exv4w2






Exhibit 4.2




 





TREEHOUSE FOODS, INC., as Issuer

THE GUARANTORS PARTY HERETO, as Guarantors

AND

WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Trustee



 



7.750% SENIOR NOTES DUE 2018

FIRST SUPPLEMENTAL INDENTURE DATED AS OF

March 2, 2010

TO THE INDENTURE DATED AS OF

March 2, 2010




 








 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page
	ARTICLE 1	 	 	 	 
	 
	 	 	 	 	 	 
	
ESTABLISHMENT; DEFINITIONS AND INCORPORATION BY REFERENCE	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 1.01

	 	Establishment
	 	 	1	 
	SECTION 1.02

	 	Certain Definitions
	 	 	3	 
	SECTION 1.03

	 	Other Definitions
	 	 	29	 
	SECTION 1.04

	 	Incorporation by Reference of Trust Indenture Act
	 	 	30	 
	SECTION 1.05

	 	Rules of Construction
	 	 	31	 
	 
	 	 	 	 	 	 
	ARTICLE 2	 	 	 	 
	 
	 	 	 	 	 	 
	THE NOTES	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 2.01

	 	Form and Dating
	 	 	31	 
	SECTION 2.02

	 	Registrar and Paying Agent
	 	 	32	 
	SECTION 2.03

	 	Additional Notes
	 	 	32	 
	 
	 	 	 	 	 	 
	ARTICLE 3	 	 	 	 
	 
	 	 	 	 	 	 
	REDEMPTION AND PREPAYMENT	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 3.01

	 	Notices to Trustee
	 	 	33	 
	SECTION 3.02

	 	Optional Redemption
	 	 	33	 
	SECTION 3.03

	 	Mandatory Redemption
	 	 	34	 
	SECTION 3.04

	 	Repurchase at the Option of Holders
	 	 	34	 
	 
	 	 	 	 	 	 
	ARTICLE 4	 	 	 	 
	 
	 	 	 	 	 	 
	COVENANTS	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 4.01

	 	Payment of Notes
	 	 	36	 
	SECTION 4.02

	 	Maintenance of Office or Agency
	 	 	36	 
	SECTION 4.03

	 	Reports
	 	 	37	 
	SECTION 4.04

	 	Limitation on Layering Indebtedness
	 	 	38	 
	SECTION 4.05

	 	Limitation on Sale and Leaseback Transactions
	 	 	38	 
	SECTION 4.06

	 	Payments for Consent
	 	 	39	 
	SECTION 4.07

	 	Restricted Payments
	 	 	39	 
	SECTION 4.08

	 	Dividend and Other Payment Restrictions
Affecting Subsidiaries
	 	 	42	 
	SECTION 4.09

	 	Incurrence of Indebtedness and Issuance of Preferred Stock
	 	 	44	 
	SECTION 4.10

	 	Limitation on Asset Sales
	 	 	48	 
	SECTION 4.11

	 	Transactions with Affiliates
	 	 	51	 






i









 






	 	 	 	 	 	 	 
	 	 	 	 	Page
	SECTION 4.12

	 	Liens
	 	 	53	 
	SECTION 4.13

	 	Offer to Repurchase upon Change of Control
	 	 	53	 
	SECTION 4.14

	 	Corporate Existence
	 	 	54	 
	SECTION 4.15

	 	Additional Subsidiary Guarantees
	 	 	54	 
	SECTION 4.16

	 	Compliance Certificate
	 	 	54	 
	SECTION 4.17

	 	Covenant Suspension
	 	 	54	 
	 
	 	 	 	 	 	 
	ARTICLE 5	 	 	 	 
	 
	 	 	 	 	 	 
	SUCCESSORS	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 5.01

	 	Merger, Consolidation or Sale of Assets
	 	 	55	 
	SECTION 5.02

	 	Successor Corporation Substituted
	 	 	57	 
	 
	 	 	 	 	 	 
	ARTICLE 6	 	 	 	 
	 
	 	 	 	 	 	 
	defaults and remedies	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 6.01

	 	Events of Default and Remedies
	 	 	58	 
	 
	 	 	 	 	 	 
	ARTICLE 7	 	 	 	 
	 
	 	 	 	 	 	 
	LEGAL DEFEASANCE AND COVENANT DEFEASANCE	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 7.01

	 	Option to Effect Legal Defeasance or Covenant Defeasance
	 	 	60	 
	SECTION 7.02

	 	Legal Defeasance and Discharge
	 	 	60	 
	SECTION 7.03

	 	Covenant Defeasance
	 	 	61	 
	SECTION 7.04

	 	Conditions to Legal or Covenant Defeasance
	 	 	61	 
	SECTION 7.05

	 	Deposited Money and Governmental Securities to Be
Held in Trust;
Other Miscellaneous Provisions
	 	 	62	 
	SECTION 7.06

	 	Reinstatement
	 	 	63	 
	 
	 	 	 	 	 	 
	ARTICLE 8	 	 	 	 
	 
	 	 	 	 	 	 
	SATISFACTION AND DISCHARGE	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 8.01

	 	Satisfaction and Discharge of Indenture
	 	 	63	 
	 
	 	 	 	 	 	 
	ARTICLE 9	 	 	 	 
	 
	 	 	 	 	 	 
	AMENDMENT, SUPPLEMENT AND WAIVER	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 9.01

	 	Without Consent of Holders of Notes
	 	 	64	 
	SECTION 9.02

	 	With Consent of Holders of Notes
	 	 	65	 






ii









 






	 	 	 	 	 	 	 
	 	 	 	 	Page
	ARTICLE 10	 	 	 	 
	 
	 	 	 	 	 	 
	GUARANTEES	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 10.01

	 	Guarantees
	 	 	67	 
	SECTION 10.02

	 	Release of Guarantor
	 	 	67	 
	 
	 	 	 	 	 	 
	ARTICLE 11	 	 	 	 
	 
	 	 	 	 	 	 
	MISCELLANEOUS	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 11.01

	 	Trust Indenture Act Controls
	 	 	67	 
	SECTION 11.02

	 	Notices
	 	 	67	 
	SECTION 11.03

	 	Communication by Holders of Notes with Other Holders of Notes
	 	 	68	 
	SECTION 11.04

	 	Certificate and Opinion as to Conditions Precedent
	 	 	69	 
	SECTION 11.05

	 	Statements Required in Certificate or Opinion
	 	 	69	 
	SECTION 11.06

	 	Rules by Trustee and Agents
	 	 	69	 
	SECTION 11.07

	 	No Personal Liability of Directors, Officers, Employees and
Stockholders
	 	 	69	 
	SECTION 11.08

	 	Governing Law
	 	 	70	 
	SECTION 11.09

	 	No Adverse Interpretation of Other Agreements
	 	 	70	 
	SECTION 11.10

	 	Successors
	 	 	70	 
	SECTION 11.11

	 	Severability
	 	 	70	 
	SECTION 11.12

	 	Counterpart Originals
	 	 	70	 
	SECTION 11.13

	 	Table of Contents, Headings, Etc.
	 	 	70	 
	SECTION 11.14

	 	Force Majeure
	 	 	70	 
	SECTION 11.15

	 	Note Purchases by Company and Affiliates
	 	 	71	 






iii









 






TREEHOUSE FOODS, INC.

RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939

AND FIRST SUPPLEMENTAL INDENTURE DATED AS OF MARCH 2,2010




	 	 	 	 	 
	Section of	 	 	 	 
	Trust Indenture	 	 	 	Section(s) of
	Act of 1939	 	 	 	First Supplemental Indenture
	§ 310
	 	(a)(1)	 	N.A.
	 
	 	(a)(2)	 	N.A.
	 
	 	(a)(3)	 	N.A.
	 
	 	(a)(4)	 	N.A.
	 
	 	(a)(5)	 	N.A.
	 
	 	(b)	 	N.A.
	 
	 	(c)	 	N.A.
	§ 311
	 	(a)	 	N.A.
	 
	 	(b)	 	N.A.
	 
	 	(c)	 	N.A.
	§ 312
	 	(a)	 	N.A.
	 
	 	(b)	 	11.03
	 
	 	(c)	 	11.03
	§ 313
	 	(a)	 	N.A.
	 
	 	(b)(1)	 	N.A.
	 
	 	(b)(2)	 	N.A.
	 
	 	(c)	 	11.02
	 
	 	(d)	 	N.A.
	§ 314
	 	(a)	 	4.03
	 
	 	(b)	 	N.A.
	 
	 	(c)(1)	 	11.04
	 
	 	(c)(2)	 	11.04
	 
	 	(c)(3)	 	N.A.
	 
	 	(d)	 	N.A.
	 
	 	(e)	 	11.05
	§ 315
	 	(a)	 	N.A.
	 
	 	(b)	 	N.A.
	 
	 	(c)	 	N.A.
	 
	 	(d)	 	N.A.
	 
	 	(e)	 	N.A.
	§ 316
	 	(a)(1)(A)	 	N.A.
	 
	 	(a)(1)(B)	 	N.A.
	 
	 	(a)(2)	 	N.A.
	 
	 	(a) (last sentence)	 	N.A.
	 
	 	(b)	 	N A
	 
	 	(b)	 	N.A.
	§ 317
	 	(a)(1)	 	N.A.
	 
	 	(a)(2)	 	N.A.
	 
	 	(b)	 	N.A.
	§ 318
	 	(a)	 	11.01
	 
	 	(b)	 	N.A.
	 
	 	(c)	 	N.A.








 




			
	Note:	 	This reconciliation and tie shall not, for any purpose, be deemed to be a part of this
Supplemental Indenture.




iv









 









          This FIRST SUPPLEMENTAL INDENTURE, dated as of March 2, 2010 (this “Supplemental
Indenture”), is by and among TreeHouse Foods, Inc., a Delaware corporation (such corporation and
any successor as defined in the Base Indenture and herein, the “Company”), the Guarantors (as
defined below) and Wells Fargo Bank, National Association, a national banking association, as
trustee (such institution and any successor as defined in the Base Indenture, the “Trustee”).



WITNESSETH:



          WHEREAS, the Company and the Guarantors have previously executed and delivered an indenture,
dated as of March 2, 2010 (the “Base Indenture”), with the Trustee providing for the issuance from
time to time of one or more series of the Company’s senior debt securities;


          WHEREAS, Section 9.01 of the Base Indenture provides that the Company, the Guarantors and the
Trustee may enter into an indenture supplemental to the Base Indenture to establish the form or
terms of Securities of any series as permitted by Section 3.01 and Section 11.01 of the Base
Indenture;


          WHEREAS, the Company and the Guarantors are entering into this Supplemental Indenture to
establish the form and terms of the Company’s 7.750% Senior Notes due 2018 (the “Notes”; which
defined term shall include the Initial Notes and any Additional Notes) and related Subsidiary
Guarantees;


          WHEREAS, the Base Indenture is incorporated herein by reference and the Base Indenture, as
supplemented by this Supplemental Indenture, is herein called this “Indenture”; and


          WHEREAS, all conditions necessary to authorize the execution and delivery of this Supplemental
Indenture and to make it a valid and binding obligation of the Company and the Guarantors have been
done or performed.


          NOW, THEREFORE, in consideration of the agreements and obligations set forth herein and for
other good and valuable consideration, the sufficiency of which is hereby acknowledged, the
Company, the Guarantors and the Trustee agree as follows for the benefit of each other and for the
equal and ratable benefit of the Holders of the Notes.



ARTICLE 1




ESTABLISHMENT; DEFINITIONS AND INCORPORATION BY REFERENCE


          SECTION 1.01 Establishment.



               (a) There is hereby established a new series of Securities to be issued under this
Supplemental Indenture, to be designated as the Company’s “7.750% Senior Notes due 2018”.



1









 





               (b) There are to be authenticated and delivered on the date hereof $400,000,000 aggregate
principal amount of the Notes. Additional Notes may be issued under this Supplemental Indenture
after the date hereof in accordance with Section 2.03.



               (c) The Notes shall be issued substantially in the form of Exhibit A hereto.



               (d) Each Note shall be dated the date of authentication thereof and shall bear interest from
the date of original issuance thereof or from the most recent date to which interest has been paid
or duly provided for.



               (e) With respect to the Notes (and any Subsidiary Guarantees endorsed thereon) only, the Base
Indenture shall be supplemented pursuant to Sections 201, 301 and 901 thereof to establish the
terms of the Notes (and any Subsidiary Guarantees endorsed thereon) as set forth in this
Supplemental Indenture, including as follows:




               (i) the form and terms of the securities representing the Notes required to be
established pursuant to Article TWO of the Base Indenture shall be established in accordance
with Article 2 of this Supplemental Indenture;




               (ii) the provisions of Article FOUR of the Base Indenture are deleted and replaced in
their entirety by the provisions of Article 8 hereof;




               (iii) the provisions of Article EIGHT of the Base Indenture are deleted and replaced in
their entirety by the provisions of Article 5 hereof;




               (iv) the provisions of Article TWELVE of the Base Indenture shall not be applicable to
the Notes;




               (v) the provisions of Article THIRTEEN of the Base Indenture shall be applicable to the
Notes as specified in Section 10.01 of this Supplemental Indenture;




               (vi) the provisions of Article FIFTEEN of the Base Indenture are deleted and replaced
in their entirety by the provisions of Article 7 hereof;




               (vii) the provisions of Section 704 of the Base Indenture are deleted and replaced in
their entirety by the provisions of Section 4.03 hereof;




               (viii) the provisions of Section 901 of the Base Indenture are deleted and replaced in
their entirety by the provisions of Section 9.01 hereof;




               (ix) the provisions of Section 902 of the Base Indenture are deleted and replaced in
their entirety by the provisions of Section 9.02 hereof;




               (x) that payment by wire transfer of immediately available funds will be required with
respect to principal of and interest and premium on all Global Notes, subject to Applicable
Procedures, and all other Notes the Holders of which shall have



2









 






provided wire transfer instructions no later than 30 days immediately preceding the
relevant due date for payment (or such other date as the Trustee may accept in its
judgment), to the Company or the Paying Agent.



To the extent that the provisions of this Supplemental Indenture (including those referred to in
clauses (i), (ii), (iii), (iv) and (vi) immediately above) conflict with any provision of the Base
Indenture, the provisions of this Supplemental Indenture shall govern and be controlling solely
with respect to the Notes (and any Subsidiary Guarantees endorsed thereon).




               (f) Unless otherwise expressly specified, references in this Supplemental Indenture to
specific Article numbers or Section numbers refer to Articles and Sections contained in this
Supplemental Indenture, and not the Base Indenture or any other document.



          SECTION 1.02 Certain Definitions.



               (a) All capitalized terms used herein and not otherwise defined below shall have the meanings
ascribed thereto in the Base Indenture.



               (b) Set forth below are certain defined terms used in this Supplemental Indenture and to the
extent that a term is defined both herein and in the Base Indenture, unless otherwise specified,
the definition in this Supplemental Indenture shall govern solely with respect to the Notes (and
any Subsidiary Guarantee endorsed thereon).


          “Acquired Debt” means, with respect to any specified Person:


          (1) Indebtedness of any other Person existing at the time such other Person is merged with or
into or became a Subsidiary of such specified Person, whether or not such Indebtedness is incurred
in connection with, or in contemplation of, such other Person merging with or into, or becoming a
Subsidiary of, such specified Person; and


          (2) Indebtedness secured by a Lien encumbering any asset acquired by such specified Person.


          “Additional Notes” means, subject to the Company’s compliance with Section 4.09, 7.750% Senior
Notes due 2018 issued from time to time after the Issue Date under the terms of this Supplemental
Indenture (other than pursuant to Sections 304, 305 or 306 of the Base Indenture or Section 3.04(d)
of this Supplemental Indenture).


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



3









 







          “Applicable Premium” means, with respect to a Note at any Redemption Date, the greater of (i)
1.0% of the principal amount of such Note and (ii) the excess of (A) the present value at such time
of (1) the Redemption Price of such Note at March 1, 2014 (such Redemption Price being set forth in
the table in Section 3.02) plus (2) all required interest payments due on such Note (excluding
accrued and unpaid interest to such Redemption Date) through March 1, 2014, computed using a
discount rate equal to the Treasury Rate plus 50 basis points, over (B) the principal amount of
such Note.


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


          “Asset Sale” means:


          (1) the sale, lease, conveyance or other disposition of any assets or rights, including by
means of a Sale and Leaseback Transaction, but other than sales of inventory in the ordinary course
of business consistent with past practices; provided that the sale, lease, conveyance or other
disposition of all or substantially all of the assets of the Company and its Restricted
Subsidiaries taken as a whole will be governed by the provisions of Section 4.13 and/or Article 5
and not by the provisions of Section 4.10; and


          (2) the issuance or sale of Equity Interests in any of the Company’s Restricted Subsidiaries
or the sale of Equity Interests in any of its Subsidiaries.


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


          (1) any single transaction or series of related transactions that: (a) involves assets having
an aggregate fair market value of less than $15.0 million; or (b) results in aggregate net proceeds
to the Company and its Subsidiaries of less than $15.0 million;


          (2) a transfer of assets (a) between or among the Company and its Wholly Owned Restricted
Subsidiaries, (b) by a Restricted Subsidiary to the Company or any of its Wholly Owned Restricted
Subsidiaries or (c) by the Company or any of its Wholly Owned Restricted Subsidiaries to any
Restricted Subsidiary of the Company that is not a Wholly Owned Restricted Subsidiary if, in the
case of this clause (c), the Company or the Wholly Owned Restricted Subsidiary, as the case may be,
either retains title to or ownership of the assets being transferred or receives consideration at
the time of such transfer at least equal to the fair market value of the transferred assets;


          (3) an issuance of Equity Interests by a Restricted Subsidiary to the Company or to a Wholly
Owned Restricted Subsidiary;


          (4) any Permitted Investment or any Restricted Payment that is permitted by Section 4.07;



4









 







          (5) a disposition of products, services, equipment or inventory in the ordinary course of
business or a disposition of obsolete equipment or equipment that is no longer useful in the
conduct of the business of the Company and its Restricted Subsidiaries and that is disposed of in
the ordinary course of business;


          (6) the grant of Liens (or foreclosure thereon) permitted by Section 4.12;


          (7) the sale or transfer of Receivables Program Assets or rights therein in connection with a
Qualified Receivables Transaction;


          (8) the surrender or waiver of contractual rights or the settlement, release or surrender of
contract, tort or other litigation claims in the ordinary course of business;


          (9) the sale or other disposition of cash or Cash Equivalents in the ordinary course of
business;


          (10) grants of licenses or sublicenses of intellectual property of the Company or any of its
Restricted Subsidiaries to the extent not materially interfering with the business of the Company
and its Restricted Subsidiaries;


          (11) any exchange of like-kind property pursuant to Section 1031 of the Code that are used or
useful in a Permitted Business;


          (12) the lease, assignment or sublease of any real or personal property in the ordinary course
of business; and


          (13) the abandonment of intellectual property rights in the ordinary course of business, which
in the reasonable good faith determination of the Company or any of its Restricted Subsidiaries are
not material to the conduct of the business of the Company and its Restricted Subsidiaries taken as
a whole.


          “Attributable Indebtedness,” when used with respect to any Sale and Leaseback Transaction,
means, as at the time of determination, the present value of the total Obligations of the lessee
for rental payments during the remaining term of the lease included in any such Sale and Leaseback
Transaction, including any period for which such lease has been extended or may, at the option of
the lessor, be extended. Such present value shall be calculated using a discount rate equal to the
rate implicit in such transaction, determined in accordance with GAAP; provided, however, that if
such Sale and Leaseback Transaction results in a Capital Lease Obligation, the amount of
Indebtedness represented thereby will be determined in accordance with the definition of “Capital
Lease Obligation.”


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



5









 







          “Board of Directors” means:


          (1) with respect to a corporation, the Board of Directors of the corporation or any committee
thereof duly authorized to act on behalf of such board;


          (2) with respect to a partnership, the Board of Directors of the general partner of the
partnership;


          (3) with respect to a limited liability company, the managing member or members or any
controlling committee of managing members or managers thereof; and


          (4) with respect to any other Person, the board or committee of such Person serving a similar
function.


          “Board Resolution” means, with respect to any Person, a copy of a resolution certified by the
Secretary or an Assistant Secretary of such Person to have been duly adopted by the Board of
Directors of such Person and to be in full force and effect on the date of such certification, and
delivered to the Trustee.


          “Borrowing Base” means as of any date, an amount, determined on a consolidated basis and in
accordance with GAAP, equal to the sum of (i) 70% of the aggregate book value of inventory plus
(ii) 85% of the aggregate book value of all accounts receivable (net of bad debt reserves) of the
Company and its Restricted Subsidiaries. To the extent that information is not available as to the
amount of inventory or accounts receivable as of a specific date, the Company shall use the most
recent available information for purposes of calculating the Borrowing Base.


