exv4w5






Exhibit 4.5




 





BUILDERS FIRSTSOURCE, INC.




AND EACH OF THE GUARANTORS PARTY HERETO



SECOND PRIORITY SENIOR SECURED FLOATING RATE NOTES DUE 2016



 






INDENTURE



Dated as of [                    ], 2010



 





 






Wilmington Trust Company



Trustee



 





 









 









 








CROSS-REFERENCE TABLE*




	 	 	 
	Trust Indenture	 	 
	Act Section	 	Indenture Section
	310(a)(1)
	 	7.10
	(a)(2)
	 	7.10
	(a)(3)
	 	N.A.
	(a)(4)
	 	N.A.
	(a)(5)
	 	7.10
	(b)
	 	7.10
	(c)
	 	N.A.
	311(a)
	 	7.11
	(b)
	 	7.11
	(c)
	 	N.A.
	312(a)
	 	2.05
	(b)
	 	13.03
	(c)
	 	13.03
	313(a)
	 	7.06
	(b)(1)
	 	10.04
	(b)(2)
	 	7.06; 7.07
	(c)
	 	7.06;13.02
	(d)
	 	7.06
	314(a)
	 	4.03;13.02; 13.05
	(b)
	 	N.A.
	(c)(1)
	 	13.04
	(c)(2)
	 	13.04
	(c)(3)
	 	N.A.
	(d)
	 	10.04
	(e)
	 	13.05
	(f)
	 	N.A.
	315(a)
	 	7.01
	(b)
	 	7.05; 13.02
	(c)
	 	7.01
	(d)
	 	7.01
	(e)
	 	6.11
	316(a) (last sentence)
	 	2.09
	(a)(1)(A)
	 	6.05
	(a)(1)(B)
	 	6.04
	(a)(2)
	 	N.A.
	(b)
	 	6.07
	(c)
	 	2.12
	317(a)(1)
	 	6.08
	(a)(2)
	 	6.09
	(b)
	 	2.04
	318(a)
	 	13.01
	(b)
	 	N.A.
	(c)
	 	13.01








 




			
	N.A.	 	means not applicable.
	 
	*	 	This Cross Reference Table is not part of the Indenture.




 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE 1

	DEFINITIONS AND INCORPORATION

	BY REFERENCE

	 
	 	 	 	 
	Section 1.01 Definitions
	 	 	1	 
	Section 1.02 Other Definitions
	 	 	28	 
	Section 1.03 Incorporation by Reference of Trust Indenture Act
	 	 	29	 
	Section 1.04 Rules of Construction
	 	 	29	 
	 
	 	 	 	 
	ARTICLE 2

	THE NOTES

	 
	 	 	 	 
	Section 2.01 Form and Dating
	 	 	30	 
	Section 2.02 Execution and Authentication
	 	 	30	 
	Section 2.03 Registrar and Paying Agent
	 	 	31	 
	Section 2.04 Paying Agent to Hold Money in Trust
	 	 	31	 
	Section 2.05 Holder Lists
	 	 	31	 
	Section 2.06 Transfer and Exchange
	 	 	31	 
	Section 2.07 Replacement Notes
	 	 	41	 
	Section 2.08 Outstanding Notes
	 	 	41	 
	Section 2.09 Treasury Notes
	 	 	41	 
	Section 2.10 Temporary Notes
	 	 	42	 
	Section 2.11 Cancellation
	 	 	42	 
	Section 2.12 Defaulted Interest
	 	 	42	 
	 
	 	 	 	 
	ARTICLE 3

	REDEMPTION AND PREPAYMENT

	 
	 	 	 	 
	Section 3.01 Notices to Trustee
	 	 	42	 
	Section 3.02 Selection of Notes to Be Redeemed or Purchased
	 	 	43	 
	Section 3.03 Notice of Redemption
	 	 	43	 
	Section 3.04 Effect of Notice of Redemption
	 	 	44	 
	Section 3.05 Deposit of Redemption or Purchase Price
	 	 	44	 
	Section 3.06 Notes Redeemed or Purchased in Part
	 	 	44	 
	Section 3.07 Optional Redemption
	 	 	45	 
	Section 3.08 Mandatory Redemption
	 	 	45	 
	Section 3.09 Offer to Purchase by Application of Excess Proceeds
	 	 	45	 
	 
	 	 	 	 
	ARTICLE 4

	COVENANTS

	 
	 	 	 	 
	Section 4.01 Payment of Notes
	 	 	47	 
	Section 4.02 Maintenance of Office or Agency
	 	 	47	 
	Section 4.03 Reports
	 	 	48	 
	Section 4.04 Compliance Certificate
	 	 	48	 
	Section 4.05 Taxes
	 	 	49	 
	Section 4.06 Stay, Extension and Usury Laws
	 	 	49	 
	Section 4.07 Restricted Payments
	 	 	49	 
	Section 4.08 Dividend and Other Payment Restrictions Affecting Subsidiaries
	 	 	52	 
	Section 4.09 Incurrence of Indebtedness and Issuance of Preferred Stock
	 	 	53	 






i









 






	 	 	 	 	 
	 	 	Page	 
	Section 4.10 Asset Sales
	 	 	57	 
	Section 4.11 Transactions with Affiliates
	 	 	58	 
	Section 4.12 Liens
	 	 	59	 
	Section 4.13 Business Activities
	 	 	59	 
	Section 4.14 Corporate Existence
	 	 	60	 
	Section 4.15 Offer to Repurchase Upon Change of Control
	 	 	60	 
	Section 4.16 Limitation on Issuances and Sales of Equity Interests in Wholly-Owned Subsidiaries
	 	 	61	 
	Section 4.17 Limitation on Issuances of Guarantees of Indebtedness
	 	 	62	 
	Section 4.18 Payments for Consent
	 	 	62	 
	Section 4.19 Additional Note Guarantees
	 	 	63	 
	Section 4.20 Designation of Restricted and Unrestricted Subsidiaries
	 	 	63	 
	 
	 	 	 	 
	ARTICLE 5

	SUCCESSORS

	 
	 	 	 	 
	Section 5.01 Merger, Consolidation, or Sale of Assets
	 	 	63	 
	Section 5.02 Successor Corporation Substituted
	 	 	64	 
	 
	 	 	 	 
	ARTICLE 6

	DEFAULTS AND REMEDIES

	 
	 	 	 	 
	Section 6.01 Events of Default
	 	 	65	 
	Section 6.02 Acceleration
	 	 	67	 
	Section 6.03 Other Remedies
	 	 	67	 
	Section 6.04 Waiver of Past Defaults
	 	 	67	 
	Section 6.05 Control by Majority
	 	 	67	 
	Section 6.06 Limitation on Suits
	 	 	68	 
	Section 6.07 Rights of Holders of Notes to Receive Payment
	 	 	68	 
	Section 6.08 Collection Suit by Trustee
	 	 	68	 
	Section 6.09 Trustee May File Proofs of Claim
	 	 	68	 
	Section 6.10 Priorities
	 	 	69	 
	Section 6.11 Undertaking for Costs
	 	 	69	 
	 
	 	 	 	 
	ARTICLE 7

	TRUSTEE AND COLLATERAL TRUSTEE

	 
	 	 	 	 
	Section 7.01 Duties of Trustee
	 	 	69	 
	Section 7.02 Rights of Trustee
	 	 	71	 
	Section 7.03 Individual Rights of Trustee
	 	 	71	 
	Section 7.04 Trustee’s Disclaimer
	 	 	71	 
	Section 7.05 Notice of Defaults
	 	 	71	 
	Section 7.06 Reports by Trustee to Holders of the Notes
	 	 	72	 
	Section 7.07 Compensation and Indemnity
	 	 	72	 
	Section 7.08 Replacement of Trustee
	 	 	73	 
	Section 7.09 Successor Trustee by Merger, etc
	 	 	74	 
	Section 7.10 Eligibility; Disqualification
	 	 	74	 
	Section 7.11 Preferential Collection of Claims Against Company
	 	 	74	 
	Section 7.12 Appointment
	 	 	74	 
	 
	 	 	 	 
	ARTICLE 8

	LEGAL DEFEASANCE AND COVENANT DEFEASANCE

	 
	 	 	 	 
	Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance
	 	 	74	 
	Section 8.02 Legal Defeasance and Discharge
	 	 	74	 






ii









 






	 	 	 	 	 
	 	 	Page	 
	Section 8.03 Covenant Defeasance
	 	 	75	 
	Section 8.04 Conditions to Legal or Covenant Defeasance
	 	 	75	 
	Section 8.05 Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions
	 	 	77	 
	Section 8.06 Repayment to Company
	 	 	77	 
	Section 8.07 Reinstatement
	 	 	77	 
	 
	 	 	 	 
	ARTICLE 9

	AMENDMENT, SUPPLEMENT AND WAIVER

	 
	 	 	 	 
	Section 9.01 Without Consent of Holders of Notes
	 	 	78	 
	Section 9.02 With Consent of Holders of Notes
	 	 	79	 
	Section 9.03 Compliance with Trust Indenture Act
	 	 	80	 
	Section 9.04 Revocation and Effect of Consents
	 	 	80	 
	Section 9.05 Notation on or Exchange of Notes
	 	 	80	 
	Section 9.06 Trustee to Sign Amendments, etc.
	 	 	81	 
	 
	 	 	 	 
	ARTICLE 10

	COLLATERAL AND SECURITY

	 
	 	 	 	 
	Section 10.01 Equal and Ratable Sharing of Collateral by Holders of Parity Lien Debt
	 	 	81	 
	Section 10.02 Ranking of Parity Liens
	 	 	81	 
	Section 10.03 Relative Rights
	 	 	82	 
	Section 10.04 Compliance with Trust Indenture Act
	 	 	82	 
	Section 10.05 Further Assurances; Insurance
	 	 	83	 
	Section 10.06 Release of Liens in Respect of Notes
	 	 	83	 
	 
	 	 	 	 
	ARTICLE 11

	NOTE GUARANTEES

	 
	 	 	 	 
	Section 11.01 Guarantee
	 	 	84	 
	Section 11.02 Limitation on Guarantor Liability
	 	 	85	 
	Section 11.03 Execution and Delivery of Note Guarantee
	 	 	85	 
	Section 11.04 Guarantors May Consolidate, etc., on Certain Terms
	 	 	85	 
	Section 11.05 Releases
	 	 	86	 
	 
	 	 	 	 
	ARTICLE 12

	SATISFACTION AND DISCHARGE

	 
	 	 	 	 
	Section 12.01 Satisfaction and Discharge
	 	 	87	 
	Section 12.02 Application of Trust Money
	 	 	88	 
	 
	 	 	 	 
	ARTICLE 13

	MISCELLANEOUS

	 
	 	 	 	 
	Section 13.01 Trust Indenture Act Controls
	 	 	88	 
	Section 13.02 Notices
	 	 	88	 
	Section 13.03 Communication by Holders of Notes with Other Holders of Notes
	 	 	89	 
	Section 13.04 Certificate and Opinion as to Conditions Precedent
	 	 	90	 
	Section 13.05 Statements Required in Certificate or Opinion
	 	 	90	 
	Section 13.06 Rules by Trustee and Agents
	 	 	90	 
	Section 13.07 No Personal Liability of Directors, Officers, Employees and Stockholders
	 	 	90	 
	Section 13.08 Governing Law
	 	 	91	 
	Section 13.09 No Adverse Interpretation of Other Agreements
	 	 	91	 
	Section 13.10 Successors
	 	 	91	 
	Section 13.11 Severability
	 	 	91	 






iii









 






	 	 	 	 	 
	 	 	Page	 
	Section 13.12 Counterpart Originals
	 	 	91	 
	Section 13.13 Table of Contents, Headings, etc.
	 	 	91	 






iv









 





EXHIBITS




	 	 	 
	Exhibit A

	 	FORM OF NOTE
	Exhibit B

	 	FORM OF CERTIFICATE OF TRANSFER
	Exhibit C

	 	FORM OF CERTIFICATE OF EXCHANGE
	Exhibit D

	 	FORM OF CERTIFICATE OF ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
	Exhibit E

	 	FORM OF NOTATION OF GUARANTEE
	Exhibit F

	 	FORM OF SUPPLEMENTAL INDENTURE






v









 





     INDENTURE dated as of [                    ], 2010, by and among Builders FirstSource, Inc., a Delaware
corporation, the Guarantors (as defined), and Wilmington Trust Company, a Delaware banking
corporation, as Trustee.



