.01.

  	
  Merger,
  Consolidation and Sale of Property

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 5.02.

  	
  Successor
  Corporation Substituted

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6.    DEFAULTS AND REMEDIES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 6.01.

  	
  Events
  of Default

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 6.02.

  	
  Acceleration

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 6.03.

  	
  Other
  Remedies

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 6.04.

  	
  Waiver
  of Defaults

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 6.05.

  	
  Control
  by Majority

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 6.06.

  	
  Limitation
  on Suits

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 6.07.

  	
  Rights
  of Holders to Receive Payment

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 6.08.

  	
  Collection
  Suit by Trustee

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 6.09.

  	
  Trustee
  May File Proofs of Claim

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 6.10.

  	
  Priorities

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 6.11.

  	
  Undertaking
  for Costs

  	
   

  



 


ii





















 


	
  ARTICLE 7.    TRUSTEE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.01.

  	
  Duties
  of Trustee

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.02.

  	
  Rights
  of Trustee

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.03.

  	
  Individual
  Rights of Trustee

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.04.

  	
  Trustee’s
  Disclaimer

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.05.

  	
  Notice
  of Defaults

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.06.

  	
  Reports
  by Trustee to Holders

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.07.

  	
  Compensation
  and Indemnity

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.08.

  	
  Replacement
  of Trustee

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.09.

  	
  Successor
  Trustee by Merger, etc.

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.10.

  	
  Eligibility;
  Disqualification

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.11.

  	
  Preferential
  Collection of Claims Against Company

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 8.    LEGAL DEFEASANCE AND COVENANT DEFEASANCE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 8.01.

  	
  Option
  to Effect Legal Defeasance or Covenant Defeasance

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 8.02.

  	
  Legal
  Defeasance and Discharge

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 8.03.

  	
  Covenant
  Defeasance

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 8.04.

  	
  Conditions
  to Legal or Covenant Defeasance

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 8.05.

  	
  Deposited
  Cash and U.S. Government Obligations to be Held in Trust; Other Miscellaneous
  Provisions

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 8.06.

  	
  Repayment
  to the Company

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 8.07.

  	
  Reinstatement

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9.    AMENDMENT, SUPPLEMENT AND WAIVER

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.01.

  	
  Without
  Consent of Holders of Notes

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.02.

  	
  With
  Consent of Holders of Notes

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.03.

  	
  Compliance
  with Trust Indenture Act

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.04.

  	
  Revocation
  and Effect of Consents

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.05.

  	
  Notation
  on or Exchange of Notes

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.06.

  	
  Trustee
  to Sign Amendments, etc.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10.    SUBSIDIARY GUARANTIES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 10.01.

  	
  Subsidiary
  Guaranty

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 10.02.

  	
  Limitation
  on Subsidiary Guarantor Liability

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 10.03.

  	
  Execution,
  Delivery and Effectiveness of Subsidiary Guaranties

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 10.04.

  	
  Subsidiary
  Guarantors May Consolidate, etc., on Certain Terms

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 10.05.

  	
  Releases
  Following Merger, Consolidation or Sale of Assets, Etc.

  	
   

  



 


iii





















 


	
  ARTICLE 11.    SATISFACTION AND DISCHARGE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 11.01.

  	
  Satisfaction
  and Discharge

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 11.02.

  	
  Deposited
  Cash to be Held in Trust; Other Miscellaneous Provisions

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 11.03.

  	
  Repayment
  to Company

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 12.    MISCELLANEOUS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 12.01.

  	
  Trust
  Indenture Act Controls

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 12.02.

  	
  Notices

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 12.03.

  	
  Communication
  by Holders of Notes with Other Holders of Notes

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 12.04.

  	
  Certificate
  and Opinion as to Conditions Precedent

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 12.05.

  	
  Statements
  Required in Certificate or Opinion

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 12.06.

  	
  Rules
  by Trustee and Agents

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 12.07.

  	
  No
  Personal Liability of Directors, Officers, Employees and Stockholders

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 12.08.

  	
  Governing
  Law

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 12.09.

  	
  No
  Adverse Interpretation of Other Agreements

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 12.10.

  	
  Successors

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 12.11.

  	
  Severability

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 12.12.

  	
  Consent
  to Jurisdiction and Service of Process

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 12.13.

  	
  Counterpart
  Originals

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 12.14.

  	
  Table
  of Contents, Headings, etc.

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 12.15.

  	
  Qualification
  of this Indenture.

  	
   

  



 


iv





















 


CROSS-REFERENCE TABLE


 


	
  TIA
  Section

  Reference

  	
   

  	
  Indenture

  Section

  
	
   

  	
   

  	
   

  
	
  310(a)(1)

  	
   

  	
  7.10

  
	
  (a)(2)

  	
   

  	
  7.10

  
	
  (a)(3)

  	
   

  	
  N.A.

  
	
  (a)(4)

  	
   

  	
  N.A.

  
	
  (a)(5)

  	
   

  	
  7.10

  
	
  (b)

  	
   

  	
  7.10

  
	
  (c)

  	
   

  	
  N.A.

  
	
  311(a)

  	
   

  	
  7.11

  
	
  (b)

  	
   

  	
  7.11

  
	
  (c)

  	
   

  	
  N.A.

  
	
  312(a)

  	
   

  	
  2.05

  
	
  (b)

  	
   

  	
  12.03

  
	
  (c)

  	
   

  	
  12.03

  
	
  313(a)

  	
   

  	
  7.06

  
	
  (b)(1)

  	
   

  	
  N.A.

  
	
  (b)(2)

  	
   

  	
  7.06

  
	
  (c)

  	
   

  	
  7.06, 12.02

  
	
  (d)

  	
   

  	
  7.06

  
	
  314(a)

  	
   

  	
  4.04, 12.05

  
	
  (b)

  	
   

  	
  N.A.

  
	
  (c)(1)

  	
   

  	
  N.A.

  
	
  (c)(2)

  	
   

  	
  N.A

  
	
  (c)(3)

  	
   

  	
  N.A.

  
	
  (d)

  	
   

  	
  N.A.

  
	
  (e)

  	
   

  	
  12.05

  
	
  315(a)

  	
   

  	
  7.02

  
	
  (b)

  	
   

  	
  7.02

  
	
  (c)

  	
   

  	
  7.02

  
	
  (d)

  	
   

  	
  7.02

  
	
  (e)

  	
   

  	
  7.02

  
	
  316(a) (last
  sentence)

  	
   

  	
  N.A.

  
	
  (a)(1)(A)

  	
   

  	
  N.A.

  
	
  (a)(1)(B)

  	
   

  	
  N.A.

  
	
  (a)(2)

  	
   

  	
  N.A.

  
	
  (b)

  	
   

  	
  N.A.

  
	
  317(a)(1)

  	
   

  	
  N.A.

  
	
  (a)(2)

  	
   

  	
  N.A.

  
	
  (b)

  	
   

  	
  N.A.

  
	
  318(a)

  	
   

  	
  N.A.

  



 










N.A. means Not
Applicable.


 


Note:  This Cross-Reference Table shall not, for any
purpose, be deemed to be part of this Indenture.


 


v