          “Business Day” means a day other than a Saturday, Sunday or other day on which banking
institutions in New York are authorized or required by law to close.


          “Capital Lease Obligation” means, at the time any determination thereof is to be made, the
amount of the liability in respect of a capital lease that would at that time be required to be
capitalized on a balance sheet in accordance with GAAP, 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 prepaid by the lessee without payment of a penalty.


          “Capital Stock” means:


          (1) in the case of a corporation, corporate stock;


          (2) in the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate stock;


          (3) in the case of a partnership or limited liability company, partnership or membership
interests (whether general or limited); and


          (4) any other interest or participation that confers on a Person the right to receive a share
of the profits and losses of, or distributions of assets of, the issuing Person.



6









 







          “Cash Equivalents” means:




     (a) marketable direct Obligations issued by, or unconditionally guaranteed by,
the United States government or issued by any agency thereof and backed by the full
faith and credit of the United States, in each case maturing within one year from
the date of acquisition;




     (b) certificates of deposit, time deposits, eurodollar time deposits or
overnight bank deposits having maturities of one year or less from the date of
acquisition issued by any commercial bank organized under the laws of the United
States or any state thereof having combined capital and surplus of not less than
$500,000,000 and a Thomson Bank Watch Rating of “B” or better;




     (c) commercial paper of an issuer rated at least A-1 by S&P or P-1 by Moody’s,
or carrying an equivalent rating by a nationally recognized rating agency, if both
of the two named rating agencies cease publishing ratings of commercial paper
issuers generally, and maturing within one year from the date of acquisition;




     (d) repurchase obligations of any commercial bank satisfying the requirements
of clause (b) of this definition, having a term of not more than 7 days, with
respect to securities of the type described in clause (a) of this definition;




     (e) securities with maturities of one year or less from the date of acquisition
issued or fully Guaranteed by any state, commonwealth or territory of the United
States, by any political subdivision or taxing authority of any such state,
commonwealth or territory, the securities of which state, commonwealth, territory,
political subdivision or taxing authority (as the case may be) are rated at least A
by S&P or A by Moody’s; or




     (f) money market mutual or similar funds that invest at least 95% of their
assets in securities satisfying the requirements of clauses (a) through (e) of this
definition.




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


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


          (2) the adoption of a plan relating to the liquidation or dissolution of the Company;


          (3) the consummation of any transaction (including, without limitation, any merger or
consolidation) the result of which is that any “person” (as defined above) becomes the Beneficial
Owner, directly or indirectly, of 50% or more of the Voting Stock of the Company, measured by
voting power rather than number of shares;



7









 







          (4) the first day on which a majority of the members of the Board of Directors of the Company
are not Continuing Directors; or


          (5) the Company consolidates or merges with or into another Person, other than a merger or
consolidation of the Company in which the holders of the Voting Stock of the Company outstanding
immediately prior to the consolidation or merger hold, directly or indirectly, at least a majority
of the Voting Stock of the surviving corporation immediately after such consolidation or merger.


          “Common Stock” means with respect to any Person, any and all shares, interests or other
participations in, and other equivalents (however designated and whether voting or nonvoting) of
such Person’s common stock whether or not outstanding on the Issue Date, and includes, without
limitation, all series and classes of such common stock.


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


          (1) an amount equal to any extraordinary loss plus any net loss realized by such Person or any
of its Restricted Subsidiaries in connection with an Asset Sale, to the extent losses were deducted
in computing such Consolidated Net Income; plus


          (2) provision for taxes based on income or profits of such Person and its Restricted
Subsidiaries for such period, to the extent that such provision for taxes was deducted in computing
such Consolidated Net Income; plus


          (3) consolidated net interest expense of such Person and its Restricted Subsidiaries for such
period whether paid or accrued and whether or not capitalized (including, without limitation,
amortization of original issue discount, non-cash interest payments, the interest component of any
deferred payment Obligations, the interest component of all payments associated with Capital Lease
Obligations, imputed interest with respect to Attributable Indebtedness, commissions, discounts and
other fees and charges incurred in respect of letter of credit or bankers’ acceptance financings,
and net payments, if any, pursuant to Hedging Obligations but excluding amortization of debt
issuance costs), to the extent that any such expense was deducted in computing such Consolidated
Net Income; plus


          (4) depreciation, amortization (including amortization of goodwill and other intangibles but
excluding amortization of prepaid cash expenses that were paid in a prior period) and other
non-cash expenses (excluding any such non-cash expense to the extent that it represents an accrual
of or reserve for cash expenses in any future period or amortization of a prepaid cash expense that
was paid in a prior period and any non-cash charge, expense or loss relating to write-offs,
write-downs or reserves with respect to accounts receivable or inventory) of such Person and its
Restricted Subsidiaries for such period to the extent that such depreciation, amortization and
other non-cash expenses were deducted in computing such Consolidated Net Income; minus


          (5) non-cash items increasing such Consolidated Net Income for such period, other than items
that were accrued in the ordinary course of business, in each case, on a



8









 








consolidated basis for such Person and its Restricted Subsidiaries and determined in
accordance with GAAP.



          Notwithstanding the preceding, the provision for taxes based on the income or profits of, and
the depreciation and amortization and other non-cash charges of, a Restricted Subsidiary of the
Company shall be added to Consolidated Net Income to compute Consolidated Cash Flow of the Company
only to the extent that 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 that Subsidiary or its
stockholders.


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


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


          (2) the Net Income of any Restricted Subsidiary shall be excluded to the extent that the
declaration or payment of dividends or similar distributions by that Restricted Subsidiary of that
Net Income is not at the date of determination permitted without any prior governmental approval
(that has not been obtained) or, directly or indirectly, by operation of the terms of its charter
or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to that Restricted Subsidiary or its stockholders;


          (3) the Net Income (but not loss) of any Unrestricted Subsidiary shall be excluded, whether or
not distributed to the specified Person or one of its Subsidiaries;


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


          (5) income or loss attributable to discontinued operations (including, without limitation,
operations disposed of during such period whether or not such operations were classified as
discontinued) shall be excluded; and


          (6) in the case of a successor to the referent Person by consolidation or merger or as a
transferee of the referent Person’s assets, any earnings of the successor corporation prior to such
consolidation, merger or transfer of assets shall be excluded.


          “Consolidated Senior Secured Leverage Ratio” means, with respect to any specified Person for
any period, the ratio of (i) Senior Secured Indebtedness of such Person on such date to (ii)
Consolidated Cash Flow for the period of four consecutive fiscal quarters for which internal
financial statements are available immediately preceding the date of the event for which the
calculation of the Consolidated Senior Secured Leverage Ratio is made (for purposes of this
definition, the “Consolidated Senior Secured Leverage Ratio Reference Period”). In the



9









 








event that the specified Person or any of its Restricted Subsidiaries incurs, assumes,
Guarantees, repays, repurchase, redeems, defeases or otherwise discharges any Indebtedness (other
than ordinary working capital borrowings) or issues, repurchases or redeems preferred stock, in
each case, subsequent to the commencement of the Consolidated Senior Secured Leverage Ratio
Reference Period and on or prior to the date of the event for which the calculation of the
Consolidated Senior Secured Leverage Ratio is made (for purposes of this definition, the
“Consolidated Senior Secured Leverage Ratio Calculation Date”), then the Consolidated Senior
Secured Leverage Ratio shall be calculated giving pro forma effect to such incurrence, assumption,
Guarantee, repayment, repurchase, redemption, defeasance or other discharge of Indebtedness, or
such issuance, repurchase or redemption of preferred stock, and the use of the proceeds therefrom,
as if the same had occurred at the beginning of the Consolidated Senior Secured Leverage Ratio
Reference Period.




          In addition, for purposes of calculating the Consolidated Senior Secured Leverage Ratio:


          (1) acquisitions that have been made by the specified Person or any of its Restricted
Subsidiaries, including through mergers or consolidations, or any Person or any of its Restricted
Subsidiaries acquired by the specified Person or any of its Restricted Subsidiaries, and including
any related financing transactions, after the first day of the Consolidated Senior Secured Leverage
Ratio Reference Period and on or prior to the Consolidated Senior Secured Leverage Ratio
Calculation Date shall be deemed to have occurred on the first day of the Consolidated Senior
Secured Leverage Ratio Reference Period and Consolidated Cash Flow for the Consolidated Senior
Secured Leverage Ratio Reference Period shall be calculated without giving effect to clause (3) of
the proviso set forth in the definition of “Consolidated Net Income”;


          (2) the Consolidated Cash Flow attributable to discontinued operations, as determined in
accordance with GAAP, shall be excluded; and


          (3) the Fixed Charges attributable to discontinued operations, as determined in accordance
with GAAP, and operations or businesses disposed of prior to the Consolidated Senior Secured
Leverage Ratio Calculation Date, shall be excluded, but only to the extent that the obligations
giving rise to such Fixed Charges will not be obligations of the specified Person or any of its
Restricted Subsidiaries following the Consolidated Senior Secured Leverage Ratio Calculation Date.


          “Consolidated Tangible Assets” means, with respect to any specified Person as of any date of
determination, the Consolidated Total Assets of such Person and its Restricted Subsidiaries on that
date minus the Intangible Assets of such Person and its Restricted Subsidiaries on that date.


          “Consolidated Total Assets” means, with respect to any specified Person as of any date of
determination, the net book value of all assets of such Person and its Restricted Subsidiaries on
such date determined on a consolidated basis in accordance with GAAP.


          “Continuing Director” means, as of any date of determination, any member of the Board of
Directors of the Company who:



10









 







          (1) was a member of such Board of Directors on the date of the Indenture; or


          (2) was nominated for election or elected to such Board of Directors with the approval of a
majority of the Continuing Directors who were members of such Board of Directors at the time of
such nomination or election.


          “Credit Agreement” means that certain Credit Agreement, dated as of June 27, 2005 (as
amended), by and among the Company and the banks and other financial institutions from time to time
parties thereto as agents and lenders, and any related notes, guarantees, collateral documents,
instruments and agreements executed in connection therewith, and in each case as amended, modified,
renewed, refunded, replaced or refinanced from time to time.


          “Credit Facility” means, with respect to the Company or any of its Restricted Subsidiaries:


          (1) the Credit Agreement; and


          (2) one or more debt facilities (which may be outstanding at the same time) or other financing
arrangements (including, without limitation, commercial paper facilities or indentures) providing
for revolving credit loans, term loans, letters of credit or other long-term indebtedness,
including any notes, mortgages, guarantees, collateral documents, instruments and agreements
executed in connection therewith, and, in each case, any amendments, supplements, modifications,
extensions, renewals, restatements or refundings thereof and any indentures or credit facilities or
commercial paper facilities that replace, refund or refinance any part of the loans, notes, other
credit facilities or commitments thereunder, including any such replacement, refunding or
refinancing facility or indenture that increases the amount permitted to be borrowed thereunder
(provided that such increase in borrowings is permitted under Section 4.09) or alters the maturity
thereof or adds Restricted Subsidiaries as additional borrowers or guarantors thereunder and
whether by the same or any other agent, lender or group of lenders.


          “Currency Protection Agreement” means any currency protection agreement entered into with one
or more financial institutions in the ordinary course of business that is designed to protect the
Person or entity entering into the agreement against fluctuations in currency exchange rates with
respect to Indebtedness incurred and not for purposes of speculation.


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


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


          “Disqualified Stock” means any Capital Stock that, by its terms (or by the terms of any
security into which it is convertible, or for which it is exchangeable, in each case at the



11









 








option of the holder thereof), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the
holder thereof, in whole or in part, on or prior to the date that is 91 days after the date on
which the Notes mature. Notwithstanding the preceding sentence, any Capital Stock that would
constitute Disqualified Stock solely because the holders thereof have the right to require the
Company to repurchase such Capital Stock upon the occurrence of a change of control or an asset
sale or as a result of the bankruptcy, insolvency or similar event of the issuer shall not
constitute Disqualified Stock if the terms of such Capital Stock provide that the Company may not
repurchase or redeem such Capital Stock pursuant to such provision unless such repurchase or
redemption complies with Section 4.07.



          “Domestic Subsidiary” means, with respect to the Company, any Restricted Subsidiary that was
formed under the laws of the United States of America or any State thereof or that Guarantees or
otherwise provides direct credit support for any Indebtedness of the Company or its Domestic
Subsidiaries.


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


          “Equity Offering” means a public or private sale for cash by the Company of its Common Stock
(other than Disqualified Stock), or options, warrants or rights with respect to its Common Stock,
other than public offerings with respect to the Company’s Common Stock, or options, warrants or
rights, registered on Form S-4 or S-8.


          “Excluded Subsidiary” means any Domestic Subsidiary as may be designated by the Company as an
“Excluded Subsidiary” pursuant to an Officers’ Certificate delivered to the Trustee; provided that
each such Subsidiary shall be an Excluded Subsidiary only if and only for so long as the
Consolidated Total Assets of such Subsidiary is less than 2.0% of the Company’s Consolidated Total
Assets.


          “Existing Indebtedness” means the Existing Senior Notes and any other Indebtedness of the
Company and its Restricted Subsidiaries (other than Indebtedness under the Credit Agreement) in
existence on the date of this Supplemental Indenture, until such amounts are repaid.


          “Existing Senior Notes” means up to $100.0 million of the Company’s 6.03% Senior Notes due
2013.


          “fair market value” means, with respect to any asset or property, the price which could be
negotiated in an arm’s-length, free market transaction, for cash, between a willing seller and a
willing and able buyer, neither of whom is under undue pressure or compulsion to complete the
transaction.


          “Fixed Charge Coverage Ratio” means, with respect to any specified Person for any period (for
purposes of this definition, the “Reference Period”), the ratio of Consolidated Cash Flow of such
Person for the Reference Period to the Fixed Charges of such Person for the Reference Period. In
the event that the specified Person or any of its Restricted Subsidiaries



12









 








incurs, assumes, Guarantees, repays, repurchases, redeems, defeases or otherwise discharges
any Indebtedness (other than ordinary working capital borrowings) or issues, repurchases or redeems
preferred stock, in each case, subsequent to the commencement of the Reference Period and on or
prior to the date of the event for which the calculation of the Fixed Charge Coverage Ratio is made
(for purposes of this definition, the “Calculation Date”), then the Fixed Charge Coverage Ratio
shall be calculated giving pro forma effect to such incurrence, assumption, Guarantee, repayment,
repurchase, redemption, defeasance or other discharge of Indebtedness, or such issuance, repurchase
or redemption of preferred stock, and the use of the proceeds therefrom, as if the same had
occurred at the beginning of the Reference Period.



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


          (1) acquisitions that have been made by the specified Person or any of its Restricted
Subsidiaries, including through mergers or consolidations, or any Person or any of its Restricted
Subsidiaries acquired by the specified Person or any of its Restricted Subsidiaries, and including
any related financing transactions, after the first day of the Reference Period and on or prior to
the Calculation Date shall be deemed to have occurred on the first day of the Reference Period and
Consolidated Cash Flow for the Reference Period shall be calculated without giving effect to clause
(3) of the proviso set forth in the definition of “Consolidated Net Income”;


          (2) the Consolidated Cash Flow attributable to discontinued operations, as determined in
accordance with GAAP, shall be excluded; and


          (3) the Fixed Charges attributable to discontinued operations, as determined in accordance
with GAAP, and operations or businesses disposed of prior to the Calculation Date, shall be
excluded, but only to the extent that the obligations giving rise to such Fixed Charges will not be
obligations of the specified Person or any of its Restricted Subsidiaries following the Calculation
Date.


          “Fixed Charges” means, with respect to any Person for any period, the sum, without
duplication, of:


          (1) the consolidated net interest expense of such Person and its Restricted Subsidiaries for
such period, whether paid or accrued, including, without limitation, amortization of original issue
discount, non-cash interest payments, the interest component of any deferred payment obligations,
the interest component of all payments associated with Capital Lease Obligations, imputed interest
with respect to Attributable Indebtedness, commissions, discounts and other fees and charges
incurred in respect of letter of credit or bankers’ acceptance financings, and net payments, if
any, pursuant to Hedging Obligations, but excluding amortization of debt issuance costs; plus


          (2) the consolidated interest of such Person and its Restricted Subsidiaries that was
capitalized during such period; plus


          (3) any interest expense on Indebtedness of another Person that is Guaranteed by such Person
or one of its Restricted Subsidiaries or secured by a Lien on assets of such Person or one of its
Restricted Subsidiaries, whether or not such Guarantee or Lien is called upon; plus



13









 







          (4) the product of (a) all dividend payments, whether or not in cash, on any series of
preferred stock of such Person or any of its Restricted Subsidiaries, other than dividend payments
on Equity Interests payable solely in Equity Interests of the Company (other than Disqualified
Stock) or to the Company or a Restricted Subsidiary of the Company, times (b) a fraction, the
numerator of which is one and the denominator of which is one minus the then current combined
federal, state and local statutory tax rate of such Person, expressed as a decimal, in each case,
on a consolidated basis and in accordance with GAAP.


          “Foreign Subsidiary” means, with respect to the Company, any Subsidiary that was not formed
under the laws of the United States of America or any state thereof.


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


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


          “Guarantors” means:


          (1) each Domestic Subsidiary of the Company on the date of this Supplemental Indenture (other
than the Excluded Subsidiaries until such Domestic Subsidiaries no longer qualify as Excluded
Subsidiaries); and


          (2) any other Subsidiary of the Company that executes a Subsidiary Guarantee and related
supplemental indenture in accordance with the provisions of this Supplemental Indenture;


and their respective successors and assigns, in each case, until such Person is released from its
Subsidiary Guarantee in accordance with the terms of the Indenture.


          “Hedging Obligations” of any Person means the obligations of such Person under swap, cap,
collar, forward purchase or similar agreements or arrangements dealing with interest rates,
currency exchange rates or commodity prices, either generally or under specific contingencies.


          “Indebtedness” means at any time (without duplication), with respect to any Person, whether
recourse is to all or a portion of the assets of such Person, or non-recourse, the following:




     (i) all indebtedness of such Person for money borrowed or for the
deferred purchase price of property, excluding any trade payables or other
current liabilities incurred in the ordinary course of business;




     (ii) all Obligations of such Person evidenced by bonds, debentures,
notes, or other similar instruments (including purchase-money obligations);



14









 






     (iii) all Obligations of such Person with respect to letters of credit,
bankers’ acceptances or similar facilities (including reimbursement
Obligations with respect thereto, except to the extent such reimbursement
Obligations relate to a trade payable) issued for the account of such
Person;




     (iv) all indebtedness created or arising under any conditional sale or
other title retention agreement with respect to property or assets acquired
by such Person (even if the rights and remedies of the seller or lender
under such agreement in the event of default are limited to repossession or
sale of such property or assets);




     (v) all Capital Lease Obligations of such Person;




     (vi) the maximum fixed redemption, repayment or other repurchase price
of Disqualified Stock in such Person at the time of determination;




     (vii) any Hedging Obligations of such Person at the time of
determination (the amount of any such Obligations to be equal to the
termination value of such agreement or arrangement giving rise to such
Obligation that would be payable by such Person at such time);




     (viii) any Attributable Indebtedness; and




     (ix) all Obligations of the types referred to in clauses (i) through
(viii) of this definition of another Person and all dividends and other
distributions of another Person, the payment of which, in either case, (A)
such Person has Guaranteed, directly or indirectly, or that is otherwise its
legal liability or which such Person has agreed to purchase or repurchase or
in respect of which such Person has agreed contingently to supply or advance
funds or (B) is secured by (or the holder of such Indebtedness or the
recipient of such dividends or other distributions has an existing right,
whether contingent or otherwise, to be secured by) any Lien upon the
property or other assets of such Person, even though such Person has not
assumed or become liable for the payment of such Indebtedness, dividends or
other distributions.


          For purposes of the foregoing:




     (a) the maximum fixed repurchase price of any Disqualified Stock that does not
have a fixed repurchase price shall be calculated in accordance with the terms of
such Disqualified Stock as if such Disqualified Stock was repurchased on any date on
which Indebtedness shall be required to be determined pursuant to this Supplemental
Indenture; provided, however, that, if such Disqualified Stock is not then permitted
to be repurchased, the repurchase price shall be the book value of such Disqualified
Stock;



15









 






     (b) the amount outstanding at any time of any Indebtedness issued with original
issue discount is the principal amount of such Indebtedness less the remaining
unamortized portion of the original issue discount of such Indebtedness at such time
as determined in conformity with GAAP, but such Indebtedness shall be deemed
incurred only as of the date of original issuance thereof;




     (c) in the case of any Indebtedness not issued with original issue discount,
the amount of any such Indebtedness outstanding as of any date will be the principal
amount of the Indebtedness together with any interest on the Indebtedness that is
more than 30 days past due;




     (d) the amount of any Indebtedness described in clause (ix)(A) above shall be
the maximum liability under any such Guarantee;




     (e) the amount of any Indebtedness described in clause (ix)(B) above shall be
the lesser of (I) the maximum amount of the Obligations so secured and (II) the fair
market value of such property or other assets; and




     (f) except as described in clause (e) above, interest, fees, premium, and
expenses and additional payments, if any, will not constitute Indebtedness.