     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 (as defined) of the Second Priority Senior Secured
Floating Rate Notes due 2016 (the “Notes”):



ARTICLE 1

DEFINITIONS AND INCORPORATION

BY REFERENCE




Section 1.01 Definitions.




     “2012 Notes” means, collectively, the Floating Rate Notes due 2012 issued by the Company.



     “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 Restricted Subsidiary of, such specified Person; and




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



     “Additional Notes” means additional Notes (other than the Initial Notes) issued under this
Indenture in accordance with Sections 2.02 and 4.09 hereof, as part of the same series as the
Initial Notes.



     “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, means 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;
provided that beneficial ownership of 10% or more of the Voting Stock of a Person will be deemed to
be control. For purposes of this definition, the terms “controlling,” “controlled by” and “under
common control with” have correlative meanings.



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



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



     “Asset Sale” means:




     (1) the sale, lease, conveyance or other disposition of any assets or rights; 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
Section 4.15 hereof and/or Section 5.01 hereof and not by Section 4.10 hereof; and



1









 






     (2) the issuance 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, none of the following items will be deemed to be an Asset Sale:




     (1) any single transaction or series of related transactions that involves assets
having an estimated good faith value of, or in the case of a lease, aggregate lease payments
of, less than $3.0 million;




     (2) a transfer of assets between or among the Company and its Restricted Subsidiaries;




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




     (4) the sale or lease of products, services or accounts receivable in the ordinary
course of business and any sale or other disposition of damaged, worn-out or obsolete assets
in the ordinary course of business;




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




     (6) a Restricted Payment that does not violate Section 4.07 hereof or a Permitted
Investment;




     (7) the sale or transfer of (or the sale or transfer of interests in) the Company’s or
any of its Restricted Subsidiaries’ accounts receivable and related assets pursuant to a
receivables facility in a transaction permitted hereunder; and




     (8) the deemed sale, transfer or sale-leaseback of the Company’s facility located in
Port St. Lucie, Florida, in connection with the construction and subsequent lease of such
facility.



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



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



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



     “Board of Directors” means:



2









 






     (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 thereof; and




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



     “Borrowing Base” means the sum of: (1) 80% of the book value of accounts receivable, and (2)
65% of the book value of inventory, in each case of the Company and its Restricted Subsidiaries on
a consolidated basis in accordance with GAAP as of the end of the Company’s most recently ended
fiscal quarter for which financial statements are available; provided, however, that the Borrowing
Base as of the end of such most recently ended fiscal quarter shall include accounts receivable and
inventory acquired by the Company or its Restricted Subsidiaries in connection with an acquisition
(whether structured as a purchase of equity, a purchase of all or substantially all of the assets
of an entity, a merger, or otherwise) completed after the end of such fiscal quarter.



     “Business Day” means any day other than a Legal Holiday.



     “Capital Lease Obligation” means, at the time any determination 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 prepared 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 interests
(whether general or limited) or membership interests; 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,




     but excluding from all of the foregoing any debt securities convertible into Capital Stock,
whether or not such debt securities include any right of participation with Capital Stock.



     “Cash Equivalents” means:




     (1) United States dollars;




     (2) securities issued or directly and fully guaranteed or insured by the United States
government or any agency or instrumentality of the United States government (provided that
the



3









 




full faith and credit of the United States is pledged in support of those securities)
having maturities of not more than six months from the date of acquisition;





     (3) certificates of deposit and eurodollar time deposits with maturities of six months
or less from the date of acquisition, bankers’ acceptances with maturities not exceeding six
months and overnight bank deposits, in each case, with any lender party to the Credit
Agreement or with any domestic commercial bank having capital and surplus in excess of
$500.0 million and a Thomson Bank Watch Rating of “B” or better;




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




     (5) commercial paper having one of the two highest ratings obtainable from Moody’s or
S&P and, in each case, maturing within six months after the date of acquisition; and




     (6) money market funds at least 95% of the assets of which constitute Cash Equivalents
of the kinds described in clauses (1) through (5) of this definition.



     “Casualty Event” means any taking under power of eminent domain or similar proceeding and any
insured loss, in each case relating to property or other assets that constituted Collateral and
resulting in Net Proceeds of at least $1.0 million.



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




     (1) the direct or indirect 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 properties or assets of the Company and its Subsidiaries
taken as a whole to any “person” (as that term is used in Section 13(d) of the Exchange Act)
other than a Principal or a Related Party of a Principal;




     (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), other than the
Principal and their Related Parties, becomes the Beneficial Owner, directly or indirectly,
of more than 50% of the Voting Stock of the Company, measured by voting power rather than
number of shares; or




     (4) during any period of two consecutive years, individuals who at the beginning of
such period constituted the Board of Directors of the Company (together with any new
directors whose election to such Board of Directors or whose nomination for election was
approved by a vote of a majority of the members of the Board of Directors of the Company,
which members comprising such majority are then still in office and were either directors at
the beginning of such period or whose election or nomination for election was previously so
approved) cease for any reason to constitute a majority of the Board of Directors of the
Company, as applicable.



     “Class” means (1) in the case of Parity Lien Debt, every Series of Parity Lien Debt, taken
together, and (2) in the case of Priority Lien Debt, every Series of Priority Lien Debt, taken
together.



     “Clearstream” means Clearstream Banking, S.A.



4









 





     “Collateral” means all properties and assets at any time owned or acquired by the Company or
any of the other Pledgors, except:




     (1) Excluded Assets;




     (2) any properties and assets in which the Collateral Trustee is required to release
its Liens pursuant to the Collateral Trust Agreement; and




     (3) any properties and assets that no longer secure the Notes or any Obligations in
respect thereof pursuant to the Collateral Trust Agreement,



     provided that, in the case of clauses (2) and (3), if such Liens are required to be released
as a result of the sale, transfer or other disposition of any properties or assets of the Company
or any other Pledgor, such assets or properties will cease to be excluded from the Collateral if
the Company or any other Pledgor thereafter acquires or reacquires such assets or properties.



     “Collateral Trust Agreement” means the Collateral Trust Agreement, dated as of February 11,
2005, as cured and reformed by the Confirmation of Reformation of the Collateral Trust Agreement
dated as of December 14, 2007, and effective as of February 11, 2005, by and among Builders
FirstSource, Inc., the other Pledgors from time to time party thereto, Wachovia Bank, National
Association (as successor to UBS AG Stamford Branch), as Administrative Agent under the Credit
Agreement, Wilmington Trust Company, as trustee under the indenture governing the Floating Rate
Notes due 2012 of Builders FirstSource, Inc., UBS AG, Stamford Branch, as Priority Collateral
Trustee, and UBS AG, Stamford Branch, as Parity Collateral Trustee, as the same may hereafter be
amended, modified, supplemented, extended, renewed, restated or replaced from time to time.



     “Collateral Trustee” means each of Wachovia Bank, National Association, in its capacity as
collateral trustee for the benefit of the holders of the Priority Lien Obligations and
[___], in its capacity as collateral trustee for the holders of the Parity Lien Obligations,
unless the context specifies only one of the foregoing capacities, together with successors in such
capacities; provided, however, that the Collateral Trustee may act as the collateral trustee,
collateral agent or any similar title that the Collateral Trustee deems necessary or convenient for
the purpose of perfecting the Priority Liens and the Parity Liens in the Collateral.



     “Common Collateral” means Collateral that secures each Series of Secured Debt of the same
Class.



     “Company” means Builders FirstSource, Inc. and any and all successors thereto.



     “Consolidated Cash Flow” means, with respect to any specified 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 such
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



5









 






     (3) the Fixed Charges of such Person and its Restricted Subsidiaries for such period,
to the extent that such Fixed Charges were deducted in computing such Consolidated Net
Income; plus




     (4) all non-recurring gains and losses and all restructuring charges; plus




     (5) depreciation, amortization (including amortization of 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) 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




     (6) non-cash items increasing such Consolidated Net Income for such period, other than
the accrual of revenue in the ordinary course of business;



     in each case, on a consolidated basis and determined in accordance with GAAP.



     “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 (or loss) of any Person that is not a Restricted Subsidiary or that
is accounted for by the equity method of accounting will be included only to the extent of
the amount of dividends or similar distributions paid in cash to the specified Person or a
Restricted Subsidiary of the Person;




     (2) the Net Income of any Restricted Subsidiary will 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 cumulative effect of a change in accounting principles will be excluded;




     (4) the fees, costs, and expenses paid or payable during such period in cash by the
Company or any of its Subsidiaries in connection with the Transactions (including, without
limitation, payments to option holders in connection with the Transactions) will be
excluded;




     (5) the non-cash interest expense in respect of Attributable Debt related to the deemed
sale, transfer or sale-leaseback of the Company’s facility located in Port St. Lucie,
Florida, in connection with the construction and subsequent lease of such facility will be
excluded; and




     (6) notwithstanding clause (1) above, the Net Income of any Unrestricted Subsidiary
will be excluded, whether or not distributed to the specified Person or one of its
Subsidiaries.



     “Corporate Trust Office of the Trustee” will be at the address of the Trustee specified in
Section 13.02 hereof or such other address as to which the Trustee may give notice to the Company.



6









 





     “Credit Agreement” means that certain Loan and Security Agreement, dated December 14, 2007, as
amended by Amendment No. 1 dated March 3, 2008, among Builders FirstSource, Inc., the Borrowers
party thereto, the Guarantors party thereto, the Lenders party thereto, Wachovia Bank, National
Association, as Administrative Agent and Collateral Trustee, UBS Securities LLC, as Syndication
Agent, General Electric Capital Corporation, as Documentation Agent, and Wachovia Capital Markets,
LLC and UBS Securities LLC, as Joint Lead Bookrunners, including any related notes, Guarantees,
collateral documents, instruments, and agreements executed in connection therewith, and, in each
case, as amended, restated, modified, renewed, refunded, replaced (whether upon or after
termination or otherwise) or refinanced (including by means of sales of debt securities to
institutional investors) in whole or in part from time to time, whether in one or more agreements.



     “Credit Agreement Agent” means, at any time, the Person serving at such time as the “Agent” or
“Administrative Agent” under the Credit Agreement or any other representative then most recently
designated in accordance with the applicable provisions of the Credit Agreement, together with its
successors in such capacity.



     “Credit Facilities” means, one or more debt facilities (including, without limitation, the
Credit Agreement) or commercial paper facilities, in each case, with banks or other lenders
providing for revolving credit loans, term loans, receivables financing (including through the sale
of receivables to such lenders or to special purpose entities formed to borrow from such lenders
against such receivables) or letters of credit, in each case, as amended, restated, modified,
renewed, refunded, replaced (whether upon or after termination or otherwise) or refinanced
(including by means of sales of debt securities to institutional investors) in whole or in part
from time to time, whether in one or more agreements.



     “Custodian” means the Trustee, as custodian with respect to the Notes in global form, or any
successor entity thereto.



     “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.



     “Definitive Note” means a certificated Note registered in the name of the Holder thereof and
issued in accordance with Section 2.06 hereof, substantially in the form of Exhibit A1 hereto
except that such Note shall not bear the Global Note Legend and shall not have the “Schedule of
Exchanges of Interests in the Global Note” attached thereto.



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



     “Disqualified Stock” means any Capital Stock that, by its terms (or by the terms of any
security into which it is convertible, or for which it is exchangeable, in each case, at the option
of the holder of the Capital Stock), 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 of the Capital Stock, 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 of the Capital Stock have the right
to require the Company to repurchase such Capital Stock upon the occurrence of a change of control
or an asset sale will not constitute Disqualified Stock if the terms of such Capital Stock provide
that the Company may not repurchase or redeem any such Capital Stock pursuant to such provisions
unless such repurchase or redemption complies with Section 4.07 hereof. The amount of Disqualified
Stock deemed to be outstanding at any time for



7









 




purposes of this Indenture will be the maximum amount that the Company and its Restricted
Subsidiaries may become obligated to pay upon the maturity of, or pursuant to any mandatory
redemption provisions of, such Disqualified Stock, exclusive of accrued dividends.