          Notwithstanding the foregoing, in connection with the purchase or sale by the Company or any
Restricted Subsidiary of any assets or business, the term “Indebtedness” will exclude (x) customary
indemnification obligations and (y) post-closing payment adjustments to which the other party may
become entitled to the extent such payment is determined by a final closing balance sheet or such
payment is otherwise contingent; provided, however, that such amount would not be required to be
reflected on the face of a balance sheet prepared in accordance with GAAP.


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


          “Initial Notes” means the $400,000,000 aggregate principal amount of Notes issued under this
Supplemental Indenture on the Issue Date.


          “Intangible Assets” means assets that are considered to be intangible assets under GAAP,
including, without limitation, customer lists, goodwill, computer software, copyrights, trade
names, trademarks, patents, franchises, licenses, unamortized deferred charges, unamortized debt
discount and capitalized research and development costs.


          “Investment Grade Rating” means a debt rating of the Notes of BBB- or higher by S&P and Baa3
or higher by Moody’s or the equivalent of such ratings by S&P and Moody’s or in the event S&P or
Moody’s shall cease rating the Notes and the Company shall select any other Rating Agency, the
equivalent of such ratings by such other Rating Agency.


          “Investments” means, with respect to any Person, all investments by such Person in other
Persons (including Affiliates) in the forms of direct or indirect loans (including Guarantees of
Indebtedness or other Obligations), advances or capital contributions (excluding



16









 








commission, travel and similar advances to officers and employees made in the ordinary course
of business), prepaid expenses and accounts receivable, purchases or other acquisitions for
consideration of Indebtedness, Equity Interests or other securities, together with all items that
are or would be classified as investments on a balance sheet prepared in accordance with GAAP. If
the Company or any Subsidiary of the Company sells or otherwise disposes of any Equity Interests of
any direct or indirect Subsidiary of the Company such that, after giving effect to any such sale or
disposition, such Person is no longer a Subsidiary of the Company, the Company shall be deemed to
have made an Investment on the date of any such sale or disposition equal to the fair market value
of the Equity Interests of such Subsidiary not sold or disposed of in an amount determined as
provided in Section 4.07(c).



          “Issue Date” means March 2, 2010.


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


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


          “Net Cash Proceeds” with respect to any issuance or sale of Capital Stock, means the cash
proceeds of such issuance or sale net of attorneys’ fees, accountants’ fees, underwriters’ or
placement agents’ fees, listing fees, discounts or commissions and brokerage, consultant and other
fees and charges actually incurred in connection with such issuance or sale and net of taxes paid
or payable as a result of such issuance or sale (after taking into account any available tax credit
or deductions and any tax sharing arrangements).


          “Net Income” means, with respect to any Person, the net income (loss) of such Person,
determined in accordance with GAAP and before any reduction in respect of preferred stock
dividends, excluding, however:


          (1) any extraordinary gain or loss, together with any related provision for taxes on such
extraordinary gain or loss; and


          (2) any premiums, fees and expenses paid in connection with the Transactions.


          “Net Proceeds” means the aggregate cash proceeds received by the Company or any of its
Restricted Subsidiaries in respect of any Asset Sale (including, without limitation, any cash
received upon the sale or other disposition of any non-cash consideration received in any Asset
Sale), net of all costs relating to such Asset Sale, including, without limitation, legal,
accounting, investment banking fees and broker fees, and sales and underwriting commissions, and
any relocation expenses incurred as a result thereof, taxes paid or payable as a result thereof, in
each case after taking into account any available tax credits or deductions and any tax sharing
arrangements and amounts required to be applied to the repayment of Indebtedness, other than
Indebtedness under a Credit Facility, secured by a Lien on the asset or assets that were the



17









 








subject of such Asset Sale and any reserve for adjustment in respect of the sale price of such
asset or assets established in accordance with GAAP.



          “Non-Recourse Debt” means Indebtedness:


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


          (2) 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 other Indebtedness (other than the Notes) of the Company or any of
its Restricted Subsidiaries to declare a default on such other Indebtedness or cause the payment
thereof to be accelerated or payable prior to its Stated Maturity; and


          (3) 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 of its Restricted Subsidiaries.


          “Obligations” means any principal, premium, if any, interest (including interest accruing on
or after the filing of any petition in bankruptcy or for reorganization relating to the Company or
its Restricted Subsidiaries whether or not a claim for post-filing interest is allowed in such
proceeding), penalties, fees, charges, expenses, indemnifications, reimbursement obligations,
damages, including liquidated damages, Guarantees and other liabilities or amounts payable under
the documentation governing any Indebtedness or in respect thereof.


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


          “Permitted Investments” means:


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


          (2) any Investment in Cash Equivalents;


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




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




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


          (4) any Investment made as a result of the receipt of non-cash consideration from an Asset
Sale that was made pursuant to and in compliance with Section 4.10;



18









 







          (5) any Investments by the Company or any Restricted Subsidiary in a Receivables Subsidiary or
a Special Purpose Vehicle or any Investment by a Receivables Subsidiary in any other Person in
connection with a Qualified Receivables Transaction; provided, that any Investment in a Receivables
Subsidiary or a Special Purpose Vehicle is in the form of a Purchase Money Note or an Equity
Interest or in the form of a purchase of Receivables and Receivables Related Assets pursuant to a
Receivables Repurchase Obligation;


          (6) any Investment solely in exchange for the issuance of Equity Interests (other than
Disqualified Stock) of the Company;


          (7) Investments in accounts or notes receivable owing to the Company or any Restricted
Subsidiary 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 any such Restricted Subsidiary deems reasonable under the
circumstances;


          (8) loans and advances to employees and officers of the Company and its Restricted
Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of
$5.0 million at any one time outstanding;


          (9) Investments in securities received in settlement of Obligations of trade creditors or
customers in the ordinary course of business or in satisfaction of judgments or pursuant to any
plan of reorganization or similar arrangement upon the bankruptcy or insolvency of trade creditors
or customers;


          (10) workers’ compensation, utility, lease and similar deposits and prepaid expenses in the
ordinary course of business and endorsements of negotiable instruments and documents in the
ordinary course of business;


          (11) commission, payroll, travel and similar advances to employees in the ordinary course of
business;


          (12) Hedging Obligations entered into in the ordinary course of the Company’s or its
Restricted Subsidiaries’ businesses and not for speculative purposes and otherwise in compliance
with this Indenture;


          (13) Investments represented by Guarantees of Indebtedness that are otherwise permitted under
this Indenture; and


          (14) other Investments in any Person having an aggregate fair market value (measured on the
date each such Investment was made and without giving effect to subsequent changes in value), when
taken together with all other Investments made pursuant to this clause (14) that are at any time
outstanding, not to exceed the greater of (a) $150.0 million and (b) 10% of Consolidated Tangible
Assets.



19









 







          “Permitted Liens” means:


          (1) Liens securing Indebtedness of the Company or any Restricted Subsidiary provided that the
aggregate amount of Indebtedness secured by this clause (1) shall not exceed the greater of (a) the
greater of (i) $600.0 million or (ii) the Borrowing Base and (b) the amount of Indebtedness that,
after giving effect to the incurrence of such Indebtedness secured by such Liens, does not cause
the Consolidated Senior Secured Leverage Ratio of the Company to be greater than 2.5 to 1.0;


          (2) Liens in favor of the Company or the Guarantors;


          (3) Liens on property of a Person existing at the time such Person is merged with or into or
consolidated with the Company or any Restricted Subsidiary of the Company; provided that such Liens
were not entered into in contemplation of such merger or consolidation and do not extend to any
assets other than those of the Person merged into or consolidated with the Company or such
Subsidiary;


          (4) Liens on property existing at the time of acquisition thereof by the Company or any
Restricted Subsidiary of the Company; provided that such Liens were not entered into in
contemplation of such acquisition and only extend to the property so acquired;


          (5) Liens to secure Indebtedness (including Capital Lease Obligations) permitted by clause (4)
of Section 4.09(b) covering only the assets financed with such Indebtedness and additions and
improvements thereon;


          (6) Liens existing on the Issue Date;


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


          (8) deposits and landlords’, lessors’, carriers’, warehousemen’s, mechanics’, suppliers’,
materialmen’s, repairmen’s and other like Liens imposed by law incurred in the ordinary course of
business, in each case for sums not yet due or being contested in good faith by appropriate
proceedings diligently conducted, provided that any reserve or other appropriate provision as shall
be required in conformity with GAAP shall have been made therefor;


          (9) pledges or deposits made in connection with workers’ compensation, unemployment insurance
and other types of social security or similar legislation, or good faith deposits to secure the
performance of bids, tenders, government contracts (other than for the payment of Indebtedness) or
leases to which the Company or any Restricted Subsidiary is a party, deposits to secure statutory
obligations or bankers’ acceptances of the Company or any Restricted Subsidiary and deposits to
secure surety and appeal bonds to which the Company or a Restricted Subsidiary is a party, in each
case incurred in the ordinary course of business;


          (10) judgment Liens not giving rise to a Default or an Event of Default so long as such Lien
is adequately bonded and any appropriate legal proceedings which may have been



20









 








duly initiated for the review of such judgment shall not have been finally terminated or the
period within which such proceedings may be initiated shall not have expired;



          (11) easements, rights-of-way, zoning restrictions and other similar charges or encumbrances
affecting real property which do not materially adversely affect the value of said property or
interfere in any material respect with the ordinary conduct of the business of the Company or such
Restricted Subsidiary;


          (12) any interest or title of a lessor under any capital lease or operating lease; provided
that such Liens do not extend to any property or assets which is not leased property subject to
such lease;


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


          (14) Liens securing reimbursement obligations with respect to letters of credit incurred in
accordance with this Supplemental Indenture which encumber documents and other property relating to
such letters of credit and products and proceeds thereof;


          (15) Liens arising from Uniform Commercial Code financing statement filings regarding
operating leases entered into by the Company and its Restricted Subsidiaries in the ordinary course
of business;


          (16) leases or subleases, licenses or sublicenses, granted to others not interfering in any
material respect with the business of the Company or any Restricted Subsidiary;


          (17) Liens arising out of consignment or similar arrangements for the sale of goods entered
into by the Company or any of its Restricted Subsidiaries in the ordinary course of business;


          (18) rights of banks to set off deposits against debts owed to said bank;


          (19) Liens securing Permitted Refinancing Indebtedness which is incurred to refinance, renew,
replace, defease or discharge any Refinanced Indebtedness which has been secured by a Lien
permitted under this Supplemental Indenture and which has been incurred in accordance with the
provisions of this Supplemental Indenture; provided, however, that such Liens: (i) are no less
favorable to the Holders of the Notes in any material respect and are not more favorable to the
lienholders in any material respect with respect to such Liens than the Liens in respect of such
Refinanced Indebtedness; and (ii) do not extend to or cover any property or assets of the Company
or any of its Restricted Subsidiaries not securing such Refinanced Indebtedness;


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



21









 







          (21) Liens securing Hedging Obligations, currency agreements and commodities agreements which
relate to Indebtedness that is permitted to be incurred pursuant to Section 4.09;


          (22) Liens on Receivables Program Assets securing Receivables Program Obligations;


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


          (24) Liens under licensing agreements for use of intellectual property entered into in the
ordinary course of business; and


          (25) Liens incurred in the ordinary course of business of the Company or any Restricted
Subsidiary of the Company with respect to Obligations that do not exceed $15.0 million at any one
time outstanding.


          During any Suspension Period, the relevant clauses of Section 4.09 shall be deemed to be in
effect solely for purposes of determining the amount available under clauses (1) and (5) above.


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


          (1) the principal amount (or accreted value, if applicable) of such Permitted Refinancing
Indebtedness does not exceed the principal amount of (or accreted value, if applicable), plus
accrued interest on, the Refinanced Indebtedness (plus the amount of reasonable fees and expenses
incurred in connection therewith including premiums paid, if any, to the holders thereof);


          (2) such Permitted Refinancing Indebtedness has a Weighted Average Life to Maturity equal to
or greater than the Weighted Average Life to Maturity of the Refinanced Indebtedness;


          (3) if the Refinanced Indebtedness is subordinated in right of payment to the Notes, such
Permitted Refinancing Indebtedness is subordinated in right of payment to the Notes on terms at
least as favorable to the Holders of Notes as those contained in the documentation governing the
Refinanced Indebtedness;


          (4) such Permitted Refinancing Indebtedness is incurred either by the Company or by the
Restricted Subsidiary who is the obligor on the Refinanced Indebtedness; and


          (5) (a) if the Stated Maturity of the Indebtedness being refinanced is earlier than the Stated
Maturity of the Notes, the Permitted Refinancing Indebtedness has a Stated Maturity no earlier than
the Stated Maturity of the Refinanced Indebtedness or (b) if the Stated



22









 








Maturity of the Refinanced Indebtedness is later than the Stated Maturity of the Notes, the
Permitted Refinancing Indebtedness has a Stated Maturity at least 91 days later than the Stated
Maturity of the Notes.



          “Person” means any individual, corporation, limited liability company, partnership, joint
venture, association, joint-stock company, trust, estate, unincorporated organization or government
or any agency or political subdivision thereof or any other entity (including any subdivision or
ongoing business of any such entity, or substantially all of the assets of any such entity,
subdivision or business).


          “principal” of a Note means the principal of the Notes plus the premium, if any, payable on
the Note which is due or overdue or is to become due at the relevant time.


          “Prospectus Supplement” means the prospectus supplement of the Company dated February 19,
2010, relating to the Notes.


          “Purchase Money Note” means a promissory note evidencing the obligation of a Receivables
Subsidiary or a Special Purpose Vehicle to pay the purchase price for Receivables or other
Indebtedness to the Company or to any Restricted Subsidiary (or to a Receivables Subsidiary in the
case of a transfer to a Special Purpose Vehicle) in connection with a Qualified Receivables
Transaction, which note shall be repaid from cash available to the maker of such note, other than
cash required to be held as reserves pursuant to Receivables Documents, amounts paid in respect of
interest, principal and other amounts owing under Receivables Documents and amounts paid in
connection with the purchase of newly generated Receivables.


          “Qualified Capital Stock” means any Capital Stock that is not Disqualified Stock.


          “Qualified Receivables Transaction” means any transaction or series of transactions that may
be entered into by the Company or any Restricted Subsidiary of the Company pursuant to which the
Company or any such Restricted Subsidiary may sell, convey or otherwise transfer to a Receivables
Subsidiary (in the case of a transfer by the Company or any of its Restricted Subsidiaries) and any
other Person (in the case of a transfer by a Receivables Subsidiary), or may grant a security
interest in, any Receivables Program Assets (whether existing on the Issue Date or arising
thereafter); provided that:


          (1) no portion of the Indebtedness or any other Obligations (contingent or otherwise) of a
Receivables Subsidiary or Special Purpose Vehicle:




     (a) is Guaranteed by the Company or any of its Restricted Subsidiaries (other
than a Receivables Subsidiary), excluding Guarantees of Obligations pursuant to
Standard Securitization Undertakings,




     (b) is recourse to or obligates the Company or any of its Restricted
Subsidiaries (other than a Receivables Subsidiary) in any way other than pursuant to
Standard Securitization Undertakings, or




     (c) subjects any property or assets of the Company or any of its Restricted
Subsidiaries (other than a Receivables Subsidiary), directly or



23









 






indirectly, contingently or otherwise, to the satisfaction of Obligations
incurred in such transactions, other than pursuant to Standard Securitization
Undertakings;


          (2) neither the Company nor any of its Restricted Subsidiaries (other than a Receivables
Subsidiary) has any material contract, agreement, arrangement or understanding with a Receivables
Subsidiary or a Special Purpose Vehicle (except in connection with a Purchase Money Note or
Qualified Receivables Transaction) other than on terms no less favorable to the Company or such
Restricted Subsidiary than those that might be obtained at the time from Persons that are not
Affiliates of the Company, other than fees payable in the ordinary course of business in connection
with servicing accounts receivable; and


          (3) the Company and its Restricted Subsidiaries (other than a Receivables Subsidiary) do not
have any obligation to maintain or preserve the financial condition of a Receivables Subsidiary or
a Special Purpose Vehicle or cause such entity to achieve certain levels of operating results other
than Standard Securitization Undertakings.


          “Rating Agency” means each of S&P and Moody’s, or if S&P or Moody’s or both shall not make a
rating on the Notes publicly available (for reasons outside the control of the Company), a
statistical rating agency or agencies, as the case may be, nationally recognized in the United
States and selected by the Company (as certified by a Board Resolution) which shall be substituted
for S&P or Moody’s, or both, as the case may be.


          “Receivables” means all rights of the Company or any of its Restricted Subsidiaries (other
than a Receivables Subsidiary) to payments (whether constituting accounts, chattel paper,
instruments, general intangibles or otherwise, and including the right to payment of any interest
or finance charges), which rights are identified in the accounting records of the Company or such
Restricted Subsidiary as accounts receivable.


          “Receivables Documents” means:


          (1) one or more receivables purchase agreements, pooling and servicing agreements, credit
agreements, agreements to acquire undivided interests or other agreements to transfer or obtain
loans or advances against, or create a security interest in, Receivables Program Assets, in each
case as amended, modified, supplemented or restated and in effect from time to time and entered
into by the Company, a Restricted Subsidiary and/or a Receivables Subsidiary, and


          (2) each other instrument, agreement and other document entered into by the Company, a
Restricted Subsidiary or a Receivables Subsidiary relating to the transactions contemplated by the
agreements referred to in clause (1) above, in each case as amended, modified, supplemented or
restated and in effect from time to time.


          “Receivables Program Assets” means:


          (1) all Receivables which are described as being transferred by the Company, a Restricted
Subsidiary of the Company or a Receivables Subsidiary pursuant to the Receivables Documents;



24









 







          (2) all Receivables Related Assets; and


          (3) all collections (including recoveries) and other proceeds of the assets described in the
foregoing clauses.


          “Receivables Program Obligations” means:


          (1) Indebtedness and other Obligations owing in respect of notes, trust certificates,
undivided interests, partnership interests or other interests sold, issued and/or pledged, or
otherwise incurred, in connection with a Qualified Receivables Transaction; and


          (2) related obligations of the Company, a Subsidiary of the Company or a Special Purpose
Vehicle (including, without limitation, Standard Securitization Undertakings).


          “Receivables Related Assets” means:


          (1) any rights arising under the documentation governing or relating to Receivables (including
rights in respect of Liens securing such Receivables and other credit support in respect of such
Receivables);


          (2) any proceeds of such Receivables and any lockboxes or accounts in which such proceeds are
deposited;


          (3) spread accounts and other similar accounts (and any amounts on deposit therein)
established in connection with a Qualified Receivables Transaction;


          (4) any warranty, indemnity, dilution and other intercompany claim arising out of Receivables
Documents; and


          (5) other assets which are customarily transferred or in respect of which security interests
are customarily granted in connection with asset securitization transactions involving accounts
receivable.


          “Receivables Repurchase Obligation” means any obligation of the Company or a Restricted
Subsidiary of the Company (other than a Receivables Subsidiary) in a Qualified Receivables
Transaction to repurchase receivables arising as a result of a breach of a representation, warranty
or covenant or otherwise, including as a result of a receivable or portion thereof becoming subject
to any asserted defense, dispute, off-set or counterclaim of any kind as a result of any action
taken by, any failure to take action by or any other event relating to the Company or a Restricted
Subsidiary of the Company (other than a Receivables Subsidiary).


          “Receivables Subsidiary” means a special purpose Wholly Owned Restricted Subsidiary of the
Company created in connection with the transactions contemplated by a Qualified Receivables
Transaction, which Restricted Subsidiary engages in no activities other than those incidental to
such Qualified Receivables Transaction and which is designated as a Receivables Subsidiary by the
Company’s Board of Directors. Any such designation by the Board of Directors shall be evidenced by
filing with the Trustee a Board Resolution of the Company giving effect to such designation and an
Officers’ Certificate certifying, to the best of




25












 




such officers’ knowledge and belief after consulting with counsel, such designation, and the
transactions in which the Receivables Subsidiary will engage, comply with the requirements of the
definition of Qualified Receivables Transaction.




          “Related Business” means the business conducted by the Company and its Subsidiaries as of the
Issue Date and any and all businesses that in the good faith judgment of the Board of Directors of
the Company are similar or reasonably related, ancillary or complementary thereto or reasonable
extensions thereof.




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




          “Restricted Subsidiary” of a Person means any Subsidiary of the referent Person that is not an
Unrestricted Subsidiary.