     “Domestic Restricted Subsidiary” means any Restricted Subsidiary of the Company that was
formed under the laws of the United States or any state of the United States or the District of
Columbia or that guarantees or otherwise provides direct credit support for any Indebtedness of the
Company.



     “equally and ratably” means, in reference to sharing of Liens or proceeds thereof as between
holders of Secured Obligations within the same Class, that such Liens or proceeds:




     (1) will be allocated and distributed first to the Secured Debt Representative for each
outstanding Series of Secured Debt within that Class, for the account of the holders of such
Series of Secured Debt, ratably in proportion to the principal of, and interest and premium
(if any), reimbursement obligations (contingent or otherwise) with respect to letters of
credit, if any, outstanding (whether or not drawings have been made under such letters of
credit) and Hedging Obligations on each outstanding Series of Secured Debt within that Class
when the allocation or distribution is made, and thereafter




     (2) will be allocated and distributed (if any remain after payment in full of all of
the principal of, and interest and premium (if any) and reimbursement obligations
(contingent or otherwise) with respect to letters of credit, if any, outstanding (whether or
not drawings have been made on such letters of credit) on all outstanding Secured
Obligations within that Class) to the Secured Debt Representative for each outstanding
Series of Secured Obligations within that Class, for the account of the holders of any
remaining Secured Obligations within that Class, ratably in proportion to the aggregate
unpaid amount of such remaining Secured Obligations within that Class due and demanded (with
written notice to the applicable Secured Debt Representative and the Collateral Trustee)
prior to the date such distribution is made.



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



     “Equity Offering” means an offer and sale of Capital Stock (other than Disqualified Stock) of
the Company.



     “Euroclear” means Euroclear Bank, S.A./N.V., as operator of the Euroclear system.



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



     “Excluded Assets” means each of the following:




     (1) any lease, license, contract, property right or agreement to which the Company or
any other Pledgor is a party or any of its rights or interests thereunder if and only for so
long as the grant of a Lien under the Security Documents will constitute or result in a
breach, termination or default under any such lease, license, contract, property right or
agreement or would result in a violation of applicable law (other than to the extent that
any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or
9-409 of the Uniform Commercial Code of any relevant jurisdiction or any other applicable
law or principles of equity); provided that such lease, license, contract, property right or
agreement will be an Excluded Asset only to the extent and for so long as the consequences
specified above will result and will cease to be an



8









 






Excluded Asset and will become subject to the Lien granted under the Security
Documents, immediately and automatically, at such time as such consequences will no longer
result;




     (2) real property owned by the Company or any other Pledgor that has a Fair Market
Value not exceeding $3.0 million determined on the date of this Indenture or the date such
property is acquired, as applicable, or any real property subject to an existing mortgage or
leased by the Company or any other Pledgor;




     (3) all “securities” of any of the Company’s “affiliates” (as the terms “securities”
and “affiliates” are used in Rule 3-16 of Regulation S-X under the Securities Act);




     (4) any other property or asset in which a Lien cannot be perfected by the filing of a
financing statement under the Uniform Commercial Code of the relevant jurisdiction, so long
as the estimated good faith market value of such property and asset does not exceed $1.0
million individually or $10.0 million in the aggregate for all property and assets excluded
under this clause (4);




     (5) equipment that is subject to a Lien securing a purchase money obligation or Capital
Lease Obligation incurred in accordance with Section 4.09 hereof if the contract or other
agreement in which such Lien is granted (or the documentation providing for such purchase
money obligation or Capital Lease Obligation) validly prohibits the creation of any other
Lien on such equipment;




     (6) Equity Interests of a Subsidiary that is organized under the laws of a jurisdiction
other than the United States or any state thereof or the District of Columbia constituting
34% of the total voting power of all outstanding voting stock of such Subsidiary, provided
that any such Equity Interests constituting “stock entitled to vote” within the meaning of
Treasury Regulation Section 1.956 2(c)(2) shall be treated as voting stock for purposes of
this paragraph; and




     (7) deposit accounts with, in the aggregate, up to $10.0 million in cash and Cash
Equivalents.



     “Existing Disqualified Stock” means any Disqualified Stock in existence on the date of this
Indenture.



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



     “Fair Market Value” means the value that would be paid by a willing buyer to an unaffiliated
willing seller in a transaction not involving distress or necessity of either party, determined in
good faith by the Board of Directors of the Company (unless otherwise provided in this Indenture).



     “Fixed Charge Coverage Ratio” means with respect to any specified Person for any period, the
ratio of the Consolidated Cash Flow of such Person for such period to the Fixed Charges of such
Person for such period. In the event that the specified Person or any of its Restricted
Subsidiaries incurs, assumes, guarantees, repays, repurchases, redeems, defeases or otherwise
discharges any Indebtedness (other than ordinary working capital borrowings and issuances of
letters of credit) or issues, repurchases or redeems preferred stock subsequent to the commencement
of the period for which the Fixed Charge Coverage Ratio is being calculated and on or prior to the
date on which the event for which the calculation of the Fixed Charge Coverage Ratio is made (the
“Calculation Date”), then the Fixed Charge



9









 




Coverage Ratio will 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 applicable four full fiscal quarter 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 and including increases in
ownership of Restricted Subsidiaries, during the four full fiscal quarter reference period
or subsequent to such reference period and on or prior to the Calculation Date will be given
pro forma effect (in accordance with Regulation S-X under the Securities Act) as if they had
occurred on the first day of the four full fiscal quarter reference period;




     (2) the Consolidated Cash Flow attributable to discontinued operations, as determined
in accordance with GAAP, and operations or businesses (and ownership interests therein)
disposed of prior to the Calculation Date, will be excluded;




     (3) the Fixed Charges attributable to discontinued operations, as determined in
accordance with GAAP, and operations or businesses (and ownership interests therein)
disposed of prior to the Calculation Date, will 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;




     (4) any Person that is a Restricted Subsidiary on the Calculation Date will be deemed
to have been a Restricted Subsidiary at all times during such four full fiscal quarter
period;




     (5) any Person that is not a Restricted Subsidiary on the Calculation Date will be
deemed not to have been a Restricted Subsidiary at any time during such four full fiscal
quarter period; and




     (6) if any Indebtedness bears a floating rate of interest, the interest expense on such
Indebtedness will be calculated as if the rate in effect on the Calculation Date had been
the applicable rate for the entire period (taking into account any Hedging Obligation
applicable to such Indebtedness).



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




     (1) the consolidated interest expense of such Person and its Restricted Subsidiaries
for such period, whether paid or accrued, including, without limitation, amortization of
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, commissions, discounts and other fees and charges incurred in respect of letter
of credit or bankers’ acceptance financings, and net of the effect of all payments made or
received pursuant to Hedging Obligations in respect of interest rates, excluding the
amortization of deferred financing costs; plus




10











 






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




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




     (4) the product of (a) all dividends, whether paid or accrued and whether or not in
cash, on any series of preferred stock of such Person or any of its Restricted Subsidiaries,
other than dividends 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, determined on a consolidated basis in accordance with
GAAP.



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



     “Global Note Legend” means the legend set forth in Section 2.06(f)(2) hereof, which is
required to be placed on all Global Notes issued under this Indenture.



     “Global Notes” means, individually and collectively, each of the Restricted Global Notes and
the Unrestricted Global Notes deposited with or on behalf of and registered in the name of the
Depositary or its nominee, substantially in the form of Exhibit A hereto and that bears the Global
Note Legend and that has the “Schedule of Exchanges of Interests in the Global Note” attached
thereto, issued in accordance with Section 2.01, 2.06(b)(3), 2.06(b)(4), or 2.06(d)(2) hereof.



     “Government Securities” means securities that are:




     (1) direct obligations of the United States of America for the timely payment of which
its full faith and credit is pledged, or




     (2) obligations of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the timely payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United States of
America,


which, in either case, are not callable or redeemable at the option of the issuers thereof, and
shall also include a depository receipt issued by a bank (as defined in Section 3(a)(2) of the
Securities Act), as custodian with respect to any such Government Securities or a specific payment
of principal of or interest on any such Government Securities held by such custodian for the
account of the holder of such depository receipt; provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of the Government
Securities or the specific payment of principal of or interest on the Government Securities
evidenced by such depository receipt.




     “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



11









 




respect thereof, of all or any part of any Indebtedness (whether arising by virtue of
partnership arrangements, or by agreements to keep-well, to purchase assets, goods, securities or
services, to take or pay or to maintain financial statement conditions or otherwise).




     “Guarantors” means each of:




     (1) Builders FirstSource—Northeast Group, LLC; Builders FirstSource—Texas GenPar, LLC;
Builders FirstSource—MBS, LLC; Builders FirstSource—Texas Group, L.P.; BFS Texas, LLC;
Builders FirstSource—South Texas, L.P.; Builders FirstSource—Texas Installed Sales, L.P.;
BFS IP, LLC; Builders FirstSource—Intellectual Property, L.P.; Builders FirstSource
Holdings, Inc.; Builders FirstSource—Dallas, LLC; Builders FirstSource—Florida, LLC;
Builders FirstSource—Florida Design Center, LLC; Builders FirstSource—Ohio Valley, LLC; BFS,
LLC; Builders FirstSource—Atlantic Group, LLC; Builders FirstSource—Southeast Group, LLC;
CCWP, Inc.; Builders FirstSource—Raleigh, LLC; Builders FirstSource—Colorado Group, LLC;
Builders FirstSource—Colorado, LLC; and




     (2) any other Subsidiary of the Company that executes a Note Guarantee in accordance
with the provisions of this Indenture,


and their respective successors and assigns, in each case, until the Note Guarantee of such Person
has been released in accordance with the provisions of this Indenture.




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




     (1) interest rate swap agreements (whether from fixed to floating or from floating to
fixed), interest rate cap agreements and interest rate collar agreements;




     (2) other agreements or arrangements designed to manage interest rates or interest rate
risk; and




     (3) other agreements or arrangements designed to protect such Person against
fluctuations in currency exchange rates or commodity prices,


in each case, in reasonable relation to the business of the Company and the Restricted
Subsidiaries, and not for speculative purposes.




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



     “Immaterial Subsidiary” means, as of any date, any Restricted Subsidiary whose total assets,
as of that date, are less than $500,000 and whose total revenues for the most recent twelve-month
period do not exceed $500,000; provided that a Restricted Subsidiary will not be considered to be
an Immaterial Subsidiary if it, directly or indirectly, guarantees or otherwise provides direct
credit support for any Indebtedness of the Company.



     “Indebtedness” means, with respect to any specified Person, any indebtedness of such Person
(excluding accrued expenses and trade payables), whether or not contingent:




     (1) in respect of borrowed money;



12









 






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




     (3) in respect of banker’s acceptances and letters of credit;




     (4) representing Capital Lease Obligations;




     (5) representing the balance deferred and unpaid of the purchase price of any property
or services due more than twelve months after such property is acquired or such services are
completed; or




     (6) representing any Hedging Obligations,


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




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



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



     “Initial Notes” means the first
$143,735,000 million aggregate principal amount of Notes
issued under this Indenture on the date hereof.



     “insolvency or liquidation proceeding” means:




     (1) any case commenced by or against the Company or any other Pledgor under Title 11,
U.S. Code or any similar federal or state law for the relief of debtors, any other
proceeding for the reorganization, recapitalization or adjustment or marshalling of the
assets or liabilities of the Company or any other Pledgor, any receivership or assignment
for the benefit of creditors relating to the Company or any other Pledgor or any similar
case or proceeding relative to the Company or any other Pledgor or its creditors, as such,
in each case whether or not voluntary;




     (2) any liquidation, dissolution, marshalling of assets or liabilities or other winding
up of or relating to the Company or any other Pledgor, in each case whether or not voluntary
and whether or not involving bankruptcy or insolvency; or




     (3) any other proceeding of any type or nature in which substantially all claims of
creditors of the Company or any other Pledgor are determined and any payment or distribution
is or may be made on account of such claims.



     “Institutional Accredited Investor” means an institution that is an “accredited investor” as
defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act, who are not also QIBs.



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



13









 




officers and employees made in the ordinary course of business), 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 Restricted 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 will be deemed to have made an Investment on the date of any such sale or disposition equal
to the Fair Market Value of the Company’s Investments in such Subsidiary that were not sold or
disposed of in an amount determined as provided in the final paragraph of Section 4.07 hereof. The
acquisition by the Company or any Restricted Subsidiary of the Company of a Person that holds an
Investment in a third Person will be deemed to be an Investment by the Company or such Restricted
Subsidiary in such third Person in an amount equal to the Fair Market Value of the Investments held
by the acquired Person in such third Person in an amount determined as provided in the final
paragraph of the Section 4.07 hereof. Except as otherwise provided in this Indenture, the amount
of an Investment will be determined at the time the Investment is made and without giving effect to
subsequent changes in value.




     “Legal Holiday” means a Saturday, a Sunday or a day on which banking institutions in the City
of New York or at a place of payment are required by law, regulation or executive order to remain
closed. If a payment date is a Legal Holiday at a place of payment, payment may be made at that
place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue on such
payment for the intervening period.



     “LIBOR Rate” means, for each quarterly period during which any Note is outstanding subsequent
to the initial quarterly period, the rate determined by the Company (notice of such rate to be sent
to the trustee by the Company on the date of determination thereof) equal to the applicable British
Bankers’ Association LIBOR rate for deposits in U.S. dollars for a period of three months as
reported by any generally recognized financial information service as of 11:00 a.m. (London time)
two Business Days prior to the first day of such quarterly period; provided that, if no such
British Bankers’ Association LIBOR rate is available to the Company, the LIBOR Rate for the
relevant quarterly period shall instead be the rate at which UBS Securities LLC or one of its
affiliate banks offers to place deposits in U.S. dollars with first-class banks in the London
interbank market for a period of three months at approximately 11:00 a.m. (London time) two
Business Days prior to the first day of such quarterly period, in amounts equal to $1.0 million.
Notwithstanding the foregoing, the LIBOR Rate for the initial quarterly period shall be .2725%.



     “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.



     “Lien Sharing and Priority Confirmation” means:




     (1) as to any Series of Parity Lien Debt, the written agreement of the holders of such
Series of Parity Lien Debt or their representative, as set forth in this Indenture, credit
agreement or other agreement governing such Series of Parity Lien Debt, for the enforceable
benefit of all holders of each existing and future Series of Priority Lien Debt, each
existing and future Priority Lien Representative and each existing and future holder of
Permitted Prior Liens:



14









 






     (a) that all Parity Lien Obligations will be and are secured equally and
ratably by all Parity Liens at any time granted by the Company or any other Pledgor
to secure any Obligations in respect of such Series of Parity Lien Debt, upon
property constituting Common Collateral for such Series of Parity Lien Debt and each
existing and future Series of Parity Lien Debt, and that all such Parity Liens will
be enforceable by the Collateral Trustee for the benefit of all holders of Parity
Lien Obligations equally and ratably;




     (b) that the holders of Obligations in respect of such Series of Parity Lien
Debt are bound by the provisions of the Collateral Trust Agreement, including the
provisions relating to the ranking of Parity Liens and the order of application of
proceeds from the enforcement of Parity Liens; and




     (c) consenting to and directing the Collateral Trustee to perform its
obligations under the Collateral Trust Agreement and the Security Documents; and




     (2) as to any Series of Priority Lien Debt, the written agreement of the holders of
such Series of Priority Lien Debt or their representative, as set forth in the credit
agreement or other agreement governing such Series of Priority Lien Debt, for the
enforceable benefit of all holders of each existing and future Series of Parity Lien Debt,
each existing and future Parity Lien Representative and each existing and future holder of
Permitted Prior Liens:




     (a) that all Priority Lien Obligations will be and are secured equally and
ratably by all Priority Liens at any time granted by the Company or any other
Pledgor to secure any Obligations in respect of such Series of Priority Lien Debt,
upon property constituting Common Collateral for such Series of Priority Lien Debt
and each existing and future Series of Priority Lien Debt, and that all Priority
Liens with respect to such Priority Lien Debt will be enforceable by the Collateral
Trustee for the benefit of all holders of Priority Lien Obligations;




     (b) that the holders of Obligations in respect of such Series of Priority Lien
Debt are bound by the provisions of the Collateral Trust Agreement, including the
provisions relating to the ranking of Priority Liens and the order of application of
proceeds from enforcement of Priority Liens; and




     (c) consenting to and directing the Collateral Trustee to perform its
obligations under the Collateral Trust Agreement and the Security Documents.



     “Moody’s” means Moody’s Investors Service, Inc.



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




     (1) any gain (loss), together with any related provision for taxes on such gain (loss),
realized in connection with: (a) any Asset Sale; or (b) the disposition of any securities by
such Person or any of its Restricted Subsidiaries or the extinguishment of any Indebtedness
of such Person or any of its Restricted Subsidiaries; and




     (2) any extraordinary gain (loss), together with any related provision for taxes on
such extraordinary gain (loss).



15









 





     “Net Proceeds” means the aggregate cash proceeds received by the Company or any of its
Restricted Subsidiaries in respect of any Casualty Event or 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 the direct costs relating to such Asset Sale, including,
without limitation, legal, accounting and investment banking fees, sales commissions, any
relocation expenses incurred as a result of the Asset Sale, any repayment of Indebtedness that was
permitted to be secured by the assets sold or lost in such Asset Sale or Casualty Event, any taxes
paid or payable as a result of the Asset Sale, in each case, after taking into account any
available tax credits or deductions and any tax sharing arrangements, 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 of the
Indebtedness 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 of the
Company or any of its Restricted Subsidiaries to declare a default on such other
Indebtedness or cause the payment of the Indebtedness 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.



     “Non-U.S. Person” means a Person who is not a U.S. Person.



     “Note Documents” means this Indenture, the Notes, the Collateral Trust Agreement and the
Security Documents.



     “Note Guarantee” means the Guarantee by each Guarantor of the Company’s obligations under this
Indenture and the Notes, executed pursuant to the provisions of this Indenture.



     “Notes” has the meaning assigned to it in the preamble to this Indenture. The Initial Notes
and the Additional Notes shall be treated as a single class for all purposes under this Indenture,
and unless the context otherwise requires, all references to the Notes shall include the Initial
Notes and any Additional Notes.



     “Obligations” means any principal (including reimbursement obligations with respect to letters
of credit whether or not drawn), interest (including, to the extent legally permitted, all interest
accrued thereon after the commencement of any insolvency or liquidation proceeding at the rate,
including any applicable post-default rate, even if such interest is not enforceable, allowable or
allowed as a claim in such proceeding), premium (if any), fees, indemnifications, reimbursements,
expenses and other liabilities payable under the documentation governing any Indebtedness.



     “Officer” means, with respect to any Person, the Chairman of the Board, the Chief Executive
Officer, the President, the Chief Operating Officer, the Chief Financial Officer, the Treasurer,
any Assistant Treasurer, the Controller, the Secretary, any Assistant Secretary or any
Vice-President of such Person.



16









 





     “Officers’ Certificate” means a certificate signed on behalf of the Company by two Officers of
the Company, one of whom must be the principal executive officer, the principal financial officer,
the treasurer or the principal accounting officer of the Company, that meets the requirements of
Section 13.05 hereof.



     “Opinion of Counsel” means an opinion from legal counsel who is reasonably acceptable to the
Trustee, that meets the requirements of Section 13.05 hereof. The counsel may be an employee of or
counsel to the Company, any Subsidiary of the Company or the Trustee.



     “Parity Lien” means a Lien granted by a Security Document to the Collateral Trustee, at any
time, upon any property of the Company or any other Pledgor to secure Parity Lien Obligations.



     “Parity Lien Debt” means:




     (1) the Notes issued on the date of this Indenture;




     (2) any Indebtedness issued in exchange for, or the net proceeds of which are used to
renew, refund, refinance, replace, defease, or discharge 2012 Notes; and




     (3) any other Indebtedness of the Company (including Additional Notes) that is secured
equally and ratably with the Notes by a Parity Lien that was permitted to be incurred and so
secured under each applicable Secured Debt Document; provided that:




     (a) the net proceeds are used to refund, refinance, replace, defease, discharge
or otherwise acquire or retire Priority Lien Debt or other Parity Lien Debt; or




     (b) on the date of incurrence of such Indebtedness, after giving pro forma
effect to the incurrence thereof and the application of the proceeds therefrom, the
Secured Leverage Ratio would not be greater than 4.0 to 1.0;


provided, further, in the case of any Indebtedness referred to in clause (3) of this definition:





     (a) on or before the date on which such Indebtedness is incurred by the
Company, such Indebtedness is designated by the Company, in an Officers’ Certificate
delivered to each Parity Lien Representative and the Collateral Trustee, as “Parity
Lien Debt” for the purposes of this Indenture and the Collateral Trust Agreement;
provided that no Series of Secured Debt may be designated as both Parity Lien Debt
and Priority Lien Debt;




     (b) such Indebtedness is governed by an indenture, credit agreement or other
agreement that includes a Lien Sharing and Priority Confirmation and the Company
delivers an Officers’ Certificate to each Parity Lien Representative and the
Collateral Trustee confirming same; and




     (c) all requirements set forth in the Collateral Trust Agreement as to the
confirmation, grant or perfection of the Collateral Trustee’s Liens to secure such
Indebtedness or Obligations in respect thereof are satisfied (and the satisfaction
of such requirements and the other provisions of this clause (c) will be
conclusively established if the Company delivers to the Collateral Trustee an
Officers’ Certificate stating that such requirements and other provisions have been
satisfied and that such Indebtedness is “Parity Lien Debt”).



17









 





     “Parity Lien Documents” means, collectively, the Note Documents and this Indenture, credit
agreement or other agreement governing each other Series of Parity Lien Debt and the Security
Documents securing the Parity Lien Obligations.



     “Parity Lien Obligations” means Parity Lien Debt and all other Obligations in respect thereof.



     “Parity Lien Representative” means:




     (1) in the case of the Notes, the Trustee; or




     (2) in the case of any other Series of Parity Debt, the trustee, agent or
representative of the holders of such Series of Parity Lien Debt who maintains the transfer
register for such Series of Parity Lien Debt and (a) is appointed as a Parity Lien
Representative (for purposes related to the administration of the Security Documents)
pursuant to this Indenture, credit agreement or other agreement governing such Series of
Parity Lien Debt, together with its successors in such capacity, and (b) has become a party
to the Collateral Trust Agreement by executing a joinder in the form required under the
Collateral Trust Agreement.



     “Participant” means, with respect to the Depositary, Euroclear or Clearstream, a Person who
has an account with the Depositary, Euroclear or Clearstream, respectively (and, with respect to
DTC, shall include Euroclear and Clearstream).



     “Permitted Business” means the distribution, installation and manufacture of building products
and the provision of professional installation, turn-key framing, shell construction, design and
similar construction-related services associated with such products.



     “Permitted Investments” means:




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




     (2) any Investment in Cash Equivalents;




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




     (a) such Person becomes a Restricted Subsidiary of the Company and a Guarantor; 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 that is a Guarantor;




     (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 hereof.




     (5) any acquisition of assets or Equity Interests to the extent acquired in exchange
for the issuance of Equity Interests (other than Disqualified Stock) of the Company;




     (6) any Investments received in compromise or resolution of (a) obligations of trade
creditors or customers that were incurred in the ordinary course of business of the Company
or



18









 







any of its Restricted Subsidiaries, including pursuant to any plan of reorganization or
similar arrangement upon the bankruptcy or insolvency of any trade creditor or customer; or
(b) litigation, arbitration or other disputes with Persons who are not Affiliates;




     (7) Investments represented by Hedging Obligations;




     (8) loans or advances to employees made in the ordinary course of business of the
Company or any Restricted Subsidiary of the Company in an aggregate principal amount not to
exceed $3.0 million at any one time outstanding;




     (9) to the extent constituting an Investment, repurchases of the Notes and other Parity
Lien Debt;




     (10) advances to customers in the ordinary course of business that are recorded as
accounts receivable on the consolidated balance sheet of such Person;




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




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




     (13) Investments consisting of prepaid expenses, negotiable instruments held for
collection and lease, utility and workers compensation, performance and similar deposits
entered into as a result of the operations of the business in the ordinary course of
business;




     (14) Investments in joint ventures in a Permitted Business having an aggregate Fair
Market Value (measured on the date such Investment was made and without giving effect to
subsequent changes in value) when taken together with all other Permitted Investments made
since the date of the Indenture pursuant to this clause (14) that are at the time
outstanding not to exceed an amount equal to (a) $25.0 million, minus (b) the aggregate
amount of Permitted Investments outstanding pursuant to clause (15) below in excess of $25.0
million; and




     (15) 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 since the date of this Indenture
pursuant to this clause (15) that are at the time outstanding not to exceed an amount equal
to the greater of (a) $25.0 million and (b) 3.0% of Total Assets.