          “S&P” means Standard & Poor’s Rating Services, a division of McGraw Hill, Inc., a New York
corporation, or any successor rating agency.




          “Sale and Leaseback Transactions” means with respect to any Person an arrangement with any
bank, insurance company or other lender or investor or to which such lender or investor is a party,
providing for the leasing by such Person of any asset of such Person which has been or is being
sold or transferred by such Person to such lender or investor or to any Person to whom funds have
been or are to be advanced by such lender or investor on the security of such asset.




          “Senior Secured Indebtedness” means the sum of (i) Indebtedness and letters of credit under
Credit Facilities (with letters of credit being deemed to have an amount equal to the maximum
potential liability of the Company and its Restricted Subsidiaries thereunder), (ii) the undrawn
availability of revolving credit Indebtedness under Credit Facilities and (iii) other Indebtedness
that is not subordinated in right of payment to the Notes which is secured by a Lien on any assets
or property of the Company or any Restricted Subsidiary.




          “Significant Subsidiary” means (1) any Subsidiary that would be a “significant subsidiary” as
defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Exchange Act, as
such Regulation is in effect on the date hereof, and (2) any Restricted Subsidiary that when
aggregated with all other Restricted Subsidiaries that are not otherwise Significant Subsidiaries
would constitute a Significant Subsidiary under clause (1) of this definition.




          “Special Purpose Vehicle” means a trust, partnership or other special purpose Person
established by the Company and/or any of its Restricted Subsidiaries to implement a Qualified
Receivables Transaction.




          “Standard Securitization Undertakings” means representations, warranties, covenants and
indemnities entered into by the Company or any Subsidiary of the Company which, in the good faith
judgment of the Board of Directors of the appropriate company, are reasonably customary in an
accounts receivable transaction and includes, without limitation, any Receivables Repurchase
Obligation.








26









 








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




          “Sturm Acquisition” means the acquisition pursuant to that certain Stock Purchase Agreement
dated as of December 20, 2009 of all of the outstanding Common Stock of Sturm Foods, Inc., a
Wisconsin corporation, from each of the shareholders listed on the signature pages to such Stock
Purchase Agreement.




          “Subsidiary” means, with respect to any Person:




          (1) any corporation, association or other business entity (other than a partnership) of which
more than 50% of the total voting power of shares of Capital Stock entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers or trustees thereof
is at the time owned or controlled, directly or indirectly, by such Person or one or more of the
other Subsidiaries of such Person (or a combination thereof); and




          (2) any partnership (a) the sole general partner or the managing general partner of which is
such Person or a Subsidiary of such Person or (b) the only general partners of which are such
Person or of one or more Subsidiaries of such Person (or any combination thereof).




          “Subsidiary Guarantee” means, individually, any Guarantee of payment of the Notes by a
Guarantor pursuant to the terms of the Base Indenture, and, collectively, all such Guarantees.
Each such Subsidiary Guarantee will be in the form prescribed by the Base Indenture.




          Transactions” means (i) the Sturm Acquisition, (ii) the offering of the Notes hereby, (iii)
the offering of Common Stock of the Company in an underwritten public offering to finance a portion
of the Sturm Acquisition and (iv) the payment of fees and expenses related to each of clauses (i),
(ii) and (iii) above.




          “Treasury Rate” means the yield to maturity at the time of computation of United States
Treasury securities with a constant maturity (as compiled and published in the most recent Federal
Reserve Statistical Release H.15 (519) which has become publicly available at least two Business
Days prior to the Redemption Date (or, if such Statistical Release is no longer published, any
publicly available source of similar market data)) most nearly equal to the period from the
Redemption Date to March 1, 2014;



provided, however, that if the period from the Redemption Date to March 1, 2014 is not equal to the
constant maturity of a United States Treasury security for which a weekly average yield is given,
the Treasury Rate shall be obtained by linear interpolation (calculated to the nearest one-twelfth
of a year) from the weekly average yields of United States Treasury securities for which such
yields are given, except that if the period from the Redemption Date to March 1, 2014 is less than
one year, the weekly average yield on actually traded United States Treasury securities adjusted to
a constant maturity of one year shall be used.








27









 








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




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




          (2) is not party to any agreement, contract, arrangement or understanding with the Company or
any Restricted Subsidiary of the Company 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;




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




          (4) has not guaranteed or otherwise directly or indirectly provided credit support for any
Indebtedness of the Company or any of its Restricted Subsidiaries unless such Guarantee or credit
support is released upon its designation as an Unrestricted Subsidiary.




          Any designation of a Subsidiary of the Company as an Unrestricted Subsidiary shall be
evidenced to the Trustee by filing with the Trustee a certified copy of the Board Resolution giving
effect to such designation and an Officers’ Certificate certifying that such designation complied
with the preceding conditions and was permitted by Section 4.07. If, at any time, any Unrestricted
Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it shall
thereafter cease to be an Unrestricted Subsidiary for purposes of this Supplemental Indenture and
any Indebtedness of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of
the Company as of such date and, if such Indebtedness is not permitted to be incurred as of such
date under Section 4.09, the Company shall be in default of such covenant. The Board of Directors
of the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary;
provided that such designation shall be deemed to be an incurrence of Indebtedness by a Restricted
Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted Subsidiary and such
designation shall only be permitted if (1) such Indebtedness is permitted under Section 4.09,
calculated on a pro forma basis as if such designation had occurred at the beginning of the
four-quarter reference period; and (2) no Default or Event of Default would be in existence
following such designation.




          Notwithstanding the foregoing, no Subsidiary of the Company shall be designated an
Unrestricted Subsidiary during any Suspension Period.




          “U.S. Dollar Equivalent” means, with respect to any monetary amount in a currency other than
U.S. dollars, at any time for determination thereof, the amount of U.S. dollars obtained by
converting such foreign currency involved in such computation into U.S. dollars at the spot rate
for the purpose of U.S. dollars with the applicable foreign currency as published in The Wall
Street Journal in the “Exchange Rates” column under the heading “Currency Trading” on the date two
Business Days prior to such determination.








28









 








          “U.S. Government Obligations” means direct non-callable Obligations of, or Guaranteed by, the
United States of America for the payment of which Guarantee or Obligations the full faith and
credit of the United States is pledged.




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




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




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




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




          “Wholly Owned Restricted Subsidiary” of any Person means a Restricted Subsidiary of such
Person all of the outstanding Capital Stock or other ownership interests of which (other than
directors’ qualifying shares) shall at the time be owned by such Person and/or by one or more
Wholly Owned Restricted Subsidiaries of such Person.




          SECTION 1.03 Other Definitions.




	 	 	 	 	 
	Term	 	Defined in Section
	Affiliate Transaction
	 	 	4.11	(a)
	 
	 	 	 	 
	Base Indenture
	 	Recitals
	 
	 	 	 	 
	Change of Control Offer
	 	 	4.13	(a)
	 
	 	 	 	 
	Company
	 	Preamble
	 
	 	 	 	 
	Covenant Defeasance
	 	 	7.03	 
	 
	 	 	 	 
	DTC
	 	 	2.02	(a)
	 
	 	 	 	 
	Event of Default
	 	 	6.01	 
	 
	 	 	 	 
	incur
	 	 	4.09	(a)
	 
	 	 	 	 
	Indenture
	 	Recitals
	 
	 	 	 	 
	Legal Defeasance
	 	 	7.02	 
	 
	 	 	 	 
	Net Proceeds Offer
	 	 	4.10	(c)
	 
	 	 	 	 
	Net Proceeds Offer Amount
	 	 	4.10	(c)
	 
	 	 	 	 
	Net Proceeds Offer Trigger Date
	 	 	4.10	(c)
	 
	 	 	 	 
	Notes
	 	Recitals






29









 






	 	 	 	 	 
	Term	 	Defined in Section
	Offer Amount
	 	 	3.04	(b)
	 
	 	 	 	 
	Offer to Purchase
	 	 	3.04	(a)
	 
	 	 	 	 
	Pari Passu Indebtedness
	 	 	4.10	(c)
	 
	 	 	 	 
	Payment Default
	 	 	6.01	(a)
	 
	 	 	 	 
	Permitted Debt
	 	 	4.09	(b)
	 
	 	 	 	 
	Purchase Date
	 	 	3.04	(b)
	 
	 	 	 	 
	Restricted Payments
	 	 	4.07	(a)
	 
	 	 	 	 
	Supplemental Indenture
	 	Preamble
	 
	 	 	 	 
	Surviving Entity
	 	 	5.01	(a)
	 
	 	 	 	 
	Suspended Covenants
	 	 	4.17	 
	 
	 	 	 	 
	Suspension Period
	 	 	4.17	 
	 
	 	 	 	 
	Trustee
	 	Preamble






          SECTION 1.04 Incorporation by Reference of Trust Indenture Act.




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



               (b) The following Trust Indenture Act terms used in this Supplemental Indenture have the
following meanings:



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



                    “indenture security holder” means a Holder;



                    “indenture to be qualified” means this Indenture;



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



                    “obligor” on the Notes and the Subsidiary Guarantees means the Company, each Guarantor and any
successor obligor upon the Notes and the Subsidiary Guarantees.



               (c) All other terms used in this Supplemental Indenture that are defined by the Trust
Indenture Act, defined by Trust Indenture Act reference to another statute or defined by SEC rule
under the Trust Indenture Act and not otherwise defined herein have the meanings



30









 




so assigned to them either in the Trust Indenture Act, by another statute or SEC rule, as
applicable.




          SECTION 1.05 Rules of Construction.




               (a) Unless the context otherwise requires:




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




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




               (iii) “or” is not exclusive;




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




               (v) all references in this instrument to “Articles,” “Sections” and other subdivisions
without reference to the Base Indenture are to the designated Articles, Sections and
subdivisions of this Supplemental Indenture as originally executed;




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




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




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




               (ix) references to sections of or rules under the Securities Act, the Exchange Act or
the Trust Indenture Act 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



          Pursuant to Sections 201 and 301 of the Base Indenture, the provisions of this Article 2
establish the form of the Notes under this Supplemental Indenture.




          SECTION 2.01 Form and Dating.




               (a) General. The Notes and the Trustee’s certificate of authentication shall be
substantially in the form of Exhibit A hereto, which is hereby incorporated in and
expressly made part of this Supplemental Indenture. The Notes may have notations, legends or
endorsements required by law, stock exchange rule or usage in addition to those set forth on
Exhibit A. Each Note shall be dated the date of its authentication. The terms and
provisions



31









 




contained in the Notes shall constitute, and are hereby expressly made, a part of this
Supplemental Indenture and the Company, the Guarantors and the Trustee, by their execution and
delivery of this Supplemental Indenture, expressly agree to such terms and provisions and to be
bound thereby. However, to the extent any provision of any Note conflicts with the express
provisions of this Supplemental Indenture, the provisions of this Supplemental Indenture shall
govern and be controlling.




               (b) Book-Entry Provisions. This Section 2.01(b) shall only apply to Global Notes
deposited with the Trustee, as custodian for the Depositary. Participants and Indirect
Participants shall have no rights under this Supplemental Indenture with respect to any Global Note
held on their behalf by the Depositary or by the Trustee as the custodian for the Depositary or
under such Global Note, 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.



               (c) Certificated Notes. Except as otherwise provided in this Supplemental Indenture,
owners of beneficial interests in Global Notes will not be entitled to receive physical delivery of
certificated Notes.



          SECTION 2.02 Registrar and Paying Agent.




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



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



          SECTION 2.03 Additional Notes.




          The Company shall be entitled, subject to its compliance with Section 4.09, to issue
Additional Notes under this Supplemental Indenture in an unlimited aggregate principal amount which
shall have identical terms as the Initial Notes, other than with respect to the date of issuance
and issue price and first payment of interest. The Initial Notes and any Additional Notes shall be
treated as a single class for all purposes under this Supplemental Indenture, including, without
limitation, waivers, amendments, redemptions and offers to purchase.




          With respect to any Additional Notes, the Company shall set forth in a resolution of its Board
of Directors and an Officers’ Certificate, a copy of each 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 Supplemental Indenture; and



32









 





               (b) the issue price, the issue date and the CUSIP number(s) of such Additional Notes.



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 3.02 of this Supplemental Indenture and paragraph 5 of the Notes, it shall furnish to the
Trustee an Officers’ Certificate setting forth (i) the Section of this Supplemental Indenture
pursuant to which the redemption shall occur, (ii) the Redemption Date, (iii) the principal amount
of Notes to be redeemed, and (iv) the Redemption Price. If the Company elects to redeem Notes
pursuant to the provisions of Section 3.02 of this Supplemental Indenture and paragraph 5 of the
Notes, it shall furnish such Officers’ Certificate to the Trustee at least 30 days but not more
than 60 days before a Redemption Date unless a shorter notice shall be reasonably satisfactory to
the Trustee. Each Officers’ Certificate shall be accompanied by an Opinion of Counsel from the
Company to the effect that such redemption will comply with the conditions herein. Any such notice
may be cancelled at any time prior to notice of such redemption being mailed to any Holder and
shall, therefore, be void and of no effect.




          SECTION 3.02 Optional Redemption.




               (a) On or after March 1, 2014, the Company may redeem all or a part of the Notes upon not less
than 30 nor more than 60 days’ notice, at the Redemption Prices (expressed as percentages of
principal amount) set forth below plus accrued and unpaid interest to the applicable Redemption
Date, if redeemed during the twelve-month period beginning on March 1 of the years indicated below:



	 	 	 	 	 
	 	 	Redemption	 
	Redemption Year	 	Price	 
	2014
	 	 	103.875	%
	2015
	 	 	101.938	%
	2016 and thereafter
	 	 	100.000	%






               (b) Prior to March 1, 2013, the Company may, at its option, on any one or more occasions
redeem up to 35% of the aggregate principal amount of Notes issued under this Supplemental
Indenture with the Net Cash Proceeds of one or more Equity Offerings at a Redemption Price of
107.750% of the principal amount thereof, plus accrued and unpaid interest, if any, to the
Redemption Date (subject to the right of holders of record on the relevant record date to receive
interest due on the relevant interest payment date); provided that:




               (1) at least 65% of the aggregate principal amount of Notes issued under this
Supplemental Indenture remains Outstanding after each such redemption; and



33









 






               (2) the redemption occurs within 120 days after the closing of such Equity Offering.



               (c) In addition, at any time prior to March 1, 2014, the Company may, at its option, on any
one or more occasions redeem all or a part of the Notes upon not less than 30 nor more than 60
days’ notice, at a Redemption Price equal to 100% of the principal amount thereof plus the
Applicable Premium plus accrued and unpaid interest, if any, to the Redemption Date.



               (d) Notices of redemption to Holders may not be conditional.



               (e) If an optional Redemption Date is on or after a Regular Record Date and on or before the
related Interest Payment Date, the accrued and unpaid interest, if any, will be paid to the Person
in whose name the Note is registered at the close of business on such Regular Record Date, and no
additional interest will be payable to Holders whose Notes will be subject to redemption by the
Company.



          SECTION 3.03 Mandatory Redemption.




          The Company shall not be required to make mandatory redemption or sinking fund payments with
respect to the Notes. The foregoing shall not affect the Company’s obligations under Sections 4.10
and 4.13.




          SECTION 3.04 Repurchase at the Option of Holders.




               (a) In the event that, pursuant to Section 4.10 or Section 4.13, the Company shall be required
to commence an offer to all Holders to purchase Notes and, at the Company’s option, holders of
other Pari Passu Indebtedness (each, an “Offer to Purchase”), it shall follow the procedures
specified below.



               (b) Within 25 days following a Net Proceeds Offer Trigger Date and within 30 days following a
Change of Control, the Company shall mail a notice to each Holder, with a copy to the Trustee,
describing the transaction or transactions that triggered the Offer to Purchase and offering to
purchase Notes on the date (the “Purchase Date”) specified in such notice. The notice shall
contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to
the Offer to Purchase. The Offer to Purchase shall be made to all Holders. The notice, which
shall govern the terms of the Offer to Purchase, shall state:




               (1) that the Offer to Purchase is being made pursuant to this Section 3.04 and Section
4.10 or 4.13, as the case may be, and the length of time the Offer to Purchase shall remain
open;




               (2) that either (a) in the case of a Change of Control Offer, a Change of Control has
occurred and that such Holder has the right to require the Company to purchase such holder’s
Notes at a purchase price in cash equal to 101% of the principal amount thereof or (b) in
the case of a Net Proceeds Offer, there are Net Proceeds in an amount such that such Holder
has the right to require the Company to purchase such Holder’s Notes at 100% of the
principal amount thereof, in each case, plus



34









 







accrued and unpaid interest, if any, to the Purchase Date (subject to the right of
Holders of record on the relevant Regular Record Date to receive interest on an Interest
Payment Date that is on or prior to the date fixed for purchase);




               (3) the Purchase Date (which shall be a Business Day no earlier than 30 days nor later
than 60 days following the applicable Net Proceeds Offer Trigger Date, in the case of a Net
Proceeds Offer, or the date such notice is mailed, in the case of a Change of Control
Offer);




               (4) the aggregate principal amount of Notes (and in the case of a Net Proceeds Offer,
Pari Passu Indebtedness) being offered to be purchased (the “Offer Amount”), which shall be
equal to the Net Proceeds Offer Amount in the case of a Net Proceeds Offer and the principal
amount of all Notes Outstanding in the case of a Change of Control Offer; information as to
any other Pari Passu Indebtedness included in the Offer to Purchase (in the case of a Net
Proceeds Offer); and the purchase price and the Purchase Date;




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




               (6) 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 after the Purchase
Date;




               (7) 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 in accordance with Applicable Procedures
by transfer by book-entry transfer, to the Company, a Depositary, if appointed by the
Company, or a Paying Agent at the address specified in the notice at least three days before
the Purchase Date;




               (8) 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 second
Business Day prior to the Purchase Date, a telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the principal amount of the Note the Holder delivered
for purchase and a statement that such Holder is withdrawing his election to have such Note
purchased;




               (9) that, in the case of a Net Proceeds Offer and subject to Applicable Procedures, if
the aggregate principal amount of Notes tendered by Holders into an Offer to Purchase
exceeds the Offer Amount, the Trustee shall select the Notes to be purchased (i) if the
Notes are listed, in compliance with the requirements of the principal national securities
exchange on which the Notes are then listed or (ii) if the Notes are not so listed, on a pro
rata basis (with such adjustments as may be deemed appropriate by the Company so that only
Notes in denominations of $2,000, or integral multiples of $1,000, shall be purchased);



35









 






               (10) that Holders whose Notes were purchased only 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




               (11) in the case of a Change of Control Offer, the circumstances and relevant facts
regarding such Change of Control.



               (c) 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.



               (d) On or before the Purchase Date, the Company shall, to the extent lawful, accept for
payment, in accordance with clause (9) of Section 3.04(b), the Offer Amount of Notes or portions
thereof tendered pursuant to the Offer to Purchase, or if less than the Offer Amount has been
tendered, all Notes tendered, shall deposit with the Paying Agent an amount equal to the purchase
price for all Notes so accepted for purchase and shall deliver to the Trustee an Officers’
Certificate stating that such Notes or portions thereof were accepted for payment by the Company in
accordance with the terms of this Section 3.04. The Company, the Depositary or the Paying Agent,
as the case may be, shall promptly mail or deliver to each tendering Holder an amount equal to the
purchase price of the Notes tendered by such Holder and accepted by the Company for purchase, and
the Company shall promptly issue a new Note, and the Trustee, upon written request from the Company
shall authenticate and mail or deliver such new Note to such Holder, in a principal amount equal to
any unpurchased portion of the Note surrendered, or transferred by book-entry transfer in
accordance with Applicable Procedures. Any Note not so accepted shall be promptly mailed or
delivered by the Company to the Holder thereof. The Company shall publicly announce the results of
the Offer to Purchase on or as soon as practicable after the Purchase Date.



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 the Notes and in this Supplemental Indenture.
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 11:00 a.m., New York 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 and the Paying Agent is not
prohibited from paying such money to the Holders on that date. 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.







36









 








               (a) The Company shall maintain an office or agency (which unless otherwise provided will be
the office of the Trustee) 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 Supplemental 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 4.02(a).



          SECTION 4.03 Reports.




               (a) Whether or not required by the Commission, so long as any Notes are Outstanding, the
Company will furnish to the Holders of Notes and the Trustee, within the time periods specified in
the Commission’s rules and regulations for a company subject to reporting under Section 13(a) or
15(d) of the Exchange Act:




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




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



               (b) In addition, whether or not required by the Commission, the Company will file a copy of
all of the information and reports referred to in clauses (1) and (2) above with the Commission for
public availability within the time periods specified in the Commission’s rules and regulations for
a company subject to reporting under Section 13(a) or 15(d) of the Exchange Act (unless the
Commission will not accept such a filing) and make such information available to securities
analysts and prospective investors upon request. Notwithstanding the foregoing, to the extent the
Company files the information and reports referred to in clauses (1) and (2) above with the
Commission and such information is publicly available on the Internet, the Company shall be deemed
to be in compliance with its obligations



37









 




to furnish such information to the Holders of the Notes and to make such information available
to securities analysts and prospective investors. The Company will not take any action for the
purpose of causing the Commission not to accept any such filings. If, notwithstanding the
foregoing, the Commission will not accept the Company’s filings for any reason, the Company will
post the reports referred to in clauses (1) and (2) above on its website within the time periods
that would apply if the Company were required to file those reports with the Commission.