     With respect to Permitted Investments made pursuant to clauses (14) and (15) above, the Fair
Market Value of any such Permitted Investment made in cash or Cash Equivalents shall be deemed to
equal the amount of cash, or the principal or notional amount of Cash Equivalents, paid or
contributed in respect of such Permitted Investment.



19









 





     “Permitted Liens” means:




     (1) Liens held by the Collateral Trustee securing (a) Priority Lien Debt in an
aggregate principal amount not exceeding the Priority Lien Cap and (b) all related Priority
Lien Obligations;




     (2) Liens held by the Collateral Trustee equally and ratably securing the Notes to be
issued on the date of this Indenture and all future Parity Lien Debt and other Parity Lien
Obligations;




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




     (4) Liens on property of a Person existing at the time such Person is merged with or
into or consolidated with the Company or any Subsidiary of the Company; provided that such
Liens were in existence prior to the 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 the Subsidiary;




     (5) Liens on property (including Capital Stock) existing at the time of acquisition of
the property by the Company or any Subsidiary of the Company; provided that such Liens were
in existence prior to, such acquisition, and not incurred in contemplation of, such
acquisition;




     (6) Liens to secure the performance of statutory obligations, surety or appeal bonds,
performance bonds or other obligations of a like nature incurred in the ordinary course of
business;




     (7) Liens to secure Indebtedness (including Capital Lease Obligations) permitted by
Section 4.09(b)(4) hereof covering only the assets acquired with or financed by such
Indebtedness and replacements thereof and accessions thereto;




     (8) Liens existing on the date of this Indenture;




     (9) 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 promptly
instituted and diligently concluded; provided that any reserve or other appropriate
provision as is required in conformity with GAAP has been made therefor;




     (10) Liens imposed by law, such as rights of set-off, carriers’, warehousemen’s,
landlord’s and mechanics’ Liens, in each case, incurred in the ordinary course of business;




     (11) survey exceptions, easements or reservations of, or rights of others for,
licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other
similar purposes, or zoning or other restrictions as to the use of real property that were
not incurred in connection with Indebtedness and that do not in the aggregate materially
adversely affect the operation of the business of the Company and its Restricted
Subsidiaries, taken as a whole;




     (12) Liens created for the benefit of (or to secure) the Notes (or the Note
Guarantees);




     (13) Liens to secure any Permitted Refinancing Indebtedness permitted to be incurred
under this Indenture; provided, however, that:



20









 






     (a) the new Lien shall be limited to all or part of the same property and
assets that secured or, under the written agreements pursuant to which the original
Lien arose, could secure the original Lien (plus improvements and accessions to,
such property or proceeds or distributions thereof); and




     (b) the Indebtedness secured by the new Lien is not increased to any amount
greater than the sum of (x) the outstanding principal amount, or, if greater,
committed amount, of the Permitted Refinancing Indebtedness and (y) an amount
necessary to pay any fees and expenses, including premiums, related to such renewal,
refunding, refinancing, replacement, defeasance or discharge;




     (14) Liens incurred or pledges or deposits made in the ordinary course of business in
connection with workers’ compensation, unemployment insurance, other social security
benefits or other insurance related obligations (including, but not limited to, in respect
of deductibles, self-insured retention amounts and premiums and adjustments thereto);




     (15) Liens arising out of judgments, decrees, orders or awards in respect of which
adequate reserves have been made in conformity with GAAP, and the Company shall in good
faith be prosecuting an appeal or proceedings for review which appeal or proceedings shall
not have been finally terminated, or if the period within which such appeal or proceedings
may be initiated shall not have expired, in each case, to the extent that the amount of such
judgments or awards do not constitute an Event of Default;




     (16) deposits or pledges in connection with bids, leases and contracts (other than
contracts for the payment of money) entered into in the ordinary course of business;




     (17) Liens securing or by reason of a receivables facility or other contractual
requirements of a receivables facility incurred pursuant to Section 4.09(b)(1)(ii) hereof;




     (18) Liens securing Indebtedness entered into in accordance with Section 4.09(b)(14)
hereof; and




     (19) Liens incurred in the ordinary course of business of the Company or any Subsidiary
of the Company with respect to obligations that do not exceed $20.0 million at any one time
outstanding.



     “Permitted Payments to Sponsor” means, without duplication as to amounts:




     (1) payments to any Principal for reimbursements of reasonable accounting, legal and
other expenses paid or incurred by such person on behalf of the Company or in connection
with such person’s Investment in the Company’s shares when due, in an aggregate amount not
to exceed $750,000 per annum; and




     (2) for so long as the Company is a member of a group filing a consolidated or combined
tax return with Building Products, LLC, payments to Building Products, LLC in respect of an
allocable portion of the tax liabilities of such group that is attributable to the Company
and its Subsidiaries (“Tax Payments”) and to pay franchise or similar taxes and fees of
Building Products, LLC required to maintain its legal existence. The Tax Payments shall not
exceed the lesser of (i) the amount of the relevant tax (including any penalties and
interest) that the Company would owe if the Company were filing a separate tax return (or a
separate consolidated or combined return with its Subsidiaries that are members of the
consolidated or combined group),



21









 







taking into account any carryovers and carrybacks of tax attributes (such as net
operating losses) of the Company and such Subsidiaries from other taxable years and (ii) the
net amount of the relevant tax that Building Products, LLC actually owes to the appropriate
taxing authority. Any Tax Payments received from the Company shall be paid over to the
appropriate taxing authority within 60 days of Building Products, LLC’s receipt of such Tax
Payments or refunded to the Company.



     “Permitted Prior Liens” means, regardless of whether this Indenture is in effect at any time
of determination:




     (1) Liens described in clauses (1), (4), (5), (6), (7) or (8) of the definition of
“Permitted Liens”; and




     (2) Permitted Liens that arise by operation of law and are not voluntarily granted, to
the extent entitled by law to priority over the Liens created by the Security Documents.



     “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 renew,
refund, refinance, replace, defease or discharge other Indebtedness of the Company or any of its
Restricted Subsidiaries (other than intercompany Indebtedness); provided that:




     (1) the principal amount (or accreted value, if applicable) of such Permitted
Refinancing Indebtedness does not exceed the principal amount (or accreted value, if
applicable) of the Indebtedness renewed, refunded, refinanced, replaced, defeased or
discharged (plus all accrued interest on the Indebtedness and the amount of all fees and
expenses, including premiums, incurred in connection therewith);




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




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




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



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



     “Pledgors” means the Company, the Guarantors, and any other Person (if any) that provides
collateral security for any Secured Debt Obligations.



22









 





     “Principal” means Building Products, LLC, a Delaware limited liability company, JLL Partners
Fund V, L.P., a Delaware limited partnership, Warburg Pincus Private Equity IX, L.P., a Delaware
limited partnership, and their respective Affiliates.



     “Priority Lien” means a Lien granted by a Security Document to the Collateral Trustee, at any
time, upon any property of the Company or any other Pledgor to secure Priority Lien Obligations.



     “Priority Lien Cap” means, as of any date, the principal amount outstanding under the Credit
Agreement and/or the Indebtedness outstanding under any other Credit Facility, in an aggregate
principal amount not to exceed the sum of the amount provided by clause (1) of the definition of
Permitted Debt, as of such date, plus the amount provided by clause (16) of the definition of
Permitted Debt, plus the amount of Priority Lien Debt incurred after the date of this Indenture the
net proceeds of which are used to repay Parity Lien Debt, less the amount of Parity Lien Debt
incurred after the date of this Indenture the net proceeds of which are used to repay Priority Lien
Debt. For purposes of this definition, all letters of credit will be valued at the face amount
thereof, whether or not drawn and all Hedging Obligations will be valued at zero.



     “Priority Lien Debt” means:




     (1) Indebtedness of the Company under the Credit Agreement (including, without
limitation, revolving loans and letters of credit) that was permitted to be incurred and
secured under each applicable Secured Debt Document (or as to which the lenders under the
Credit Agreement obtained an Officers’ Certificate at the time of incurrence to the effect
that such Indebtedness was permitted to be incurred and secured by all applicable Secured
Debt Documents);




     (2) Indebtedness of the Company under any other Credit Facility that is secured equally
and ratably with the Credit Agreement by a Priority Lien that was permitted to be incurred
and so secured under each applicable Secured Debt Document; provided, in the case of any
Indebtedness referred to in this clause (2), that:




     (a) on or before the date on which such Indebtedness is incurred by the
Company, such Indebtedness is designated by the Company, in an Officers’ Certificate
delivered to each Priority Lien Representative and the Collateral Trustee, as
“Priority Lien Debt” for the purposes of the Secured Debt Documents; provided that
no Series of Secured Debt may be designated as both Parity Lien Debt and Priority
Lien Debt;




     (b) such Indebtedness is governed by a credit agreement or other agreement that
includes a Lien Sharing and Priority Confirmation; and




     (c) all requirements set forth in the Collateral Trust Agreement as to the
confirmation, grant or perfection of the Collateral Trustee’s Lien to secure such
Indebtedness or Obligations in respect thereof are satisfied (and the satisfaction
of such requirements and the other provisions of this clause (c) will be
conclusively established if the Company delivers to the Collateral Trustee an
Officers’ Certificate stating that such requirements and other provisions have been
satisfied and that such Indebtedness is “Priority Lien Debt”); and




     (3) Hedging Obligations of the Company incurred to hedge or manage interest rate risk
with respect to any Priority Lien Debt or Parity Lien Debt; provided that:



23









 






     (a) such Hedging Obligations are secured by a Priority Lien on all of the
assets and properties that secure the Indebtedness in respect of which such Hedging
Obligations are incurred; and




     (b) such Priority Lien is senior to or on a parity with the Priority Liens
securing the Indebtedness in respect of which such Hedging Obligations are incurred.



     “Priority Lien Documents” means the Credit Agreement and any other Credit Facility pursuant to
which any Priority Lien Debt is incurred, the Collateral Trust Agreement and the Security Documents
securing the Priority Lien Obligations.



     “Priority Lien Obligations” means the Priority Lien Debt and all other Obligations in respect
of Priority Lien Debt.



     “Priority Lien Representative” means (1) the Credit Agreement Agent or (2) in the case of any
other Series of Priority Lien Debt, the trustee, agent or representative of the holders of such
Series of Priority Lien Debt who maintains the transfer register (if any) for such Series of
Priority Lien Debt and is appointed as a representative of the Priority Debt (for purposes related
to the administration of the Security Documents) pursuant to the credit agreement or other
agreement governing such Series of Priority Lien Debt.



     “Private Placement Legend” means the legend set forth in Section 2.06(f)(1) hereof to be
placed on all Notes issued under this Indenture except where otherwise permitted by the provisions
of this Indenture.



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



     “Recapitalization Transactions” means, collectively, (1) the offer of the Company to the
holders of transferable subscription rights distributed to stockholders of record as of the close
of business on December 14, 2009, to subscribe for and purchase, at the subscription price of $3.50
per share, up to an aggregate of 58,571,428 shares of the common stock, par value $0.01 per share,
of the Company (the “Rights Offering”), together with the transactions contemplated by that certain
Investment Agreement, dated as of October 23, 2009, as amended, by and among the Company, JLL
Partners Fund V, L.P., and Warburg Pincus Private Equity IX, L.P., and (2) the offer of the Company
to certain accredited holders of 2012 Notes to exchange, at par, in transactions exempt from
registration under the Securities Act, outstanding 2012 Notes for (i) up to $145.0 million
aggregate principal amount of Notes, (ii) up to $130.0 million in cash from the proceeds of the
Rights Offering, or (iii) a combination of cash and Notes, and, (iv) to the extent the Rights
Offering is not fully subscribed, shares of the common stock of the Company, together with the
transactions contemplated by that certain Support Agreement, dated as of October 23, 2009, as
amended, by and among the Company and certain holders of outstanding 2012 Notes.