               (c) In addition, for so long as any Notes remain Outstanding, the Company and the Guarantors
will furnish to the Holders of the Notes and to securities analysts and prospective investors, upon
their request, the information required to be delivered pursuant to Rule 144A(d)(4) of the
Securities Act.



               (d) Delivery of any reports, information and documents by the Company or Guarantors to the
Trustee pursuant to the provisions of this Section 4.03 is for informational purposes only and the
Trustee’s receipt of same shall not constitute constructive notice of any information contained
therein or determinable from information contained therein, including the Company’s or any
Guarantor’s compliance with any of the covenants hereunder (as to which the Trustee is entitled to
rely exclusively on Officers’ Certificates).



          SECTION 4.04 Limitation on Layering Indebtedness. The Company will not, and will not
permit any of its Restricted Subsidiaries to, directly or indirectly, incur any Indebtedness that
is or purports to be by its terms (or by the terms of any agreement governing such Indebtedness)
subordinated in right of payment to any other Indebtedness of the Company or of such Restricted
Subsidiary, as the case may be, unless such Indebtedness is also by its terms (or by the terms of
any agreement governing such Indebtedness) made expressly subordinated in the right of payment to
the Notes or the Subsidiary Guarantee of such Restricted Subsidiary, to the same extent and in the
same manner as such Indebtedness is subordinated in right of payment to such other Indebtedness of
the Company or such Restricted Subsidiary, as the case may be.




          For purposes of this Section 4.04, no Indebtedness shall be deemed to be subordinated in right
of payment to any other Indebtedness of the Company or any of its Restricted Subsidiaries solely by
virtue of being unsecured or secured by a junior priority Lien or by virtue of the fact that the
holders of such Indebtedness have entered into intercreditor agreements or other arrangements
giving one or more of such holders priority over the other holders in the collateral held by them,
including intercreditor agreements that contain customary provisions requiring turnover by holders
of junior priority Liens of proceeds of collateral in the event that the security interests in
favor of the holders of the senior priority in such intended collateral are not perfected or
invalidated and similar customary provisions protecting the holders of senior priority Liens.




          SECTION 4.05 Limitation on Sale and Leaseback Transactions.




          The Company shall not, and shall not permit any of its Restricted Subsidiaries to, enter into
any Sale and Leaseback Transaction unless:




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



38









 






               (1) incur Indebtedness in an amount equal to the Attributable Indebtedness with respect
to such Sale and Leaseback Transaction pursuant to the Fixed Charge Coverage Ratio test set
forth in Section 4.09(a); and




               (2) create a Lien on such property securing such Attributable Indebtedness without also
securing the Notes or the applicable Subsidiary Guarantee pursuant to Section 4.12;



               (b) the gross cash proceeds of such Sale and Leaseback Transaction are at least equal to the
fair market value, as determined in good faith by the Board of Directors of the Company and set
forth in an Officers’ Certificate delivered to the Trustee, of the property that is the subject of
such Sale and Leaseback Transaction; and



               (c) such Sale and Leaseback Transaction is effected in compliance with Section 4.10.



          SECTION 4.06 Payments for Consent.




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




          SECTION 4.07 Restricted Payments.




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




               (1) declare or pay any dividend or make any other payment or distribution on account of
the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without
limitation, any payment in connection with any merger or consolidation involving the Company
or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s
or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (other
than (i) dividends or distributions payable in Equity Interests (other than Disqualified
Stock) of the Company or (ii) to the Company or a Restricted Subsidiary of the Company);




               (2) purchase, repurchase, redeem, defease or otherwise acquire or retire for value
(including, without limitation, in connection with any merger or consolidation involving the
Company) any Equity Interests of the Company or any direct or indirect parent of the
Company, in each case held by Persons other than the Company or a Restricted Subsidiary of
the Company;




               (3) make any payment on or with respect to, or purchase, repurchase, redeem, defease or
otherwise acquire or retire for value, any Indebtedness that is subordinated to the Notes or
the Subsidiary Guarantees, except a payment of



39









 







interest or principal at the Stated Maturity thereof (other than intercompany
Indebtedness between or among the Company and its Restricted Subsidiaries); or




               (4) make any Restricted Investment;


(all such payments and other actions set forth in clauses (1) through (4) above being collectively
referred to as “Restricted Payments”), unless, at the time of and after giving effect to such
Restricted Payment:





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




               (B) the Company would, at the time of such Restricted Payment
and after giving pro forma effect thereto as if such Restricted
Payment had been made at the beginning of the applicable
four-quarter period, have been permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Fixed Charge Coverage Ratio
test set forth in Section 4.09(a); and




               (C) such Restricted Payment, together with the aggregate amount
of all other Restricted Payments made by the Company and its
Restricted Subsidiaries after the date of this Supplemental
Indenture (excluding Restricted Payments permitted by clause (2),
(3), (4), (5) or (9) of Section 4.07(b)), is less than the sum,
without duplication, of:




               (i) 50% of the cumulative Consolidated Net Income of the Company for the period (taken
as one accounting period) commencing on the first day of the fiscal quarter in which the
Issue Date occurs to and ending on the last day of the fiscal quarter ended immediately
prior to the date of such calculation for which internal financial statements are available
at the time of such Restricted Payment (or, if such Consolidated Net Income for such period
is a deficit, less 100% of such deficit); plus




               (ii) 100% of the aggregate net proceeds (including the fair market value of property
other than cash) received by the Company after the date of this Supplemental Indenture as a
contribution to its common equity capital or from the issue or sale of Equity Interests of
the Company (other than Disqualified Stock and other than the net proceeds received in
connection with the Common Stock offering used to fund a portion of the Sturm Acquisition)
or from the issue or sale of Disqualified Stock or debt securities of the Company that have
been converted into or exchanged for such Equity Interests (other than Equity Interests (or
Disqualified Stock or debt securities) sold to a Subsidiary of the Company); plus




               (iii) to the extent that any Restricted Investment that was made after the date of this
Supplemental Indenture is sold for cash or otherwise liquidated or repaid for cash, the
lesser of (x) the cash return of capital with respect to such Restricted




40












 






Investment (less the cost of disposition, if any) and (y) the initial amount of such
Restricted Investment; plus




               (iv) upon redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary, the
lesser of (x) the fair market value of the Company’s Investment in such Subsidiary as of the
date of redesignation and (y) such fair market value as of the date such Subsidiary was
originally designated as an Unrestricted Subsidiary.




          (b) The provisions of Section 4.07(a) shall not prohibit:




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




                    (2) the redemption, repurchase, retirement, defeasance or other acquisition of any
subordinated Indebtedness of the Company or any of its Restricted Subsidiaries or any Equity
Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of
the net cash proceeds of the substantially concurrent sale (other than to a Restricted
Subsidiary of the Company) of, Equity Interests of the Company (other than Disqualified
Stock); provided that the amount of any such net cash proceeds that are utilized for any
such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded
from clause (C)(ii) of Section 4.07(a);




                    (3) the redemption, repurchase, retirement, defeasance or other acquisition of
subordinated Indebtedness or Disqualified Stock of the Company or any of its Restricted
Subsidiaries with the net cash proceeds from a substantially concurrent incurrence of
Permitted Refinancing Indebtedness;




                    (4) the repurchase, redemption or other acquisition or retirement for value of any
Equity Interests of the Company or any Restricted Subsidiary of the Company held by any
member of the Company’s (or any of its Restricted Subsidiaries’) management pursuant to any
management equity subscription agreement, stock option agreement, employment agreement,
severance agreement or other executive compensation arrangement; provided that the aggregate
price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall
not exceed $5.0 million in any twelve-month period (provided that the Company may carry over
and make in a subsequent calendar year, commencing with 2011, in addition to the amounts
permitted for such calendar year, up to $2.0 million of unutilized capacity under this
clause (4) attributable to the immediately preceding calendar year;




                    (5) the repurchase of Equity Interests deemed to occur upon the exercise of stock
options to the extent such Equity Interests represent a portion of the exercise price of
those stock options;




                    (6) payments to holders of the Company’s capital stock in lieu of the issuance of
fractional shares of its Capital Stock;



41









 






                    (7) the redemption, repurchase, retirement, defeasance or other acquisition of
Disqualified Stock of the Company in exchange for Disqualified Stock of the Company that is
permitted to be issued pursuant to Section 4.09;




                    (8) the purchase, redemption, acquisition, cancellation or other retirement for a
nominal value per right of any rights granted to all the holders of Common Stock of the
Company pursuant to any shareholders’ rights plan adopted for the purpose of protecting
shareholders from unfair takeover tactics; provided, that any such purchase, redemption,
acquisition, cancellation or other retirement of such rights is not for the purpose of
evading the limitations of this Section 4.07 (all as determined in good faith by a senior
financial officer of the Company); and




                    (9) other Restricted Payments in an aggregate amount since the Issue Date not to exceed
$100.0 million under this clause (9).


provided that in the case of clause (4), (5) or (9), no Default shall have occurred and be
continuing.




               (c) The amount of all Restricted Payments (other than cash) shall be the fair market value on
the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or
issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted
Payment. The fair market value of any assets or securities that are required to be valued by this
covenant shall be determined in good faith by the Board of Directors, whose resolution with respect
thereto shall be delivered to the Trustee. With respect to any Restricted Payment permitted
pursuant to clause (2), (3) or (7) of Section 4.07(b), not later than 10 days following the end of
the fiscal quarter in which such Restricted Payment was made, the Company shall deliver to the
Trustee an Officers’ Certificate stating that such Restricted Payment is permitted and setting
forth the basis upon which the calculations required by this Section 4.07 were computed.



               (d) The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted
Subsidiary in accordance with the definition of “Unrestricted Subsidiary” if the designation would
not cause a Default. All outstanding Investments owned by the Company and its Restricted
Subsidiaries in the designated Unrestricted Subsidiary will be treated as an Investment made at the
time of the designation and will reduce the amount available for Restricted Payments under Section
4.07(a) or Permitted Investments, as applicable. All such outstanding Investments will be treated
as Restricted Investments equal to the fair market value of such Investments at the time of the
designation. The designation will not be permitted if such Restricted Payment would not be
permitted at that time and if such Restricted Subsidiary does not otherwise meet the definition of
an Unrestricted Subsidiary. The Board of Directors may redesignate any Unrestricted Subsidiary to
be a Restricted Subsidiary in accordance with the definition of “Unrestricted Subsidiary.”



          SECTION 4.08 Dividend and Other Payment Restrictions Affecting Subsidiaries.







42









 








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




               (1) pay dividends or make any other distributions on its Capital Stock to the Company
or any of the Company’s Restricted Subsidiaries, or with respect to any other interest or
participation in, or measured by, its profits, or pay any Indebtedness owed to the Company
or any of the Company’s Restricted Subsidiaries;




               (2) make loans or advances to the Company or any of the Company’s Restricted
Subsidiaries; or




               (3) transfer any of its properties or assets to the Company or any of the Company’s
Restricted Subsidiaries.



               (b) Section 4.08(a) will not apply to encumbrances or restrictions existing under or by reason
of:




                    (1) agreements governing Existing Indebtedness and the Credit Agreement as in effect on
the date of this Supplemental Indenture and any amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacements or refinancings of those
agreements, provided that such amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements or refinancings are not materially more restrictive,
taken as a whole, with respect to such dividend and other payment restrictions than those
contained in such agreements on the Issue Date;




                    (2) this Supplemental Indenture, the Notes and the related Subsidiary Guarantees;




                    (3) applicable law;




                    (4) any instrument governing Indebtedness or Capital Stock of a Person acquired by the
Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition
(except to the extent such Indebtedness was incurred or Capital Stock was issued in
connection with or in contemplation of such acquisition), which encumbrance or restriction
is not applicable to any Person, or the properties or assets of any Person, other than the
Person, or the property or assets of the Person, so acquired, provided that, in the case of
Indebtedness, such Indebtedness was permitted by the terms of this Supplemental Indenture to
be incurred;




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




                    (6) purchase money obligations for property acquired in the ordinary course of business
that impose restrictions on the property so acquired of the nature described in clause (3)
of Section 4.08(a);



43









 






                    (7) any agreement for the sale or other disposition of all or substantially all the
Capital Stock or assets of a Restricted Subsidiary that restricts distributions by such
Restricted Subsidiary pending the closing of such sale or other disposition;




                    (8) agreements governing Permitted Refinancing Indebtedness, provided that the
restrictions contained in the agreements governing such Permitted Refinancing Indebtedness
are not materially more restrictive, taken as a whole, than those contained in the
agreements governing the Indebtedness being refinanced;




                    (9) any agreement creating a Lien securing Indebtedness otherwise permitted to be
incurred pursuant to Section 4.12, to the extent limiting the right of the Company or any of
its Restricted Subsidiaries to dispose of the assets subject to such Lien;




                    (10) provisions with respect to the disposition or distribution of assets or property
in joint venture agreements and other similar agreements entered into in the ordinary course
of business;




                    (11) customary restrictions on a Receivables Subsidiary and Receivables Program Assets
effected in connection with a Qualified Receivables Transaction;




                    (12) restrictions on cash or other deposits or net worth imposed by customers under
contracts entered into in the ordinary course of business; and




                    (13) agreements governing Indebtedness incurred in compliance with Section 4.09(b)(4),
provided that such encumbrances or restrictions apply only to assets financed with the
proceeds of such Indebtedness.



          SECTION 4.09 Incurrence of Indebtedness and Issuance of Preferred Stock.




               (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly
or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly
liable, contingently or otherwise, with respect to (collectively, “incur”) any Indebtedness
(including Acquired Debt), and the Company will not issue any Disqualified Stock and will not
permit any of its Restricted Subsidiaries to issue any shares of preferred stock; provided,
however, that the Company and any of the Guarantors may incur Indebtedness (including Acquired
Debt) or issue Disqualified Stock, and the Guarantors may issue preferred stock, if the Fixed
Charge Coverage Ratio for the Company’s most recently ended four full fiscal quarters for which
internal financial statements are available immediately preceding the date on which such additional
Indebtedness is incurred or such Disqualified Stock or preferred stock is issued would have been at
least 2.0 to 1.0, determined on a pro forma basis (including a pro forma application of the net
proceeds therefrom) as if the additional Indebtedness had been incurred, or the Disqualified Stock
or preferred stock had been issued, as the case may be, at the beginning of such four-quarter
period.



44









 





               (b) Section 4.09(a) will not prohibit the incurrence of any of the following items of
Indebtedness (collectively, “Permitted Debt”):




               (1) the incurrence by the Company and its Restricted Subsidiaries of Indebtedness and
letters of credit under Credit Facilities in an aggregate amount at any time outstanding
(with letters of credit being deemed to have an amount equal to the maximum potential
liability of the Company and its Restricted Subsidiaries thereunder) not to exceed the
greater of $600.0 million or the Borrowing Base, less the aggregate amount of all Net
Proceeds of Asset Sales applied by the Company or any of its Restricted Subsidiaries to
repay Indebtedness and permanently reduce commitments under Credit Facilities pursuant to
Section 4.10;




               (2) the incurrence by the Company and its Restricted Subsidiaries of Existing
Indebtedness;




               (3) the incurrence by the Company and the Guarantors of Indebtedness represented by the
Notes and Subsidiary Guarantees to be issued on the Issue Date;




               (4) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness
represented by Capital Lease Obligations, mortgage financings or purchase money obligations,
in each case, incurred for the purpose of financing all or any part of the purchase price or
cost of construction or improvement of property, plant or equipment used in the business of
the Company or such Restricted Subsidiary, in an aggregate principal amount, including all
Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness
incurred pursuant to this clause (4), not to exceed $25.0 million at any time outstanding;




               (5) the incurrence by the Company or any of its Restricted Subsidiaries of Permitted
Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund,
refinance or replace, Indebtedness incurred under clause (2) or (3) above or this clause (5)
or pursuant to Section 4.09(a);




               (6) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness
owed to the Company or any of its Restricted Subsidiaries; provided, however, that:




     (a) if the Company or any Guarantor is the obligor on such Indebtedness, such
Indebtedness must be expressly subordinated to the prior payment in full in cash of
all Obligations with respect to the Notes, in the case of the Company, or the
Subsidiary Guarantee of such Guarantor, in the case of a Guarantor; and




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



45









 






Indebtedness by the Company or such Restricted Subsidiary, as the case may be,
that was not permitted by this clause (6);




               (7) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness
under Hedging Obligations entered into for bona fide hedging purposes of the Company or any
Restricted Subsidiary and not for the purpose of speculation; provided that in the case of
Hedging Obligations relating to interest rates, (a) such Hedging Obligations relate to
payment obligations on Indebtedness otherwise permitted to be incurred by this Section 4.09
and (b) the notional principal amount of such Hedging Obligations at the time incurred does
not exceed the principal amount of the Indebtedness to which such Hedging Obligations
relate;




               (8) the Guarantee by the Company or any of its Restricted Subsidiaries of Indebtedness
of the Company or a Restricted Subsidiary of the Company that was permitted to be incurred
by another provision of this Section 4.09 and could have been incurred (in compliance with
this Section 4.09) by the Person so Guaranteeing such Indebtedness;




               (9) the incurrence of Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument inadvertently (except in the
case of daylight overdrafts) drawn against insufficient funds in the ordinary course of
business; provided, however, that such Indebtedness is extinguished within five Business
Days of incurrence;




               (10) the incurrence of Indebtedness of the Company or any of its Restricted
Subsidiaries in respect of security for workers’ compensation claims, payment obligations in
connection with self- insurance, performance, surety and similar bonds and completion
guarantees provided by the Company or any of its Restricted Subsidiaries in the ordinary
course of business; provided, that the underlying obligation to perform is that of the
Company and its Restricted Subsidiaries and not that of the Company’s Unrestricted
Subsidiaries; provided further, that such underlying obligation is not in respect of
borrowed money;




               (11) the incurrence of Indebtedness that may be deemed to arise as a result of
agreements of the Company or any Restricted Subsidiary of the Company providing for
indemnification, adjustment of purchase price, earn-out or similar Obligations, in each
case, incurred or assumed in connection with the disposition of any business or assets of
the Company or any Restricted Subsidiary or Equity Interests of a Restricted Subsidiary;
provided that (a) any amount of such Obligations included on the face of the balance sheet
of the Company or any Restricted Subsidiary shall not be permitted under this clause (11)
and (b) the maximum aggregate liability in respect of all such Obligations outstanding under
this clause (11) shall at no time exceed the gross proceeds actually received by the Company
and the Restricted Subsidiaries in connection with such disposition;




               (12) Indebtedness incurred under commercial letters of credit issued for the account of
the Company or any of its Restricted Subsidiaries in the



46









 






ordinary course of business (and not for the purpose of, directly or indirectly,
incurring Indebtedness or providing credit support or a similar arrangement in respect of
Indebtedness), provided that any drawing under any such letter of credit is reimbursed in
full within seven days or Indebtedness of the Company or any of its Restricted Subsidiaries
under letters of credit and bank guarantees backstopped by letters of credit under the
Credit Facilities;




               (13) Indebtedness of Foreign Restricted Subsidiaries in an aggregate principal amount
not to exceed $50.0 million at any one time outstanding;




               (14) any Attributable Indebtedness; provided that the aggregate Indebtedness incurred
pursuant to this clause (14) shall not exceed $25 million at any time outstanding;




               (15) Indebtedness in respect of Receivables Program Obligations; and




               (16) the incurrence by the Company or any of its Restricted Subsidiaries of additional
Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time
outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance
or replace any Indebtedness incurred pursuant to this clause (16), not to exceed $100.0
million.



               (c) For purposes of determining compliance with this Section 4.09, in the event that an item
of proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt
described in clauses (1) through (16) above, or is entitled to be incurred pursuant to Section
4.09(a), the Company will be permitted to classify such item of Indebtedness on the date of its
incurrence (or later reclassify such Indebtedness in whole or in part) in any manner that complies
with this Section 4.09. In addition, the accrual of interest, accretion or amortization of
original issue discount, the payment of interest on any Indebtedness in the form of additional
Indebtedness with the same terms, and the payment of dividends on Disqualified Stock in the form of
additional shares of the same class of Disqualified Stock will not be treated as an incurrence of
Indebtedness; provided, in each such case, that the amount thereof is included in Fixed Charges of
the Company as accrued. Notwithstanding the foregoing, any Indebtedness outstanding pursuant to
the Credit Agreement on the date of this Supplemental Indenture will be deemed to have been
incurred pursuant to clause (1) of the definition of “Permitted Debt.”



               (d) Notwithstanding the foregoing, the maximum amount of Indebtedness that may be incurred
pursuant to this Section 4.09 shall not be deemed to be exceeded with respect to any outstanding
Indebtedness due solely to the result of fluctuations in the exchange rates of currencies.



               (e) For purposes of determining compliance with any U.S. dollar denominated restriction on the
incurrence of Indebtedness where the Indebtedness incurred is denominated in a different currency,
the amount of such Indebtedness will be the U.S. Dollar Equivalent determined on the date of the
incurrence of such Indebtedness; provided, however,



47









 




that if any such Indebtedness denominated in a different currency is subject to a Currency
Protection Agreement with respect to U.S. dollars covering all principal, premium, if any, and
interest payable on such Indebtedness, the amount of such Indebtedness expressed in U.S. dollars
will be as provided in such Currency Protection Agreement. The principal amount of any Permitted
Refinancing Indebtedness incurred in the same currency as the Indebtedness being refinanced will be
the U.S. Dollar Equivalent of the Indebtedness refinanced, except to the extent that (1) such U.S.
Dollar Equivalent was determined based on a Currency Protection Agreement, in which case the
Permitted Refinancing Indebtedness will be determined in accordance with the preceding sentence,
and (2)the principal amount of the Permitted Refinancing Indebtedness exceeds the principal amount
of the Indebtedness being refinanced, in which case the U.S. Dollar Equivalent of such excess, as
appropriate, will be determined on the date such Permitted Refinancing Debt is incurred.




          SECTION 4.10 Limitation on Asset Sales.




               (a) The Company will not, and will not permit any of its Restricted Subsidiaries to,
consummate an Asset Sale unless:




               (1) the Company (or the Restricted Subsidiary, as the case may be) receives
consideration at the time of such Asset Sale at least equal to the fair market value
(measured as of the date of the definitive agreement with respect to such Asset Sale) of the
assets or Equity Interests issued or sold or otherwise disposed of, as approved in good
faith by the Company’s Board of Directors; and




               (2) at least 75% of the consideration received in the Asset Sale by the Company or such
Restricted Subsidiary is in the form of cash or Cash Equivalents. For purposes of this
provision only (and specifically not for the purposes of the definition of “Net Proceeds”),
each of the following shall be deemed to be cash:




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




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




               (iii) the fair market value of (x) any assets (other than securities or current assets)
received by the Company or any Restricted Subsidiary that will be used or useful in a
Related Business, (y) Equity Interests in a Person that is a Restricted Subsidiary or in a
Person engaged in a Related Business that shall become a Restricted Subsidiary immediately
upon the acquisition of such Equity Interests by the Company or the applicable Restricted
Subsidiary or (z) a combination of (x) and (y); provided that the determination of the fair
market value of assets or Equity Interests in excess of $25.0



48









 






million received in any transaction or series of related transactions shall be
evidenced by an Officers’ Certificate delivered to the Trustee; and




               (iv) any Designated Noncash Consideration received by the Company or any Restricted
Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all
other Designated Noncash Consideration received pursuant to this clause (iv) since the Issue
Date that is at the time outstanding, not to exceed 5.0% of Consolidated Tangible Assets at
the time of receipt of such Designated Noncash Consideration, with the fair market value of
each item of Designated Noncash Consideration being measured at the time received and
without giving effect to subsequent changes in value.



               (b) Within a period of 360 days (commencing after the Issue Date) after the receipt of any Net
Proceeds of any Asset Sale (provided that if during such 360-day period after the receipt of any
such Net Proceeds, the Company (or the applicable Restricted Subsidiary) enters into a definitive
binding agreement committing it to apply such Net Proceeds in accordance with the requirements of
clause (B) or (D) of this Section 4.10(b) after such 360th day, such 360-day period will be
extended with respect to the amount of Net Proceeds so committed for a period not to exceed 180
days until such Net Proceeds are required to be applied in accordance with such agreement (or, if
earlier, until termination of such agreement)), the Company or such Restricted Subsidiary, at its
option, may apply an amount equal to the Net Proceeds from such Asset Sale:




               (A) to repay, prepay, redeem or repurchase Indebtedness (other
than securities) under Credit Facilities and, if such Indebtedness
is revolving credit Indebtedness, effect a permanent reduction in
the availability under such revolving credit facility (or effect a
permanent reduction in the availability under such revolving credit
facility regardless of the fact that no prepayment is required in
order to do so (in which case no prepayment shall be required));




               (B) to acquire Equity Interests in a Person that is engaged in
a Related Business that shall become a Restricted Subsidiary
immediately upon the acquisition of such Equity Interests by the
Company or the applicable Restricted Subsidiary;




               (C) to make capital expenditures in a Related Business;




               (D) to acquire other assets (other than securities or current
assets) that will be used or useful in a Related Business; or



49









 






               (E) to a combination of prepayments and investments permitted
by the foregoing clauses (A), (B), (C) and (D).



               (c) Pending the final application of such Net Proceeds, the Company or any Restricted
Subsidiary may temporarily reduce borrowings under the Credit Facilities or any other revolving
credit facility, if any, or otherwise invest such Net Proceeds in any manner not prohibited by this
Supplemental Indenture. Subject to the last sentence of this Section 4.10(c), on the 361st day (as
extended pursuant to the provisions in Section 4.10(b)) after an Asset Sale or such earlier date,
if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not to
apply the Net Proceeds relating to such Asset Sale as set forth in clause (A), (B), (C), (D) or (E)
of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net
Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted
in clauses (A), (B), (C), (D) or (E) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall
be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the “Net
Proceeds Offer”) on the Purchase Date, from all Holders (and, if required by the terms of any other
Indebtedness of the Company ranking pari passu with the Notes in right of payment and which has
similar provisions requiring the Company either to make an offer to repurchase or to otherwise
repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (the “Pari Passu
Indebtedness”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in
proportion to the respective principal amounts or accreted value, as the case may be, of the Notes
and any such Pari Passu Indebtedness) an aggregate principal amount of Notes (plus, if applicable,
an aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness)
equal to the Net Proceeds Offer Amount. The offer price in any Net Proceeds Offer shall be equal
to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as
the case may be, of such Pari Passu Indebtedness), plus accrued and unpaid interest thereon, if
any, to the Purchase Date; provided, however, that if at any time any non-cash consideration
received by the Company or any Restricted Subsidiary, as the case may be, in connection with any
Asset Sale is converted into or sold or otherwise disposed of for cash (other than interest
received with respect to any such non-cash consideration), then such conversion or disposition
shall be deemed to constitute an Asset Sale hereunder and the Net Proceeds thereof shall be applied
in accordance with this Section 4.10. The Company may defer the Net Proceeds Offer until there is
an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $35.0 million resulting
from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and
not just the amount in excess of $35.0 million, shall be applied as required pursuant to this
Section 4.10(c), and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the
earliest date that the Net Proceeds Offer Amount is equal to or in excess of $35.0 million).



               (d) To the extent that the aggregate principal amount of Notes (plus, if applicable, the
aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness)
validly tendered by the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount,
Notes of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders
thereof) will be purchased in accordance with Applicable Procedures if the Notes are Global
Securities, otherwise on a pro rata basis (based on the principal amount of the Notes and, if
applicable, the principal amount or accreted value, as the case may be, of any such Pari Passu
Indebtedness tendered and not withdrawn). To the extent that the aggregate



50









 




principal amount of the Notes (plus, if applicable, the aggregate principal amount or accreted
value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds
Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds
Offer Amount for general corporate purposes or for any other purpose not prohibited by this
Supplemental Indenture. Upon completion of any such Net Proceeds Offer, the Net Proceeds Offer
Amount shall be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business
Days or such longer period as may be required by applicable law.




               (e) The Company or the applicable Restricted Subsidiary, as the case may be, will comply with
the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations
thereunder to the extent such laws and regulations are applicable in connection with the repurchase
of Notes pursuant to a Net Proceeds Offer. To the extent that the provisions of any securities
laws or regulations conflict with the provisions of this Section 4.10 or Section 3.04, the Company
or such Restricted Subsidiary shall comply with the applicable securities laws and regulations and
shall not be deemed to have breached its obligations under this Supplemental Indenture by virtue
thereof.



          SECTION 4.11 Transactions with Affiliates.




               (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly
or indirectly, make any payment to, or sell, lease, transfer or otherwise dispose of any of its
properties or assets to, or purchase any property or assets from, or enter into or make or amend
any transaction, contract, agreement, loan, advance or guarantee with, or for the benefit of, any
Affiliate of the Company or any of its Restricted Subsidiaries (each, an “Affiliate Transaction”),
unless:




               (1) such Affiliate Transaction is on terms that are no less favorable to the Company or
the relevant Restricted Subsidiary than those that would have been obtained in a comparable
transaction at such time by the Company or such Restricted Subsidiary with a Person who is
not an Affiliate of the Company or such Restricted Subsidiary; and




               (2) the Company delivers to the Trustee:




     (a) with respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $10.0 million, a
resolution of the Board of Directors set forth in an Officers’ Certificate
certifying that such Affiliate Transaction complies with this Section 4.11 and that
such Affiliate Transaction has been approved by a majority of the disinterested
members of the Board of Directors; and




     (b) with respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $20.0 million, an
opinion as to the fairness to the Company or the relevant Restricted Subsidiary of
such Affiliate Transaction from a financial point of view issued by an accounting,
appraisal or investment banking firm of national standing.



51









 





               (b) The following items shall not be deemed to be Affiliate Transactions and, therefore, will
not be subject to Section 4.11(a):




               (1) transactions between or among the Company and/or its Restricted Subsidiaries or
exclusively between or among such Restricted Subsidiaries;




               (2) Restricted Payments that are permitted by Section 4.07;




               (3) reasonable fees and compensation paid to (including issuances and grants of Equity
Interests of the Company, employment agreements and stock option and ownership plans for the
benefit of), and indemnity and insurance provided on behalf of, officers, directors,
employees or consultants of the Company or any Restricted Subsidiary in the ordinary course
of business as approved in good faith by the Company’s Board of Directors or senior
management;




               (4) transactions pursuant to any agreement in effect on the Issue Date and disclosed in
the Prospectus Supplement (including by incorporation by reference), as in effect on the
Issue Date or as thereafter amended or replaced in any manner, that, taken as a whole, is
not more disadvantageous to the Holders of the Notes or the Company in any material respect
than such agreement as it was in effect on the Issue Date;




               (5) loans or advances to employees and officers of the Company and its Restricted
Subsidiaries permitted by clause (8) of the definition of “Permitted Investments.”




               (6) any transaction or series of transactions between the Company or any Restricted
Subsidiary and any of their joint ventures; provided that (a) such transaction or series of
transactions is in the ordinary course of business between the Company or such Restricted
Subsidiary and such joint venture and (b) with respect to any such Affiliate Transaction
involving aggregate consideration in excess of $10.0 million, such Affiliate Transaction
complies with Section 4.11(a)(1) and such Affiliate Transaction has been approved by the
Board of Directors of the Company;




               (7) any service, purchase, lease, supply or similar agreement entered into in the
ordinary course of business (including, without limitation, pursuant to any joint venture
agreement) between the Company or any Restricted Subsidiary and any Affiliate that is a
customer, client, supplier, purchaser or seller of goods or services, so long as the senior
management or Board of Directors of the Company determines in good faith that any such
agreement is on terms no less favorable to the Company or such Restricted Subsidiary than
those that could be obtained in a comparable arms’-length transaction with an entity that is
not an Affiliate;




               (8) the issuance and sale of Qualified Capital Stock; or




               (9) any transaction effected in connection with a Qualified Receivables Transaction.



52









 





          SECTION 4.12 Liens.




          The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or
indirectly, (1) assign or convey any right to receive income on any property or asset now owned or
hereafter acquired or (2) create, incur, assume or suffer to exist any Lien of any kind securing
Indebtedness or trade payables on any property or asset now owned or hereafter acquired or on any
income or profits therefrom other than, in each case, Permitted Liens, unless the Notes and the
Subsidiary Guarantees, as applicable, are





               (1) in the case of any Lien securing an Obligation that ranks pari passu with the Notes
or a Subsidiary Guarantee, effective provision is made to secure the Notes or such
Subsidiary Guarantee, as the case may be, at least equally and ratably with or prior to such
Obligation with a Lien on the same properties or assets of the Company or such Restricted
Subsidiary, as the case may be; and




               (2) in the case of any Lien securing an Obligation that is subordinated in right of
payment to the Notes or a Subsidiary Guarantee, effective provision is made to secure the
Notes or such Subsidiary Guarantee, as the case may be, with a Lien on the same properties
or assets of the Company or such Restricted Subsidiary, as the case may be, that is prior to
the Lien securing such subordinated obligation, in each case, for so long as such Obligation
is secured by such Lien.



          SECTION 4.13 Offer to Repurchase upon Change of Control.




               (a) If a Change of Control occurs, each Holder of Notes will have the right to require the
Company to purchase all or a portion (equal to $2,000 or an integral multiple of $1,000 in excess
thereof) of such Holder’s Notes (the “Change of Control Offer”) at a purchase price equal to 101%
of the aggregate principal amount thereof, plus accrued and unpaid interest, if any, to the date of
purchase (subject to the right of Holders of record on the relevant Regular Record Date to receive
interest due on an Interest Payment Date that is on or prior to the date fixed for redemption).



               (b) Within 30 days following any Change of Control, the Company shall mail a notice to each
Holder of Notes, with a copy to the Trustee, in accordance with the procedures set forth in Section
3.04, that a Holder must follow in order to have its Notes purchased.



               (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 purchase of
Notes pursuant to this Supplemental Indenture. To the extent that the provisions of any securities
laws or regulations conflict with the provisions of this Supplemental Indenture, the Company shall
comply with the applicable securities laws and regulations and will not be deemed to have breached
its obligations under any covenant of this Supplemental Indenture by virtue of this compliance.



               (d) The Company will not be required to make a Change of Control Offer if (1) 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 Supplemental Indenture



53









 




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) a notice of redemption has
been given prior to the Change of Control pursuant to Section 3.02, unless and until there is a
default in payment of the applicable Redemption Price.





     (e) A Change of Control Offer may be made in advance of a Change of Control and conditioned
upon the consummation of such Change of Control, if a definitive agreement with respect to the
Change of Control is in place at the time the Change of Control Offer is made.



          SECTION 4.14 Corporate Existence.




          Except as otherwise permitted by Article 5, the Company will do or cause to be done all things
necessary to preserve and keep in full force and effect its corporate existence.




          SECTION 4.15 Additional Subsidiary Guarantees.




          If, on or after the date of this Supplemental Indenture, the Company or any of its Restricted
Subsidiaries acquires or creates another Domestic Subsidiary (other than a Receivables Subsidiary
or an Excluded Subsidiary), then that newly acquired or created Domestic Subsidiary will become a
Guarantor and, within 10 Business Days of the date on which it was acquired or created, the Company
shall cause such Restricted Subsidiary to:





               (i) execute and deliver to the Trustee (a) a supplemental indenture in form and
substance satisfactory to the Trustee pursuant to which such Restricted Subsidiary shall
unconditionally Guarantee all of the Company’s obligations under the Notes and this
Indenture and (b) a notation of Subsidiary Guarantee in respect of its Subsidiary Guarantee
substantially in the form of Exhibit B; and




               (ii) deliver to the Trustee one or more Opinions of Counsel that such supplemental
indenture and Subsidiary Guarantee (a) has been duly authorized, executed and delivered by
such Restricted Subsidiary and (b) constitute valid and legally binding obligations of such
Restricted Subsidiary in accordance with their terms.



          SECTION 4.16 Compliance Certificate.




          In addition to the statements of the Company and the Guarantors required pursuant to Section
1004 of the Base Indenture, the Company will, so long as any of the Notes are outstanding, deliver
to the Trustee, as soon as possible, but in no event later than five days after any officer
becoming aware of any Default or Event of Default, an Officers’ Certificate specifying such Default
or Event of Default and what action the Company is taking or proposed to take with respect thereto.




          SECTION 4.17 Covenant Suspension.




          If on any date following the Issue Date the Notes have an Investment Grade Rating from both
Rating Agencies and no Default or Event of Default has occurred and is




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continuing under this Indenture, then beginning on that day and subject to the provisions of the
following paragraph, the following Sections in this Supplemental Indenture shall be suspended:





	 	(1)	 	Section 4.04,
	 
	 	(2)	 	Section 4.07,
	 
	 	(3)	 	Section 4.08,
	 
	 	(4)	 	Section 4.09,
	 
	 	(5)	 	Section 4.10,
	 
	 	(6)	 	Section 4.11, and
	 
	 	(7)	 	clause (a)(iii) of Section 5.01




(collectively, the “Suspended Covenants”). The period during which covenants are suspended pursuant
to this Section 4.17 is called the “Suspension Period.” The Company will notify the Trustee in
writing of the commencement and termination of any Suspension Period.




          In the event that the Company and the Restricted Subsidiaries are not subject to the Suspended
Covenants for any period of time as a result of the third preceding sentence and, subsequently, one
of the Rating Agencies withdraws its ratings or downgrades the rating assigned to the Notes so that
the Notes no longer have Investment Grade Ratings from both Rating Agencies or a Default or Event
of Default occurs and is continuing, then the Company and the Restricted Subsidiaries will from
such time and thereafter again be subject to the Suspended Covenants and compliance with the
Suspended Covenants with respect to Restricted Payments made after the time of such withdrawal,
Default or Event of Default will be calculated in accordance with the terms of Section 4.07 and
Section 4.09 as though such covenants had been in effect during the entire period of time from the
Issue Date. Notwithstanding the foregoing and any other provision of this Supplemental Indenture,
the Notes or the Subsidiary Guarantees, no Default or Event of Default shall be deemed to exist
under this Supplemental Indenture, the Notes or the Subsidiary Guarantees with respect to the
Suspended Covenants based on, and none of the Company or any of the Restricted Subsidiaries shall
bear any liability with respect to the Suspended Covenants for, (a) any actions taken or events
occurring during a Suspension Period (including without limitation any agreements, Liens, preferred
stock, obligations (including Indebtedness), or of any other facts or circumstances or obligations
that were incurred or otherwise came into existence during a Suspension Period) or (b) any actions
required to be taken at any time pursuant to any contractual obligation entered into during a
Suspension Period, regardless of whether such actions or events would have been permitted if the
applicable Suspended Covenants remained in effect during such period.



ARTICLE 5




SUCCESSORS



          SECTION 5.01 Merger, Consolidation or Sale of Assets.



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               (a) The Company will not, directly or indirectly, in a single transaction or series of related
transactions, consolidate or merge with or into any other Person or sell, assign, transfer, lease,
convey or otherwise dispose of all or substantially all of its properties or assets (determined on
a consolidated basis) to any Person or group of affiliated Persons, or permit any of its Restricted
Subsidiaries to enter into any such transaction or transactions if such transaction or
transactions, in the aggregate, would result in the sale, assignment, transfer, lease, conveyance
or other disposition of all or substantially all of the properties or assets of the Company and its
Restricted Subsidiaries taken as a whole to any other Person or group of Persons unless:




               (i) either:




                    (1) the Company shall be the surviving or continuing corporation or




                    (2) the Person formed by or surviving such consolidation or merger (if other than the
Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other
disposition has been made is (the “Surviving Entity”) a corporation organized and validly
existing under the laws of the United States, any State thereof or the District of Columbia;




               (ii) the Surviving Entity, if applicable, expressly assumes, by supplemental indenture
(in form and substance reasonably satisfactory to the Trustee), executed and delivered to
the Trustee, the due and punctual payment of the principal of and premium, if any, and
interest on all of the Notes and the performance of every covenant of the Notes and this
Indenture on the part of the Company to be performed or observed;




               (iii) immediately after giving pro forma effect to such transaction or series of
transactions and the assumption contemplated by clause (ii) above (including giving effect
to any Indebtedness and Acquired Debt, in each case, incurred or anticipated to be incurred
in connection with or in respect of such transaction), the Company or such Surviving Entity,
as the case may be, shall be (a) able to incur at least $1.00 of additional Indebtedness
(other than Permitted Debt) pursuant to Section 4.09 or (b) have a Fixed Charge Coverage
Ratio that is greater than the Fixed Charge Coverage Ratio of the Company immediately prior
to such consolidation, merger, sale, assignment, transfer, conveyance or other disposition;
provided, however, that this clause (iii) shall not apply during any Suspension Period;




               (iv) immediately after giving effect to such transaction or series of transactions and
the assumption contemplated by clause (ii) above (including, without limitation, giving
effect to any Indebtedness and Acquired Debt, in each case, incurred or anticipated to be
incurred and any Lien granted in connection with
or in respect of such transaction), no Default or Event of Default shall have occurred
and be continuing; and




               (v) the Company or the Surviving Entity, as the case may be, shall have delivered to
the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, sale, assignment, transfer, lease, conveyance



56









 






or other disposition
and, if a supplemental indenture is required in connection with such transaction, such
supplemental indenture, comply with the applicable provisions of this Supplemental Indenture
and that all conditions precedent in this Supplemental Indenture relating to such
transaction have been satisfied.