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



     “Related Party” means:




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




     (2) any trust, corporation, partnership, limited liability company or other entity, the
beneficiaries, stockholders, partners, members, owners or Persons beneficially holding an
80% or



24









 







more controlling interest of which consist of any one or more Principals and/or such
other Persons referred to in the immediately preceding clause (1).



     “Required Parity Lien Debtholders” means, at any time, the holders of more than 50%
of the sum of:




     (1) the aggregate outstanding principal amount of Parity Lien Debt (including
outstanding letters of credit whether or not then available or drawn); and




     (2) other than in connection with the exercise of remedies, the aggregate unfunded
commitments to extend credit which, when funded, would constitute Parity Lien Debt.


For purposes of this definition, (a) Parity Lien Debt registered in the name of, or beneficially
owned by, the Company or any Affiliate of the Company will be deemed not to be outstanding, and (b)
votes will be determined in accordance with the Collateral Trust Agreement.




     “Responsible Officer,” when used with respect to the Trustee, means any officer within the
Corporate Trust Administration of the Trustee (or any successor group of the Trustee) or any other
officer of the Trustee customarily performing functions similar to those performed by any of the
above designated officers and also means, with respect to a particular corporate trust matter, any
other officer to whom such matter is referred because of his knowledge of and familiarity with the
particular subject.



     “Restricted Definitive Note” means a Definitive Note bearing the Private Placement Legend.



     “Restricted Global Note” means a Global Note bearing the Private Placement Legend.



     “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.



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



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



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



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



     “S&P” means Standard & Poor’s Ratings Group.



     “Sale of Collateral” means any Asset Sale involving a sale or other disposition of Collateral.



     “SEC” means the United States Securities and Exchange Commission.



     “Secured Debt” means Parity Lien Debt and Priority Lien Debt.



     “Secured Debt Documents” means the Parity Lien Documents and the Priority Lien Documents.



     “Secured Debt Representative” means each Parity Lien Representative and each Priority Lien
Representative.



25









 





     “Secured Leverage Ratio” means, on any date, the ratio of:




     (1) the aggregate principal amount of Secured Debt outstanding on such date plus all
Indebtedness of Restricted Subsidiaries of the Company that are not Guarantors outstanding
on such date (and, for this purpose, letters of credit will be deemed to have a principal
amount equal to the face amount thereof, whether or not drawn), to:




     (2) the aggregate amount of the Company’s Consolidated Cash Flow for the most recent
four full fiscal quarter period for which financial information is available.


In addition, for purposes of calculating the 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 acquisitions of assets, or any
Person or any of its Restricted Subsidiaries acquired by merger, consolidation or the
acquisition of all or substantially all of its assets by the specified Person or any of its
Restricted Subsidiaries, and including any related financing transactions and including
increases in ownership of Restricted Subsidiaries, during such four full fiscal quarter
reference period or subsequent to such reference period and on or prior to the date on which
the event for which the calculation of the Secured Leverage Ratio is made (the “Leverage
Calculation Date”) will be given pro forma effect in accordance with Regulation S-X under
the Securities Act) as if they had occurred on the first day of such four full fiscal
quarter reference period;




     (2) the Consolidated Cash Flow attributable to discontinued operations, as determined
in accordance with GAAP, and operations or businesses (and ownership interests therein)
disposed of prior to the Leverage Calculation Date will be excluded;




     (3) any Person that is a Restricted Subsidiary on the Leverage Calculation Date will be
deemed to have been a Restricted Subsidiary at all times during such four full fiscal
quarter period; and




     (4) any Person that is not a Restricted Subsidiary on the Leverage Calculation Date
will be deemed not to have been a Restricted Subsidiary at any time during such four full
fiscal quarter period.



     “Secured Obligations” means Parity Lien Obligations and Priority Lien Obligations.



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



     “Security Documents” means each Lien Sharing and Priority Confirmation, and all security
agreements, pledge agreements, collateral assignments, mortgages and deeds of trust, collateral
agency agreements, control agreements or other grants or transfers for security executed and
delivered by the Company or any other Pledgor creating (or purporting to create) a Lien upon
Collateral in favor of the Collateral Trustee, for the benefit of the holders of the Parity Lien
Obligations or the Priority Lien Obligations, as applicable, in each case, as amended, modified,
renewed, restated or replaced, in whole or in part, from time to time, in accordance with its terms
and the provisions of the Collateral Trust Agreement.



     “Series of Parity Lien Debt” means, severally, the Notes and each other issue or series of
Parity Lien Debt for which a single transfer register is maintained.



26









 





     “Series of Priority Lien Debt” means, severally, the Indebtedness (including, without
limitation, revolving loans and letters of credit) outstanding under the Credit Agreement and any
other Credit Facility that constitutes Priority Lien Debt.



     “Series of Secured Debt” means each Series of Parity Lien Debt and each Series of Priority
Lien Debt.



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



     “Stated Maturity” means, with respect to any installment of interest or principal on any
series of Indebtedness, the date on which the payment of interest or principal was scheduled to be
paid in the documentation governing such Indebtedness as of the date of this Indenture, if such
Indebtedness was in existence on the date of this Indenture, or if incurred subsequent to the date
of this Indenture, in accordance with its terms, and will 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.



     “Subsidiary” means, with respect to any specified Person:




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




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



     “TIA” means the Trust Indenture Act of 1939, as amended (15 U.S.C. §§ 77aaa-77bbbb).



     “Total Assets” means the total consolidated assets of the Company and its Restricted
Subsidiaries as set forth on the most recent consolidated balance sheet of the Company and its
Restricted Subsidiaries.



     “Trustee” means Wilmington Trust Company until a successor replaces it in accordance with the
applicable provisions of this Indenture and thereafter means the successor serving hereunder.



     “Unrestricted Definitive Note” means a Definitive Note that does not bear and is not required
to bear the Private Placement Legend.



     “Unrestricted Global Note” means a Global Note that does not bear and is not required to bear
the Private Placement Legend.



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




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



27









 






     (2) except as permitted by Section 4.11 hereof, 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 levels 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.



     “U.S. Person” means a U.S. Person as defined in Rule 902(k) promulgated under the Securities
Act.



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


Section 1.02 Other Definitions.




	 	 	 	 	 
	 	 	Defined in
	Term	 	Section
	“Affiliate Transaction”
	 	 	4.11	 
	“Asset Sale Offer”
	 	 	3.09	 
	“Authentication Order”
	 	 	2.02	 
	“Change of Control Offer”
	 	 	4.15	 
	“Change of Control Payment”
	 	 	4.15	 
	“Change of Control Payment Date”
	 	 	4.15	 
	“Covenant Defeasance”
	 	 	8.03	 
	“DTC”
	 	 	2.03	 
	“Event of Default”
	 	 	6.01	 
	“Excess Proceeds”
	 	 	4.10	 
	“incur”
	 	 	4.09	 






28









 






	 	 	 	 	 
	 	 	Defined in
	Term	 	Section
	“Legal Defeasance”
	 	 	8.02	 
	“Offer Amount”
	 	 	3.09	 
	“Offer Period”
	 	 	3.09	 
	“Paying Agent”
	 	 	2.03	 
	“Permitted Debt”
	 	 	4.09	 
	“Payment Default”
	 	 	6.01	 
	“Purchase Date”
	 	 	3.09	 
	“Redemption Date”
	 	 	3.07	 
	“Registrar”
	 	 	2.03	 
	“Restricted Payments”
	 	 	4.07	 





Section 1.03 Incorporation by Reference of Trust Indenture Act.




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



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



     “indenture securities” means the Notes;



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



     “indenture to be qualified” means this Indenture;



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



     “obligor” on the Notes and the Note Guarantees means the Company and the Guarantors,
respectively, and any successor obligor upon the Notes and the Note Guarantees, respectively.



     All other terms used in this Indenture that are defined by the TIA, defined by TIA reference
to another statute or defined by SEC rule under the TIA have the meanings so assigned to them.


Section 1.04 Rules of Construction.




     Unless the context otherwise requires:




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




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




     (3) “or” is not exclusive;




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




     (5) “will” shall be interpreted to express a command;




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



29









 






     (7) references to sections of or rules under the Securities Act will be deemed to
include substitute, replacement of successor sections or rules adopted by the SEC from time
to time.



ARTICLE 2

THE NOTES



Section 2.01 Form and Dating.




     (a) General. The Notes and the Trustee’s certificate of authentication will be
substantially in the form of Exhibit A hereto. The Notes may have notations, legends or
endorsements required by law, stock exchange rule or usage. Each Note will be dated the date of
its authentication. The Notes shall be in denominations of $1,000 and integral multiples thereof.



     The terms and provisions contained in the Notes will constitute, and are hereby expressly
made, a part of this Indenture and the Company, the Guarantors and the Trustee, by their execution
and delivery of this 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 Indenture, the provisions of this Indenture shall govern and be controlling.



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


Section 2.02 Execution and Authentication.




     At least one Officer must sign the Notes for the Company by manual or facsimile
signature.



     If an Officer whose signature is on a Note no longer holds that office at the time a Note is
authenticated, the Note will nevertheless be valid.



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



     The Trustee will, upon receipt of a written order of the Company signed by two Officers (an
“Authentication Order”), authenticate Notes for original issue that may be validly issued under
this Indenture, including any Additional Notes. The aggregate principal amount of Notes
outstanding at any time may not exceed the aggregate principal amount of Notes authorized for
issuance by the Company pursuant to one or more Authentication Orders, except as provided in
Section 2.07 hereof.



     The Trustee may appoint an authenticating agent acceptable to the Company to authenticate
Notes. An authenticating agent may authenticate Notes whenever the Trustee may do so. Each
reference



30









 




in this Indenture to authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with Holders or an Affiliate of the
Company.



Section 2.03 Registrar and Paying Agent.




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



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



     The Company initially appoints the Trustee to act as the Registrar and Paying Agent and to act
as Custodian with respect to the Global Notes.


Section 2.04 Paying Agent to Hold Money in Trust.




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


Section 2.05 Holder Lists.




     The Trustee will preserve in as current a form as is reasonably practicable the most
recent list available to it of the names and addresses of all Holders and shall otherwise comply
with TIA § 312(a). If the Trustee is not the Registrar, the Company will furnish to the Trustee at
least seven Business Days before each interest payment date and at such other times as the Trustee
may request in writing, a list in such form and as of such date as the Trustee may reasonably
require of the names and addresses of the Holders of Notes and the Company shall otherwise comply
with TIA § 312(a).


Section 2.06 Transfer and Exchange.




     (a) Transfer and Exchange of Global Notes. A Global Note may not be transferred except
as a whole by the Depositary to a nominee of the Depositary, by a nominee of the Depositary to the
Depositary or to another nominee of the Depositary, or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. All Global Notes will be exchanged
by the Company for Definitive Notes if:




31












 






     (1) the Company delivers to the Trustee notice from the Depositary that it is unwilling
or unable to continue to act as Depositary or that it is no longer a clearing agency
registered under the Exchange Act and, in either case, a successor Depositary is not
appointed by the Company within 120 days after the date of such notice from the Depositary;




     (2) the Company in its sole discretion determines that the Global Notes (in whole but
not in part) should be exchanged for Definitive Notes and delivers a written notice to such
effect to the Trustee; or




     (3) there has occurred and is continuing a Default or Event of Default with respect to
the Notes.



     Upon the occurrence of either of the preceding events in (1) or (2) above, Definitive Notes
shall be issued in such names as the Depositary shall instruct the Trustee. Global Notes also may
be exchanged or replaced, in whole or in part, as provided in Sections 2.07 and 2.10 hereof. Every
Note authenticated and delivered in exchange for, or in lieu of, a Global Note or any portion
thereof, pursuant to this Section 2.06 or Section 2.07 or 2.10 hereof, shall be authenticated and
delivered in the form of, and shall be, a Global Note. A Global Note may not be exchanged for
another Note other than as provided in this Section 2.06(a); however, beneficial interests in a
Global Note may be transferred and exchanged as provided in Section 2.06(b), (c) or (f) hereof.