          Notwithstanding the foregoing, the merger of the Company with an Affiliate incorporated solely
for the purpose of reincorporating the Company in another jurisdiction shall be permitted without
regard to clause (iii) of the immediately preceding paragraph. For purposes of the foregoing, the
transfer (by lease, assignment, sale or otherwise, in a single transaction or series of
transactions) of all or substantially all of the properties or assets of one or more Restricted
Subsidiaries of the Company, the Capital Stock of which constitutes all or substantially all of the
properties and assets of the Company, shall be deemed to be the transfer of all or substantially
all of the properties and assets of the Company.



               (b) Each Guarantor will not, and the Company will not cause or permit any Guarantor to,
directly or indirectly, in a single transaction or series of related transactions, consolidate or
merge with or into any Person other than the Company or any other Guarantor unless:




               (i) if the Guarantor was a corporation or limited liability company under the laws of
the United States, any State thereof or the District of Columbia, the entity formed by or
surviving any such consolidation or merger (if other than the Guarantor) is a corporation or
limited liability company organized and existing under the laws of the United States, any
State thereof or the District of Columbia;




               (ii) such entity assumes by supplemental indenture all of the obligations of the
Guarantor under its Subsidiary Guarantee;




               (iii) immediately after giving effect to such transaction, no Default or Event of
Default shall have occurred and be continuing; and




               (iv) immediately after giving effect to such transaction and the use of any net
proceeds therefrom on a pro forma basis, the Company could satisfy the provisions of clause
(iii) of Section 5.01(a).



          Notwithstanding the foregoing, the requirements of this Section 5.01(b) will not apply to any
transaction pursuant to which such Guarantor is permitted to be released from its Subsidiary
Guarantee in accordance with the provisions of Section 10.02 of this Supplemental Indenture or
Section 1304 of the Base Indenture.



          SECTION 5.02 Successor Corporation Substituted.



          Upon any consolidation or merger of the Company or Guarantor or any sale, assignment,
transfer, lease, conveyance or other disposition of all or substantially all of the assets of the
Company or Guarantor in accordance with Section 5.01 in which the Company or Guarantor is not the
continuing corporation, the successor Person formed by such consolidation or into which the Company
or Guarantor is merged or to which such sale, assignment, transfer, lease, conveyance or other
disposition is made shall succeed to, and be substituted for, and may



57









 







exercise every right and
power of, the Company or Guarantor under this Indenture and the Notes or Subsidiary Guarantees, as
applicable, with the same effect as if such Surviving Entity had been named as such; provided,
however, that the Company shall not be released from its obligations under this Indenture or the
Notes in the case of a lease.



ARTICLE 6




DEFAULTS AND REMEDIES



          SECTION 6.01 Events of Default and Remedies.



               (a) In addition to those specified in Section 501 of the Base Indenture, each of the following
is an “Event of Default” with respect to the Notes:




               (1) failure by the Company or any of its Restricted Subsidiaries to comply with the
provisions of Section 5.01;




               (2) a default under any mortgage, indenture or instrument under which there may be
issued or by which there may be secured or evidenced any Indebtedness for money borrowed by
the Company or any Restricted Subsidiary of the Company (or the payment of which is
Guaranteed by the Company or any Restricted Subsidiary of the Company) whether such
Indebtedness or Guarantee now exists, or is created after the Issue Date, if that default:




               (A) is caused by a failure to pay principal of, or interest or
premium, if any, on such Indebtedness prior to the expiration of the
grace period provided in such Indebtedness on the date of such
default (a “Payment Default”); or




               (B) results in the acceleration of such Indebtedness prior to
express maturity; and




               (C) in each case, the principal amount of any such
Indebtedness, together with the principal amount of any other such
Indebtedness under which there has been a Payment Default or the
maturity of which has been so accelerated, aggregates $25.0 million,
or more;




               (3) one or more judgments in an aggregate amount in excess of $25.0 million (to the
extent not covered by independent third party insurance as to which the insurer has not
disclaimed coverage) shall have been rendered against the Company or any of its Restricted
Subsidiaries and such judgments remain undischarged,
unpaid or unstayed for a period of 60 days after such judgment or judgments become
final and nonappealable;


(b) Clause (3) of Section 501 of the Base Indenture shall not apply to the Notes.




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(c) Clauses (2), (4), (5), (6) and (7) of Sections 501 of the Base Indenture are deleted and
replaced in their entirety by the following:




          “(2) default in payment when due of the principal of or premium, if any, on the Notes
(including default in payment when due in connection with the purchase of Notes tendered pursuant
to a Change of Control Offer or Net Proceeds Offer on the date specified for such payment in the
applicable offer to purchase); or”



          “(4) a default in the observance or performance of any other covenant or agreement contained
in this Indenture or the Notes which default continues for a period of 60 days after the Company
receives written notice specifying the default (and demanding that such default be remedied) from
the Trustee or the Holders (with a copy to the Trustee) of at least 25% of the Outstanding
principal amount of the Notes; or”



          “(5) a court having jurisdiction in the premises enters (x) a decree or order for relief in
respect of the Company or any of its Restricted Subsidiaries that is a Significant Subsidiary in an
involuntary case or proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or (y) a decree or order adjudging the Company or any of its
Restricted Subsidiaries that is a Significant Subsidiary as bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company or any of its Restricted Subsidiaries that is a Significant Subsidiary under
any applicable federal or state law, or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company or any of its Restricted
Subsidiaries that is a Significant Subsidiary or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the continuance of any such decree or
order for relief or any such other decree or order unstayed and in effect for a period of 60
consecutive days; or”



          “(6) the Company or any of its Restricted Subsidiaries that is a Significant Subsidiary:




               (i) commences a voluntary case or proceeding under any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law or any other case or proceeding
to be adjudicated a bankrupt or insolvent;




               (ii) consents to the entry of a decree or order for relief in respect of the Company or
any of its Restricted Subsidiaries that is a Significant Subsidiary in an involuntary case
or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization
or other similar law or to the commencement of any bankruptcy or insolvency case or
proceeding against the Company or any of its Restricted Subsidiaries that is a Significant
Subsidiary;




               (iii) files a petition, as debtor, or answer or consent seeking reorganization or
relief under any applicable federal or state law;




               (iv) consents to the filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator



59









 







or similar
official of the Company or any of its Restricted Subsidiaries that is a Significant
Subsidiary or of any substantial part of its property;




               (v) makes an assignment for the benefit of creditors;




               (vi) admits in writing its inability to pay its debts generally as they become due; or



               (vii) takes corporate action in furtherance of any such action; or”


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



ARTICLE 7




LEGAL DEFEASANCE AND COVENANT DEFEASANCE



          SECTION 7.01 Option to Effect Legal Defeasance or Covenant Defeasance.



          The Company may, at the option of its Board of Directors evidenced by a resolution set forth
in an Officers’ Certificate, at any time, elect to have either Section 7.02 or 7.03 hereof be
applied to all Outstanding Notes upon compliance with the conditions set forth below in this
Article 7.



          SECTION 7.02 Legal Defeasance and Discharge.



          Upon the Company’s exercise under Section 7.01 hereof of the option applicable to this Section
7.02, the Company and the Guarantors will, subject to the satisfaction of the conditions set forth
in Section 7.04 hereof, be deemed to have been discharged from its obligations with respect to all
Outstanding Notes and to have each Guarantor’s obligations discharged with respect to its
Subsidiary Guarantee on the date the conditions set forth below are satisfied (hereinafter, “Legal
Defeasance”). For this purpose, Legal Defeasance means that the Company and the Guarantors will be
deemed to have paid and discharged the entire Indebtedness represented by the Outstanding Notes,
which will thereafter be deemed to be “Outstanding” only for the purposes of Section 7.05 hereof
and other Sections of this Supplemental Indenture referred to in (a) and (b) below, and to have
satisfied all their other obligations under such Notes and this Indenture (and the Trustee, on
demand of and at the expense of the Company, will execute proper instruments acknowledging the
same), except for the following provisions which
will survive until otherwise terminated or discharged hereunder: (a) the rights of Holders of
Outstanding Notes to receive payments in respect of the principal of, premium, if any, and interest
on such Notes when such payments are due from the trust fund described in Section 7.04 hereof, (b)
the Company’s and the Guarantors’ obligations with respect to the Notes and the Subsidiary
Guarantees under Sections 304, 305, 306, 1002 and 1003 of the Base Indenture, (c) the rights,
powers, trusts, duties and immunities of the Trustee under this Indenture, and the Company’s
obligations in connection therewith and (d) this Article 7. Subject to
compliance



60









 







with this
Article 7, the Company may exercise its option under this Section 7.02 notwithstanding the prior
exercise of its option under Section 7.03 hereof.



          SECTION 7.03 Covenant Defeasance.



          Upon the Company’s exercise under Section 7.01 hereof of the option applicable to this Section
7.03, the Company and each Restricted Subsidiary will, subject to the satisfaction of the
conditions set forth in Section 7.04 hereof, be released from their obligations under the covenants
contained in Sections 3.04, 4.03, 4.04, 4.05, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.15,
5.01(a)(iii) and 5.01(b)(iv) with respect to the Outstanding Notes, and the Events of Default set
forth in Sections 6.01(a)(2) or (3) of this Supplemental Indenture shall cease to apply, in each
case, on and after the date the conditions set forth in Section 7.04 are satisfied (hereinafter,
“Covenant Defeasance”), and the Notes will thereafter be deemed not “Outstanding” for the purposes
of any direction, waiver, consent or declaration or act of Holders (and the consequences of any
thereof) in connection with such covenants, but shall continue to be deemed “Outstanding” for all
other purposes hereunder (it being understood that it is intended 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, each Guarantor and each Restricted Subsidiary
may omit to comply with and will have not 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 will not constitute a
Default or Event of Default under Section 6.01 hereof or Section 501 of the Base Indenture, but,
except as specified above, the remainder of this Indenture and such Notes will be unaffected
hereby.



          SECTION 7.04 Conditions to Legal or Covenant Defeasance.



          The following will be the conditions to the application of either Section 7.02 or 7.03 hereof
to the Outstanding Notes:



          In order to exercise either Legal Defeasance or Covenant Defeasance:



               (a) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the
Holders of the Notes, cash in U.S. dollars, U.S. Government Obligations, or a combination thereof,
in such amounts as will be sufficient (without consideration of any reinvestment of interest), in
the opinion of a nationally recognized firm of independent public accountants delivered to the
Trustee, to pay the principal of, premium, if any, and interest on the Outstanding Notes on the
Stated Maturity or on the applicable Redemption Date, as the case may
be, and the Company must specify whether the Notes are being defeased to maturity or to a
particular Redemption Date;



               (b) in the case of Legal Defeasance, the Company shall have delivered to the Trustee an
Opinion of Counsel reasonably acceptable to the Trustee confirming that (1) the Company has
received from, or there has been published by, the Internal Revenue Service a ruling or (2) since
the Issue Date , there has been a change in the applicable federal income tax law, in either case
to the effect that, and based thereon such Opinion of Counsel shall confirm



61









 







that, the Holders of
the Outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a
result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in
the same manner and at the same times as would have been the case if such Legal Defeasance had not
occurred;



               (c) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an
Opinion of Counsel reasonably acceptable to the Trustee confirming that the Holders of the
Outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a
result of such Covenant Defeasance and will be subject to federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if such Covenant Defeasance
had not occurred;



               (d) no Default or Event of Default shall have occurred and be continuing either: (1) on the
date of such deposit (other than a Default or Event of Default resulting from the borrowing of
funds to be applied to such deposit); or (2) insofar as Events of Default from bankruptcy or
insolvency events are concerned, at any time in the period ending on the 91st day after the date of
deposit;



               (e) (such Legal Defeasance or Covenant Defeasance will not result in a breach or violation of,
or constitute a default under this Indenture or any material 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 (other than any such default under this Indenture resulting solely from the borrowing of
funds to be applied to such deposit);



               (f) the Company must have delivered to the Trustee an Opinion of Counsel to the effect that
after the 91st day following the deposit, the trust funds will not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights
generally;



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



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


          SECTION 7.05 Deposited Money and Governmental Securities to Be Held in Trust; Other Miscellaneous
Provisions.




     Subject to Section 7.06 hereof, all cash and U.S. Governmental Obligations (including the
proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for
purposes of this Section 7.05, the “Trustee”) pursuant to Section 7.04 hereof in respect of the
Outstanding Notes will be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Supplemental 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 such Notes of all sums due and to become due thereon



62









 







in respect of
principal, premium, if any, and interest, but such money need not be segregated from other funds
except to the extent required by law.



          The Company and the Guarantors will 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 7.04 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.



          Anything in this Article 7 to the contrary notwithstanding, the Trustee will 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 its as provided in Section 7.04 hereof which, in the opinion of a nationally
recognized firm of independent accountants expressed in a written certification thereof delivered
to the Trustee (which may be the opinion delivered under Section 7.04(a) hereof), are in excess of
the amount thereof that would then be required to be deposited to effect an equivalent Legal
Defeasance or Covenant Defeasance.



          SECTION 7.06 Reinstatement.



          If the Trustee or Paying Agent is unable to apply any cash or U.S. Government Obligations in
accordance with Section 7.02 or 7.03 hereof, as the case may be, by reason of any order or judgment
of any court or governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company’s obligations under this Indenture and the Notes will be revived and
reinstated as though no deposit had occurred pursuant to Section 7.02 or 7.03 hereof until such
time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section
7.02 or 7.03 hereof, 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 will be subrogated to the rights of the Holders of such Notes to receive
such payment from the money held by the Trustee or Paying Agent.



ARTICLE 8




SATISFACTION AND DISCHARGE



          SECTION 8.01 Satisfaction and Discharge of Indenture.



          This Indenture will be discharged and will cease to be of further effect (except as to the
surviving rights of registration of transfer or exchange of the Notes, as expressly provided for in
this Indenture) as to all Outstanding Notes when:



          (1) either:



               (a) all the Notes theretofore authenticated and delivered (except lost, stolen or destroyed
Notes which have been replaced or paid and Notes for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Company and thereafter repaid to the
Company or discharged from their trust as provided in this Indenture) have been delivered to the
Trustee for cancellation, or



63









 





               (b) all the Notes that have not been delivered to the Trustee for cancellation have become due
and payable by reason of the mailing of a notice of redemption or otherwise or will become due and
payable with one year; and the Company or any Guarantor has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust solely for the benefit of the Holders, cash in
U.S. dollars, non-callable U.S. Government Obligations or a combination thereof, in such amounts as
will be sufficient, in the opinion of a nationally recognized firm of independent public
accountants delivered to the Trustee, without consideration of any reinvestment of interest to pay
and discharge the entire Indebtedness (including all principal and accrued interest) on the Notes
not theretofore delivered to the Trustee for cancellation for principal, premium, if any, and
accrued interest to the date of maturity or redemption, as the case may be;



          (2) no Default or Event of Default shall have occurred and be continuing on the date of such
deposit or shall occur as a result of such deposit and such deposit will not result in a breach or
violation of or default under any other instrument to which the Company or any Guarantor is a party
or by which the Company or any Guarantor is bound;



          (3) the Company or any Guarantor has paid or caused to be paid all other sums payable under
this Indenture; and



          (4) The Company has delivered irrevocable written instructions to the Trustee to apply such
funds to the payment of the Notes at maturity or redemption, as the case may be.


In addition, the Company must deliver to the Trustee an Officers’ Certificate and an Opinion of
Counsel stating that all conditions precedent under this Supplemental Indenture relating to the
satisfaction and discharge of this Indenture have been complied with.




ARTICLE 9




AMENDMENT, SUPPLEMENT AND WAIVER



          SECTION 9.01 Without Consent of Holders of Notes.



          Notwithstanding Section 9.02 of this Supplemental Indenture, the Company, the Guarantors and
the Trustee may amend or supplement this Indenture, the Notes or the Subsidiary Guarantees without
the consent of any Holder of a Note:



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



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



               (c) to provide for the assumption of the Company’s obligations to Holders of Notes in the case
of a merger or consolidation or sale of all or substantially all of the Company’s assets;



64









 





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



               (e) to add any Person as a Guarantor;



               (f) to comply with any requirements of the Commission in order to effect or maintain the
qualification of the Indenture under the Trust Indenture Act;



               (g) to remove a Guarantor which, in accordance with the terms of this Indenture, ceases to be
liable in respect of its Subsidiary Guarantee;



               (h) to evidence and provide for the acceptance of appointment under the Indenture by a
successor Trustee;



               (i) to secure all of the Notes;



               (j) to add to the covenants of the Company or any Guarantor for the benefit of the Holders or
to surrender any right or power conferred upon the Company or any Guarantor;



               (k) to conform the text of this Supplemental Indenture, the Notes or the Subsidiary Guarantees
to any provision of the “Description of the Notes” in the Prospectus Supplement to the extent that
such provision in the “Description of the Notes” was intended to be a verbatim recitation of a
provision in this Supplemental Indenture, the Notes or the Subsidiary Guarantees;



               (l) to provide for the issuance of Additional Notes in accordance with the limitations set
forth in this Indenture as of the Issue Date; and



               (m) to comply with the provisions of DTC or the Trustee with respect to the provisions in this
Indenture and the Notes relating to transfers and exchanges of Notes or beneficial interests in
Notes.



          SECTION 9.02 With Consent of Holders of Notes.



          Except as provided below in this Section 9.02, the Company, the Guarantors and the Trustee may
amend or supplement this Indenture, the Notes and the Subsidiary Guarantees with the consent of the
Holders of at least a majority in aggregate principal amount of the Notes then Outstanding voting
as a single class (including, without limitation, consents obtained in connection with a tender
offer or exchange offer for, or purchase of, the Notes, and, subject to Sections 508 and 513 of the
Base Indenture) and any existing Default or Event of Default (other than a Default or Event of
Default in the payment of principal of, premium, if any, or interest on the Notes, except a payment
default resulting from an acceleration that has been rescinded) or
compliance with any provisions of this Indenture, the Notes or the Subsidiary Guarantees may
be waived with the consent of the Holders of a majority in aggregate principal amount of the then
Outstanding Notes (including, without limitation, consents obtained in connection with a tender
offer or exchange offer for, or purchase of, the Notes).



65









 





          It will not be necessary for the consent of the Holders of Notes under this Section 9.02 to
approve the particular form of any proposed amendment or waiver, but it will be sufficient if such
consent approves the substance of the proposed amendment or waiver.



          After an amendment, supplement or waiver under this Section 9.02 becomes effective, the
Company will mail to the Holders of Notes affected thereby a notice briefly describing the
amendment, supplement or waiver. Any failure of the Company to mail such notice, or any defect
therein, will not, however, in any way impair or affect the validity of any such amended or
supplemental indenture or waiver. However, without the consent of each Holder of Notes affected,
an amendment, supplement or waiver under this Section 9.02 may not (with respect to any Notes held
by a non-consenting Holder):



               (a) reduce the principal amount of Notes whose Holders must consent to an amendment,
supplement or waiver, including the waiver of Defaults or Events of Default, or to a rescission and
cancellation of a declaration of acceleration of the Notes;



               (b) reduce the rate of or change or have the effect of changing the time for payment of
interest, including defaulted interest, on any Notes;



               (c) reduce the principal of or change or have the effect of changing the fixed maturity of any
Notes or alter or waive the provisions with respect to the redemption of the Notes (other than
provisions relating to Section 3.04);



               (d) make any Notes payable in money other than that stated in the Notes;



               (e) make any change in the provisions of the Indenture relating to waivers of past Defaults or
the rights of Holders to receive payment of principal of, or interest or premium, if any, on the
Notes on or after the due date thereof or to bring suit to enforce such payment;



               (f) change the price payable by the Company for Notes repurchased pursuant Section 4.10 or
Section 4.13 or after the occurrence of a Change of Control, modify or change in any material
respect the obligation of the Company to make and consummate a Change of Control Offer or modify
any of the provisions or definitions with respect thereto;



               (g) waive a Default or Event of Default in the payment of principal of, or interest or premium
on, the Notes; provided that this clause (g) shall not limit the right of the Holders of at least a
majority in aggregate principal amount of the Outstanding Notes to rescind and cancel a declaration
of acceleration of the Notes following delivery of an acceleration notice as described in Article
FIVE of the Base Indenture;



               (h) release any Guarantor from any of its obligations under its Subsidiary Guarantee or this
Indenture, except as permitted by this Indenture;



               (i) contractually subordinate the Notes or the Subsidiary Guarantees to any other
Indebtedness; or



66









 





               (j) make any change in the preceding amendment and waiver provisions.