     (b) Transfer and Exchange of Beneficial Interests in the Global Notes. The transfer
and exchange of beneficial interests in the Global Notes will be effected through the Depositary,
in accordance with the provisions of this Indenture and the Applicable Procedures. Beneficial
interests in the Restricted Global Notes will be subject to restrictions on transfer comparable to
those set forth herein to the extent required by the Securities Act. Transfers of beneficial
interests in the Global Notes also will require compliance with either subparagraph (1) or (2)
below, as applicable, as well as one or more of the other following subparagraphs, as applicable:




     (1) Transfer of Beneficial Interests in the Same Global Note. Beneficial interests in
any Restricted Global Note may be transferred to Persons who take delivery thereof in the
form of a beneficial interest in the same Restricted Global Note in accordance with the
transfer restrictions set forth in the Private Placement Legend. Beneficial interests in
any Unrestricted Global Note may be transferred to Persons who take delivery thereof in the
form of a beneficial interest in an Unrestricted Global Note. No written orders or
instructions shall be required to be delivered to the Registrar to effect the transfers
described in this Section 2.06(b)(1).




     (2) All Other Transfers and Exchanges of Beneficial Interests in Global Notes. In
connection with all transfers and exchanges of beneficial interests that are not subject to
Section 2.06(b)(1) above, the transferor of such beneficial interest must deliver to the
Registrar either:




     (A) both:




     (i) a written order from a Participant or an Indirect
Participant given to the Depositary in accordance with the Applicable
Procedures directing the Depositary to credit or cause to be credited a
beneficial interest in another Global Note in an amount equal to the
beneficial interest to be transferred or exchanged; and



32









 






     (ii) instructions given in accordance with the Applicable
Procedures containing information regarding the Participant account to be
credited with such increase; or




     (B) both:




     (i) a written order from a Participant or an Indirect
Participant given to the Depositary in accordance with the Applicable
Procedures directing the Depositary to cause to be issued a Definitive Note
in an amount equal to the beneficial interest to be transferred or
exchanged; and




     (ii) instructions given by the Depositary to the Registrar
containing information regarding the Person in whose name such Definitive
Note shall be registered to effect the transfer or exchange referred to in
(1) above.


Upon satisfaction of all of the requirements for transfer or exchange of beneficial interests in
Global Notes contained in this Indenture and the Notes or otherwise applicable under the Securities
Act, the Trustee shall adjust the principal amount of the relevant Global Note(s) pursuant to
Section 2.06(h) hereof.





     (3) Transfer of Beneficial Interests to Another Restricted Global Note. A beneficial
interest in any Restricted Global Note may be transferred to a Person who takes delivery
thereof in the form of a beneficial interest in another Restricted Global Note if the
transfer complies with the requirements of Section 2.06(b)(2) above and the Registrar
receives from the transferor a certificate in the form of Exhibit B hereto, including the
applicable certifications, certificates, and any Opinion of Counsel that may be required
therein.




     (4) Transfer and Exchange of Beneficial Interests in a Restricted Global Note for
Beneficial Interests in an Unrestricted Global Note. A beneficial interest in any
Restricted Global Note may be exchanged by any holder thereof for a beneficial interest in
an Unrestricted Global Note or transferred to a Person who takes delivery thereof in the
form of a beneficial interest in an Unrestricted Global Note if the exchange or transfer
complies with the requirements of Section 2.06(b)(2) above and:




     (A) such transfer is effected pursuant to an effective registration statement
under the Securities Act; or




     (B) the Registrar receives the following:




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




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



33









 







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



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



     Beneficial interests in an Unrestricted Global Note cannot be exchanged for, or transferred to
Persons who take delivery thereof in the form of, a beneficial interest in a Restricted Global
Note.



     (c) Transfer or Exchange of Beneficial Interests for Definitive Notes.




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




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




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




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




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




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




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



34









 






     (G) if such beneficial interest is being transferred pursuant to an effective
registration statement under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item (3)(c) thereof,


the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced
accordingly pursuant to Section 2.06(g) hereof, and the Company shall execute and the Trustee shall
authenticate and deliver to the Person designated in the instructions a Definitive Note in the
appropriate principal amount. Any Definitive Note issued in exchange for a beneficial interest in
a Restricted Global Note pursuant to this Section 2.06(c) shall be registered in such name or names
and in such authorized denomination or denominations as the holder of such beneficial interest
shall instruct the Registrar through instructions from the Depositary and the Participant or
Indirect Participant. The Trustee shall deliver such Definitive Notes to the Persons in whose
names such Notes are so registered. Any Definitive Note issued in exchange for a beneficial
interest in a Restricted Global Note pursuant to this Section 2.06(c)(1) shall bear the Private
Placement Legend and shall be subject to all restrictions on transfer contained therein.





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




     (A) such transfer is effected pursuant to an effective registration statement
under the Securities Act; or




     (B) the Registrar receives the following:




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




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




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




     (3) Beneficial Interests in Unrestricted Global Notes to Unrestricted Definitive Notes.
If any holder of a beneficial interest in an Unrestricted Global Note proposes to exchange
such beneficial interest for a Definitive Note or to transfer such beneficial interest to a
Person who takes delivery thereof in the form of a Definitive Note, then, upon satisfaction
of the conditions set forth in Section 2.06(b)(2) hereof, the Trustee will cause the
aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant
to Section 2.06(g) hereof, and the Company will execute and the Trustee will authenticate
and deliver to the Person designated in



35









 







the instructions a Definitive Note in the appropriate principal amount. Any Definitive
Note issued in exchange for a beneficial interest pursuant to this Section 2.06(c)(3) will
be registered in such name or names and in such authorized denomination or denominations as
the holder of such beneficial interest requests through instructions to the Registrar from
or through the Depositary and the Participant or Indirect Participant. The Trustee will
deliver such Definitive Notes to the Persons in whose names such Notes are so registered.
Any Definitive Note issued in exchange for a beneficial interest pursuant to this Section
2.06(c)(3) will not bear the Private Placement Legend.




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




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




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




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




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




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




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




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




     (G) if such Restricted Definitive Note is being transferred pursuant to an
effective registration statement under the Securities Act, a certificate to the
effect set forth in Exhibit B hereto, including the certifications in item (3)(c)
thereof,




the Trustee will cancel the Restricted Definitive Note and increase or cause to be
increased the aggregate principal amount of the Restricted Global Note.



36









 






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




     (A) such transfer is effected pursuant to an effective registration statement
under the Securities Act; or




     (B) the Registrar receives the following:




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




     (ii) if the Holder of such Definitive Notes proposes to
transfer such Notes to a Person who shall take delivery thereof in the form
of a beneficial interest in the Unrestricted Global Note, a certificate from
such Holder in the form of Exhibit B hereto, including the applicable
certifications therein;




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




     Upon satisfaction of the conditions of any of the subparagraphs in this Section
2.06(d)(2), the Trustee will cancel the Definitive Notes and increase or cause to be
increased the aggregate principal amount of the Unrestricted Global Note.




     (3) Unrestricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes.
A Holder of an Unrestricted Definitive Note may exchange such Note for a beneficial
interest in an Unrestricted Global Note or transfer such Definitive Notes to a Person who
takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note
at any time. Upon receipt of a request for such an exchange or transfer, the Trustee will
cancel the applicable Unrestricted Definitive Note and increase or cause to be increased the
aggregate principal amount of one of the Unrestricted Global Notes.




     If any such exchange or transfer from a Definitive Note to a beneficial interest is
effected pursuant to subparagraphs (2)(A), (2)(B) or (3) above at a time when an
Unrestricted Global Note has not yet been issued, the Company will issue and, upon receipt
of an Authentication Order in accordance with Section 2.02 hereof, the Trustee will
authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to
the principal amount of Definitive Notes so transferred.



     (e) Transfer and Exchange of Definitive Notes for Definitive Notes. Upon request by
a Holder of Definitive Notes and such Holder’s compliance with the provisions of this Section
2.06(e), the Registrar will register the transfer or exchange of Definitive Notes. Prior to such
registration of transfer or exchange, the requesting Holder must present or surrender to the
Registrar the Definitive Notes duly endorsed or accompanied by a written instruction of transfer in
form satisfactory to the Registrar duly



37









 




executed by such Holder or by its attorney, duly authorized in writing. In addition, the
requesting Holder must provide any additional certifications, documents and information, as
applicable, required pursuant to the following provisions of this Section 2.06(e).





     (1) Restricted Definitive Notes to Restricted Definitive Notes. Any Restricted
Definitive Note may be transferred to and registered in the name of Persons who take
delivery thereof in the form of a Restricted Definitive Note if the Registrar receives a
certificate in the form of Exhibit B hereto, including the applicable certifications,
certificates, and any Opinion of Counsel that may be required therein.




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




     (A) such transfer is effected pursuant to an effective registration statement
under the Securities Act; or




     (B) the Registrar receives the following:




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




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




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




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



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




     (1) Private Placement Legend.




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



38









 




“THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), OR ANY OTHER SECURITIES LAWS. THIS SECURITY MAY NOT BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.



THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES TO OFFER, SELL OR OTHERWISE TRANSFER
SUCH SECURITY, PRIOR TO THE DATE THAT IS SIX MONTHS AFTER THE ORIGINAL ISSUE DATE HEREOF OR SUCH
OTHER PERIOD AS PROMULGATED BY THE SECURITIES AND EXCHANGE COMMISSION ONLY (A) TO THE COMPANY OR
ANY SUBSIDIARY THEREOF, (B) TO A “QUALIFIED INSTITUTIONAL BUYER” WITHIN THE MEANING OF RULE 144A OF
THE SECURITIES ACT, (C) TO AN “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(A) OF THE
SECURITIES ACT SUBJECT TO THE RIGHT OF THE COMPANY PRIOR TO ANY OFFER, SALE OR TRANSFER ,TO REQUIRE
THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO IT,
(D) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT,
(E) OUTSIDE THE UNITED STATES PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS IN AN OFFSHORE
TRANSACTION PURSUANT TO REGULATION S UNDER THE SECURITIES ACT IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.”





     (B) Notwithstanding the foregoing, any Global Note or Definitive Note issued
pursuant to subparagraphs (b)(4), (c)(2), (c)(3), (d)(2), (d)(3), (e)(2), or (e)(3)
of this Section 2.06 (and all Notes issued in exchange therefor or substitution
thereof) will not bear the Private Placement Legend.




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


“THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR
ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO
ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS
MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED IN
WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (3) THIS GLOBAL NOTE MAY BE
DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (4) THIS
GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE
COMPANY.



UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY
NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED






39









 







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




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



     (h) General Provisions Relating to Transfers and Exchanges.




     (1) To permit registrations of transfers and exchanges, the Company will execute and
the Trustee will authenticate Global Notes and Definitive Notes upon receipt of an
Authentication Order in accordance with Section 2.02 hereof or at the Registrar’s request.




     (2) No service charge will be made to a Holder of a beneficial interest in a Global
Note or to a Holder of a Definitive Note for any registration of transfer or exchange, but
the Company and the Registrar may require payment of a sum sufficient to cover any transfer
tax or similar governmental charge payable in connection therewith (other than any such
transfer taxes or similar governmental charge payable upon exchange or transfer pursuant to
Sections 2.10, 3.06, 3.09, 4.10, 4.15 and 9.05 hereof).




     (3) The Registrar will not be required to register the transfer of or exchange of any
Note selected for redemption in whole or in part, except the unredeemed portion of any Note
being redeemed in part.




     (4) All Global Notes and Definitive Notes issued upon any registration of transfer or
exchange of Global Notes or Definitive Notes will be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this Indenture, as the
Global Notes or Definitive Notes surrendered upon such registration of transfer or exchange.




     (5) Neither the Registrar nor the Company will be required:




     (A) to issue, to register the transfer of or to exchange any Notes during a
period beginning at the opening of business 15 days before the day of any selection
of Notes for redemption under Section 3.02 hereof and ending at the close of
business on the day of selection;




     (B) to register the transfer of or to exchange any Note selected for redemption
in whole or in part, except the unredeemed portion of any Note being redeemed in
part; or



40









 






     (C) to register the transfer of or to exchange a Note between a record date and
the next succeeding interest payment date.