ARTICLE 10




GUARANTEES



          SECTION 10.01 Guarantees.



          Each Guarantor hereby agrees that Article THIRTEEN of the Base Indenture shall be applicable
to the Notes.



          SECTION 10.02 Release of Guarantor.



               (a) In addition to those set forth in Section 1304 of the Base Indenture, the Guarantee of any
Restricted Subsidiary will be automatically and unconditionally released and discharged if such
Guarantor is designated an Unrestricted Subsidiary in accordance with this Supplemental Indenture
or otherwise ceases to be a Restricted Subsidiary (including by way of liquidation or dissolution)
in a transaction permitted by this Indenture.



               (b) With respect to the Notes, Section 1304(ii) of the Base Indenture is deleted and replaced
in its entirety by the following:




“(ii) either Legal Defeasance or Covenant Defeasance occurs with
respect to such Notes in compliance with Article 7 of this
Supplemental Indenture or”



ARTICLE 11




MISCELLANEOUS



          SECTION 11.01 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 Trust Indenture Act, the provision required by
the Trust Indenture Act shall control.



          SECTION 11.02 Notices.



          Any notice or communication by the Company, any Guarantor or 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 or electronic transmission or overnight air courier
guaranteeing next-day delivery, to the other’s address:


If to the Company or any Guarantor: 


TreeHouse Foods, Inc.

Two Westbrook Corporate Center, Suite 1070




67









 







Westchester, Illinois 60154

Attention: Thomas E. O’Neill, General Counsel, Chief Administrative Officer,

Senior Vice President and Corporate Secretary

Facsimile No.: (708) 409-1062



With a copy to:



Winston & Strawn LLP

35 W. Wacker Drive

Chicago, Illinois 60601

Attention: Bruce A. Toth

Facsimile No.: (312) 558-5700



If to the Trustee:



Wells Fargo Bank, National Association

230 West Monroe Street, Suite 2900

Chicago, Illinois 60606

Attention: Gregory S. Clarke, Vice President

Facsimile No.: (312) 726-2158



The Company, Guarantors or 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 or Holders shall be deemed duly given and effective only upon
receipt.



          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 for the Notes. Any notice or communication shall also be
so mailed to any Person described in Trust Indenture Act § 313(c), to the extent required by the
Trust Indenture Act. 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 11.03 Communication by Holders of Notes with Other Holders of Notes.



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          Holders may communicate pursuant to Trust Indenture Act §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 Trust Indenture Act §312(c).



          SECTION 11.04 Certificate and Opinion as to Conditions Precedent.



          Upon any request or application by the Company to the Trustee to take any action under 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 11.05) 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 11.05) stating that, in the opinion of such
counsel, all such conditions precedent and covenants have been complied with.



          SECTION 11.05 Statements Required in Certificate or Opinion.



          Each certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture (other than a certificate provided pursuant to Trust Indenture Act §
314(a)(4)) shall comply with the provisions of Trust Indenture Act § 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 satisfied.



          SECTION 11.06 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 11.07 No Personal Liability of Directors, Officers, Employees and Stockholders.



69









 





          No past, present or future director, officer, employee, incorporator or stockholder of the
Company, any Guarantor or the Trustee, as such, shall have any liability for any obligations of the
Company or of the Guarantors under the Notes, this Indenture, 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.



          SECTION 11.08 Governing Law.



          THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS
SUPPLEMENTAL 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 11.09 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 11.10 Successors.



          All covenants and agreements of the Company in this Indenture and the Notes shall bind its
successors. All covenants and agreements of the Trustee in this Indenture shall bind its
successors.



          SECTION 11.11 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 11.12 Counterpart Originals.



          The parties may sign any number of copies of this Supplemental Indenture. Each signed copy
shall be an original, but all of them together shall represent the same agreement.



          SECTION 11.13 Table of Contents, Headings, Etc.



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



          SECTION 11.14 Force Majeure.



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



          SECTION 11.15 Note Purchases by Company and Affiliates.



          The Company and its Affiliates shall be permitted to purchase Notes, whether through private
purchase, open market purchase, tender offer, or otherwise. Such purchase or acquisition shall not
operate as or be deemed for any purpose to be a redemption of the Indebtedness represented by such
Notes. Any Notes purchased or acquired by the Company may be delivered to the Trustee and, upon
such delivery the Indebtedness represented thereby shall be deemed to be satisfied. The proviso to
the definition of “Outstanding” in the Base Indenture shall be applicable to any Notes acquired by
the Company and its Affiliates.



[Signatures on following page]









71









 











SIGNATURES



Dated as the date first written above.




	 	 	 	 	 
	 	COMPANY:




TREEHOUSE FOODS, INC.

 	 
	 	By:  	/s/ Dennis F. Riordan
 	 
	 	 	Name:  	Dennis F. Riordan 	 
	 	 	Title:  	Senior Vice President and Chief Financial Officer 	 
	 
	 	GUARANTORS:



BAY VALLEY FOODS, LLC

 	 
	 	By:  	/s/ Dennis F. Riordan
 	 
	 	 	Name:  	Dennis F. Riordan 	 
	 	 	Title:  	Senior Vice President and Treasurer 	 
	 
	 	EDS HOLDINGS, LLC

 	 
	 	By:  	/s/ Dennis F. Riordan
 	 
	 	 	Name:  	Dennis F. Riordan 	 
	 	 	Title:  	Chief Financial Officer 	 



S-1









 






	 	 	 	 	 



	 	 	 	 	 
	 	TRUSTEE:



WELLS FARGO BANK, NATIONAL ASSOCIATION

 	 
	 	By:  	/s/ Gregory S. Clarke
 	 
	 	 	Name:  	Gregory S. Clarke 	 
	 	 	Title:  	Vice President 	 
	 




S-2












 





EXHIBIT A




[FORM OF FACE OF NOTE]



			
	No.
	 	$[            ]

CUSIP No. 89469A AA2






7.750% Senior Notes due 2018




          TreeHouse Foods, Inc., a Delaware corporation, promises to pay to [         ], or registered
assigns, the principal sum of [          ] Dollars ($[      ]) on March 1, 2018.




          Interest Payment Dates: March 1 and September 1, commencing September 1, 2010.




          Record Dates: February 15 and August 15.




          Additional provisions of this Note are set forth on the other side of this Note.




	 	 	 	 	 
	 	TREEHOUSE FOODS, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 


Dated:




TRUSTEE’S CERTIFICATE OF

AUTHENTICATION



WELLS FARGO BANK, NATIONAL ASSOCIATION




as Trustee, certifies that this is one of the Global Notes referred to


in the within mentioned Indenture.




	 	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Authorized Signatory
	 	 






A-1









 






[GLOBAL NOTE LEGEND]




          THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE BASE 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 MAYBE REQUIRED PURSUANT TO SECTION 1107 OF THE BASE INDENTURE, (II) THIS GLOBAL
NOTE MAYBE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 1107 OF THE BASE INDENTURE, (III)
THIS GLOBAL NOTE MAYBE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 310 OF THE
BASE INDENTURE AND (IV) THIS GLOBAL NOTE MAYBE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR
WRITTEN CONSENT OF THE COMPANY.




          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 IS
REQUESTED BYAN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.








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[FORM OF REVERSE SIDE OF NOTE]




7.750% Senior Notes due 2018



          Capitalized terms used herein shall have the meanings assigned to them in the Indenture
referred to below unless otherwise indicated.




1. Interest




          TreeHouse Foods, Inc. (such corporation, and its successors and assigns under the Indenture
hereinafter referred to, being herein called the “Company”), promises to pay interest on the
principal amount of this Note at the rate per annum shown above. The Company will pay interest
semi-annually in arrears on March 1 and September 1 of each year, or, if such date is not a
Business Day, on the next succeeding Business Day (each, an “Interest Payment Date”), commencing
September 1, 2010.1 Interest on the Notes will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from March 2, 2010.2 Interest
will be computed on the basis of a 360-day year of twelve 30-day months.




2. Method of Payment




          The Company will pay interest on the Notes to the Persons who are registered Holders of Notes
at the close of business on the February 15 or August 15 next preceding the Interest Payment Date,
even if such Notes are canceled after such record date and on or before such Interest Payment Date,
except with respect to defaulted interest. The Notes will be payable as to principal, premium and
interest at the office or agency of the Company maintained for such purpose within or without the
City and State of New York, 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 register of Holders, and provided
that payment by wire transfer of immediately available funds will be required with respect to
principal of and interest and premium on all Global Notes, subject to Applicable Procedures, and
all other Notes the Holders of which shall have provided wire transfer instructions no later than
30 days immediately preceding the relevant due date for payment (or such other date as the Trustee
may accept in its judgment), to the Company or the Paying Agent. Such payment shall be in such coin
or currency of the United States of America at the time of payment is legal tender for payment of
public and private debts.




3. Paying Agent and Registrar




          Initially, Wells Fargo Bank, National Association (the Trustee ), will act as Paying Agent and
Registrar. The Company may appoint and change any Paying Agent or Registrar without notice to any
holder. The Company or any of its Subsidiaries may act as Paying Agent or Registrar.






 




			
	1	 	In the case of Notes issued on the Issue
Date.
	 
	2	 	In the case of Notes issued on the Issue
Date.




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4. Indenture




          The Company issued the Notes under an Indenture dated as of March 2, 2010 (the “Base
Indenture’), as supplemented by that First Supplemental Indenture dated March 2, 2010 (the
“Supplemental Indenture” and together with the Base Indenture, the “Indenture”), each among the
Company, the 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.C. § § 77aaa-77bbbb) as in effect on the date of the Indenture (the “Trust
Indenture Act”). Terms defined in the Indenture and not defined herein have the meanings ascribed
thereto in the Indenture. The Notes are subject to all such terms, and Holders are referred to the
Indenture and the Trust Indenture Act for a statement of those 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.




          The Company shall be entitled, subject to its compliance with Section 4.09 of the Supplemental
Indenture, to issue Additional Notes pursuant to Section 2.03 of the Supplemental Indenture. The
Initial Notes issued on the Issue Date and any Additional Notes will be treated as a single class
for all purposes under the Indenture.




5. Optional Redemption




          At any time prior to March 1, 2014, the Company may, at its option, redeem all or a part of
the Notes (which includes Additional Notes, if any), at a Redemption Price equal to 100% of the
principal amount of Notes redeemed plus the Applicable Premium as of, and accrued and unpaid
interest, if any, to the date of redemption (the “Redemption Date”), subject to the rights of
Holders of Notes on the relevant record date to receive interest due on the relevant interest
payment date.




          On or after March 1, 2014, the Company shall be entitled at its option to redeem all or a
portion of the Notes at the Redemption Prices (expressed in percentages of principal amount) set
forth below, plus accrued and unpaid interest, if any, thereon to the applicable Redemption Date
(subject to the right of Holders of record on the relevant date to receive interest due on the
relevant interest payment date), if redeemed during the twelve-month period beginning on March 1 on
the years indicated below:




	 	 	 	 	 
	 	 	Redemption	 
	Year	 	Price	 
	2014
	 	 	103.875	%
	2015
	 	 	101.938	%
	2016 and thereafter
	 	 	100.000	%






          In addition, at any time on or prior to March 1, 2013, the Company shall be entitled at its
option on one or more occasions to redeem Notes in an aggregate principal amount not to exceed 35%
of the aggregate principal amount of the Notes issued under the Supplemental Indenture at a
Redemption Price of 107.250% of the principal amount, plus accrued and unpaid interest to the
Redemption Date, with the Net Cash Proceeds from one or more Equity Offerings; provided, however,
that (1)at least 65% of such aggregate principal amount of Notes remains






A-4









 







Outstanding immediately after the occurrence of each such redemption; and (2) each such
redemption occurs within 120 days after the date of the closing of the related Equity Offering.




6. Notice of Redemption




          Notice of redemption will be mailed at least 30 days but not more than 60 days before the
Redemption Date to each Holder to be redeemed at his or her registered address.




7. Repurchase at Option of Holder




          If a Change of Control occurs, each Holder shall have the right to require that the Company
purchase all or a portion of such Holder’s Notes pursuant to the offer described in the Indenture
(the “Change of Control Offer”), at a purchase price equal to 101% of the principal amount thereof
plus accrued interest, if any, to the date of purchase (subject to the right of holders of record
on the relevant record date to receive interest due on an interest payment date that is on or prior
to the date fixed for redemption). Within 30 days following the date upon which the Change of
Control occurred, the Company must send a notice to each Holder that shall govern the terms of the
Change of Control Offer and shall be in compliance with the Indenture. Holders electing to have a
Note purchased pursuant to a Change of Control Offer shall be required to surrender the Note, with
the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, to the
Paying Agent at the address specified in the notice.




8. Denominations; Transfer; Exchange




          The Notes are in registered form without coupons in minimum denominations of $2,000 principal
and integral multiples of $1,000 in excess thereof. A Holder may transfer or exchange Notes in
accordance with the Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements or transfer documents and to pay any taxes and fees required by law or
permitted by the Indenture. The Registrar need not register the transfer of or exchange any Notes
selected for redemption (except, in the case of a Note to be redeemed in part, the portion of the
Note not to be redeemed) or any Notes for a period of 15 days before a selection of Notes to be
redeemed or 15 days before an Interest Payment Date.




9. Persons Deemed Owners




          The registered Holder of this Note may be treated as the owner of it for all purposes.




10. Discharge and Defeasance




          Subject to certain conditions, the Company at any time shall be entitled to terminate some or
all of its and the Guarantors’ obligations under the Notes and the Indenture if the Company
deposits with the Trustee money or U.S. Government Obligations for the payment of principal and
interest on the Notes to redemption or maturity, as the case may be.




11. Amendment, Waiver








A-5









 








          Subject to certain exceptions, the Indenture, the Subsidiary Guarantees or the Notes may be
amended or supplemented with the consent of the Holders of at least a majority in principal amount
of the then Outstanding Notes voting as a single class, and provisions of the Indenture, the
Subsidiary Guarantees or the Notes may be waived with the consent of the Holders of a majority in
principal amount of the then Outstanding Notes voting as a single class (including consents
obtained in connection with a tender offer or exchange offer for, or purchase of, the Notes).
Without the consent of any Holder, the Indenture, the Subsidiary Guarantees or the Notes may be
amended to, among other things, cure any ambiguity, defect or inconsistency; to provide for
uncertificated Notes in addition to or in place of certificated Notes; to provide for the
assumption of the Company’s or any Guarantor’s obligations to Holders of Notes in the case of a
merger or consolidation or sale of all or substantially all of the Company’s or any Guarantor’s
assets; or to make any change that would provide any additional rights or benefits to the Holders
of Notes or that does not adversely affect the legal rights under the Indenture of any such Holder.




12. Defaults and Remedies




          If any Event of Default (as defined in the Indenture) occurs and is continuing, the Trustee or
the Holders of at least 25% in principal amount of the then Outstanding Notes may declare all the
Notes to be due and payable by notice in writing to the Company and the Trustee specifying the
respective Event of Default and that it is a “notice of acceleration,” and the same shall become
immediately due and payable. Holders may not enforce the Indenture or the Notes except as provided
in the Indenture and the Trust Indenture Act. Subject to certain limitations, Holders of a majority
in principal amount of the then Outstanding Notes may direct the Trustee in its exercise of any
trust or power. However, the Trustee may refuse to follow any direction that conflicts with law or
the Indenture or that the Trustee determines may be unduly prejudicial to the rights of other
Holders of Notes or that may involve the Trustee in personal liability. 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. Guarantee




          The full and punctual payment by the Company of the principal of, premium, if any, and
interest on the Notes is fully and unconditionally guaranteed on a joint and several senior
unsecured basis by each of the Guarantors.




14. Trustee Dealings with the Company




          Subject to certain limitations imposed by the Trust Indenture Act, the Trustee under the
Indenture, in its individual or any other capacity, may become the owner or pledgee of Notes and
may otherwise deal with and collect obligations owed to it by the Company or its Affiliates and may
make loans to, accept deposits from, and perform services for the Company or its Affiliates, and
may otherwise deal with the Company or its Affiliates, as if it were not the Trustee.




15. No Recourse Against Others





A-6












 





          Any past, present, or future director, officer, employee, incorporator or stockholder, as
such, of the Company, any Guarantors or the Trustee shall not have any liability for any
obligations of the Company or any Guarantor under the Notes, the Indenture, the Guarantees or for
any claim based on, in respect of or by reason of such obligations or their creation. By accepting
a Note, each Holder waives and releases all such liability. The waiver and release are part of the
consideration for the issue of the Notes.




16. Authentication




          This Note shall not be valid until an authorized signatory of the Trustee (or an
authenticating agent) signs the certificate of authentication on the other side of this Note.




17. 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 rights of
survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).




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, including 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 such notice and reliance may be placed only on the other
identification numbers placed thereon.




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 PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE
APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.




           






          The Company will furnish to any Holder upon written request and without charge to the Holder a
copy of the Indenture. Requests may be made to:




TreeHouse Foods, Inc.

Two Westbrook Corporate Center, Suite 1070

Westchester, Illinois 60154

Attention:  Thomas E. O’Neill, General Counsel, Chief Administrative Officer, Senior Vice

                     President and Corporate Secretary

Facsimile No.: (708) 409-1062




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ASSIGNMENT FORM



To assign this Note, fill in the form below:



I or we assign and transfer this Note to




     (Print or type assignee’s name, address and zip code)



     (Insert assignee’s soc. sec. or tax I.D. No.)


and irrevocably appoint 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 other side of this Note.	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	 

	 	 	 	Signature	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Signature Guarantee:	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 
	Signature must be guaranteed	 	Signature	 	 	 	 






          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
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.








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[TO BE ATTACHED TO GLOBAL SECURITIES]




SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE



The following increases or decreases in this Global Note have been made:



	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	Principal amount of	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	this Global Note	 	Signature of
	 	 	 	 	Amount of decrease	 	Amount of increase	 	following such	 	authorized officer
	Date of	 	in Principal amount	 	in Principal amount	 	decrease or	 	of Trustee or
	Exchange	 	of this Global Note	 	of this Global Note	 	increase	 	Custodian
	 





A-9









 






OPTION OF HOLDER TO ELECT PURCHASE




          If you want to elect to have this Note purchased by the Company pursuant to either Section
4.10 or Section 4.13 of the Supplemental Indenture, as applicable, check the corresponding box:




	 	 	 	 	 	 	 
	 

	 	  Section 4.10 o
	 	 	 	Section 4.13 o






          If you want to elect to have only part of this Note purchased by the Company pursuant to
Section 4.10 or Section 4.13 of the Supplemental Indenture, as applicable, state the amount in
principal amount: $                    




	 	 	 	 	 	 	 	 	 
	Dated:

	 	 	 	Your Signature:	 	 	 	 
	 

	 	 	 	 	 	(Sign exactly as your name appears
on the other side of this Note.)	 	 






	 	 	 	 	 
	Signature Guarantee:
	 	 	 	 
	 

	 	(Signature must be guaranteed)	 	 






          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.










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EXHIBIT B

FORM OF NOTATION OF SUBSIDIARY GUARANTEE




          For value received, each Guarantor (which term includes any successor Person under the
Indenture), jointly and severally, unconditionally guarantees, to the extent set forth in and
subject to the provisions in the Indenture, dated as of March 2, 2010 (the “Base Indenture”), as
supplemented by that First Supplemental Indenture dated as of March 2, 2010 (the “Supplemental
Indenture” and together with the Base Indenture, the “Indenture”), among TreeHouse Foods, Inc., as
issuer (the “Company”), the Guarantors from time to time party thereto and Wells Fargo Bank,
National Association, as trustee (the “Trustee”), the full and punctual payment of the principal of
and interest on the Notes when due, whether at maturity, by acceleration, redemption or otherwise,
and all other amounts due and payable under the Indenture and the Notes by the Company (all the
foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor
further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part,
without notice or further assent from such Guarantor and that such Guarantor will remain bound
hereunder notwithstanding any extension or renewal of any Guaranteed Obligation.




          The obligations of the Guarantors to the Holders of Notes and to the Trustee pursuant to the
Guarantee and the Indenture are expressly set forth in Article THIRTEEN of the Base Indenture and
Article 10 of the Supplemental Indenture and reference is hereby made such provisions for the
precise terms of the Guarantee. Each Holder, by accepting the same agrees to and shall be bound by
such provisions. This Guarantee is subject to release as and to the extent set forth in the Base
Indenture and Sections 7.02, 8.01 and 10.02 of the Supplemental Indenture. Capitalized terms used
herein and not defined are used herein as so defined in the Indenture.




	 	 	 	 	 
	 	[GUARANTOR]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




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