     (6) Prior to due presentment for the registration of a transfer of any Note, the
Trustee, any Agent and the Company may deem and treat the Person in whose name any Note is
registered as the absolute owner of such Note for the purpose of receiving payment of
principal of and interest on such Notes and for all other purposes, and none of the Trustee,
any Agent or the Company shall be affected by notice to the contrary.




     (7) The Trustee will authenticate Global Notes and Definitive Notes in accordance with
the provisions of Section 2.02 hereof.




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


Section 2.07 Replacement Notes.




     If any mutilated Note is surrendered to the Trustee or the Company and the Trustee
receives evidence to its satisfaction of the destruction, loss or theft of any Note, the Company
will issue and the Trustee, upon receipt of an Authentication Order, will authenticate a
replacement Note if the Trustee’s requirements are met. If required by the Trustee or the Company,
an indemnity bond must be supplied by the Holder that is sufficient in the judgment of the Trustee
and the Company to protect the Company, the Trustee, any Agent and any authenticating agent from
any loss that any of them may suffer if a Note is replaced. Each of the Company and, as
contemplated by Section 7.07 hereof, the Trustee may charge for its expenses in replacing a Note.



     Every replacement Note is an additional obligation of the Company and will be entitled to all
of the benefits of this Indenture equally and proportionately with all other Notes duly issued
hereunder.


Section 2.08 Outstanding Notes.




     The Notes outstanding at any time are all the Notes authenticated by the Trustee except
for those canceled by it, those delivered to it for cancellation, those reductions in the interest
in a Global Note effected by the Trustee in accordance with the provisions hereof, and those
described in this Section 2.08 as not outstanding. Except as set forth in Section 2.09 hereof, a
Note does not cease to be outstanding because the Company or an Affiliate of the Company holds the
Note; however, Notes held by the Company or a Subsidiary of the Company shall not be deemed to be
outstanding for purposes of Section 3.07(a) hereof.



     If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be outstanding unless the
Trustee receives proof satisfactory to it that the replaced Note is held by a protected purchaser.



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



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


Section 2.09 Treasury Notes.







41









 








     In determining whether the Holders of the required principal amount of Notes have
concurred in any direction, waiver or consent, Notes owned by the Company or any Guarantor, or by
any Person directly or indirectly controlling or controlled by or under direct or indirect common
control with the Company or any Guarantor, will be considered as though not outstanding, except
that for the purposes of determining whether the Trustee will be protected in relying on any such
direction, waiver or consent, only Notes that the Trustee knows are so owned will be so
disregarded.


Section 2.10 Temporary Notes.




     Until certificates representing Notes are ready for delivery, the Company may prepare and
the Trustee, upon receipt of an Authentication Order, will authenticate temporary Notes. Temporary
Notes will be substantially in the form of certificated Notes but may have variations that the
Company considers appropriate for temporary Notes and as may be reasonably acceptable to the
Trustee. Without unreasonable delay, the Company will prepare and the Trustee will authenticate
definitive Notes in exchange for temporary Notes.



     Holders of temporary Notes will be entitled to all of the benefits of this Indenture.


Section 2.11 Cancellation.




     The Company at any time may deliver Notes to the Trustee for cancellation. The Registrar
and Paying Agent will forward to the Trustee any Notes surrendered to them for registration of
transfer, exchange or payment. The Trustee and no one else will cancel all Notes surrendered for
registration of transfer, exchange, payment, replacement or cancellation and will destroy canceled
Notes (subject to the record retention requirement of the Exchange Act). Certification of the
destruction of all canceled Notes will be delivered to the Company. The Company may not issue new
Notes to replace Notes that it has paid or that have been delivered to the Trustee for
cancellation.


Section 2.12 Defaulted Interest.




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



ARTICLE 3

REDEMPTION AND PREPAYMENT



Section 3.01 Notices to Trustee.




     If the Company elects to redeem Notes pursuant to the optional redemption provisions of
Section 3.07 hereof, it must furnish to the Trustee, at least 30 days but not more than 60 days
before a redemption date, an Officers’ Certificate setting forth:




     (1) the clause of this Indenture pursuant to which the redemption shall occur;



42









 






     (2) the redemption date;




     (3) the principal amount of Notes to be redeemed; and




     (4) the redemption price.


Section 3.02 Selection of Notes to Be Redeemed or Purchased.




     If less than all of the Notes are to be redeemed or purchased in an offer to purchase at
any time, the Trustee will select Notes for redemption or purchase on a pro rata basis except:




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




     (2) if otherwise required by law.



     In the event of partial redemption or purchase by lot, the particular Notes to be redeemed or
purchased will be selected, unless otherwise provided herein, not less than 30 nor more than 60
days prior to the redemption or purchase date by the Trustee from the outstanding Notes not
previously called for redemption or purchase.



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


Section 3.03 Notice of Redemption.




     Subject to the provisions of Section 3.09 hereof, at least 30 days but not more than 60
days before a redemption date, the Company will mail or cause to be mailed, by first class mail, a
notice of redemption to each Holder whose Notes are to be redeemed at its registered address,
except that redemption notices may be mailed more than 60 days prior to a redemption date if the
notice is issued in connection with a defeasance of the Notes or a satisfaction and discharge of
this Indenture pursuant to Articles 8 or 12 hereof.



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




     (1) the redemption date;




     (2) the redemption price;




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




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



43









 






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




     (6) that, unless the Company defaults in making such redemption payment, interest on
Notes called for redemption ceases to accrue on and after the redemption date and the only
remaining right of Holders of such Notes is to receive payment of the redemption price upon
surrender of Notes redeemed;




     (7) the paragraph of the Notes and/or section of this Indenture pursuant to which the
Notes called for redemption are being redeemed; and




     (8) that no representation is made as to the correctness or accuracy of the CUSIP
number, if any, listed in such notice or printed on the Notes.



     At the Company’s request, the Trustee will give the notice of redemption in the Company’s name
and at its expense; provided, however, that the Company has delivered to the Trustee, at least 45
days prior to the redemption date, an Officers’ Certificate requesting that the Trustee give such
notice and setting forth the information to be stated in such notice as provided in the preceding
paragraph.


Section 3.04 Effect of Notice of Redemption.




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


Section 3.05 Deposit of Redemption or Purchase Price.




     On or prior to the redemption or purchase date, the Company will deposit with the Trustee
or with the Paying Agent money sufficient to pay the redemption or purchase price of and accrued
interest on all Notes to be redeemed or purchased on that date. The Trustee or the Paying Agent
will promptly return to the Company any money deposited with the Trustee or the Paying Agent by the
Company in excess of the amounts necessary to pay the redemption or purchase price of and accrued
interest on all Notes to be redeemed or purchased.



     If the Company complies with the provisions of the preceding paragraph, on and after the
redemption or purchase date, interest will cease to accrue on the Notes or the portions of Notes
called for redemption or purchase, and the only remaining right of Holders of such Notes is to
receive payment of the redemption price or purchase price upon surrender of Notes redeemed or
purchased. If a Note is redeemed or purchased on or after an interest record date but on or prior
to the related interest payment date, then any accrued and unpaid interest shall be paid to the
Person in whose name such Note was registered at the close of business on such record date. If any
Note called for redemption or purchase is not so paid upon surrender for redemption or purchase
because of the failure of the Company to comply with the preceding paragraph, interest shall be
paid on the unpaid principal, from the redemption or purchase date until such principal is paid,
and to the extent lawful on any interest not paid on such unpaid principal, in each case at the
rate provided in the Notes and in Section 4.01 hereof.


Section 3.06 Notes Redeemed or Purchased in Part.




     Upon surrender of a Note that is redeemed or purchased in part, the Company will issue
and, upon receipt of an Authentication Order, the Trustee will authenticate for the Holder at the
expense of the



44









 




Company a new Note equal in principal amount to the unredeemed or unpurchased portion of the
Note surrendered.



Section 3.07 Optional Redemption.




     (a) At any time prior to February 15, 2011, the Company may on any one or more occasions
redeem all or a part of the Notes, upon not less than 30 nor more than 60 days’ prior notice mailed
by first-class mail to each Holder’s registered address, at a redemption price equal to 105% of the
principal amount of Notes redeemed plus accrued and unpaid interest to the date of redemption (the
“Redemption Date”), subject to the rights of Holders on the relevant record date to receive
interest due on the relevant interest payment date.



     (b) On or after February 15, 2011, 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 on the Notes
redeemed, to the applicable redemption date, if redeemed during the twelve-month period beginning
on February 15 of the years indicated below, subject to the rights of Holders on the relevant
record date to receive interest on the relevant interest payment date:



	 	 	 
	Year	 	Percentage
	2011
	 	102.5%
	2012
	 	101%
	2013 and thereafter
	 	100%





Unless the Company defaults in the payment of the redemption price, interest will cease to accrue
on the Notes or portions thereof called for redemption on the applicable redemption date.




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


Section 3.08 Mandatory Redemption.




     The Company is not required to make mandatory redemption or sinking fund payments with
respect to the Notes.


Section 3.09 Offer to Purchase by Application of Excess Proceeds.




     In the event that, pursuant to Section 4.10 hereof, the Company is required to commence
an offer to all Holders to purchase Notes (an “Asset Sale Offer”), it will follow the procedures
specified below.



     The Asset Sale Offer shall be made to all Holders and all holders of other Parity Lien Debt
containing provisions similar to those set forth in this Indenture with respect to offers to
purchase or redeem with the proceeds of sales of assets. The Asset Sale Offer will remain open for
a period of at least 20 Business Days following its commencement and not more than 30 Business
Days, except to the extent that a longer period is required by applicable law (the “Offer Period”).
No later than three Business Days after the termination of the Offer Period (the “Purchase Date”),
the Company will apply all Excess Proceeds (the “Offer Amount”) to the purchase of Notes and such
other Parity Lien Debt (on a pro rata basis, if applicable) or, if less than the Offer Amount has
been tendered, all Notes and other Indebtedness tendered in response to the Asset Sale Offer.
Payment for any Notes so purchased will be made in the same manner as interest payments are made.



45









 





     If the Purchase Date is on or after an interest record date and on or before the related
interest payment date, any accrued and unpaid interest will be paid to the Person in whose name a
Note is registered at the close of business on such record date, and no additional interest will be
payable to Holders who tender Notes pursuant to the Asset Sale Offer.



     Upon the commencement of an Asset Sale Offer, the Company will send, by first class mail, a
notice to the Trustee and each of the Holders, with a copy to the Trustee. The notice will contain
all instructions and materials necessary to enable such Holders to tender Notes pursuant to the
Asset Sale Offer. The notice, which will govern the terms of the Asset Sale Offer, will state:




     (1) that the Asset Sale Offer is being made pursuant to this Section 3.09 and Section
4.10 hereof and the length of time the Asset Sale Offer will remain open;




     (2) the Offer Amount, the purchase price and the Purchase Date;




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




     (4) that, unless the Company defaults in making such payment, any Note accepted for
payment pursuant to the Asset Sale Offer will cease to accrue interest after the Purchase
Date;




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




     (6) that Holders electing to have Notes purchased pursuant to any Asset Sale Offer will
be required to surrender the Note, with the form entitled “Option of Holder to Elect
Purchase” attached to the Notes completed, or 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;




     (7) that Holders will be entitled to withdraw their election if the Company, the
Depositary or the Paying Agent, as the case may be, receives, not later than the expiration
of the Offer Period, a telegram, 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;




     (8) that, if the aggregate principal amount of Notes and other Parity Lien Debt
surrendered by holders thereof exceeds the Offer Amount, the Company will select the Notes
and other Parity Lien Debt to be purchased on a pro rata basis based on the principal amount
of Notes and such other Parity Lien Debt surrendered (with such adjustments as may be deemed
appropriate by the Company so that only Notes in denominations of $1,000, or integral
multiples thereof, will be purchased); and




     (9) that Holders whose Notes were purchased only in part will be issued new Notes equal
in principal amount to the unpurchased portion of the Notes surrendered (or transferred by
book-entry transfer).



     On or before the Purchase Date, the Company will, to the extent lawful, accept for payment, on
a pro rata basis to the extent necessary, the Offer Amount of Notes or portions thereof tendered
pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all Notes
tendered, and will deliver or cause to be delivered to the Trustee the Notes properly accepted
together with an Officers’ Certificate stating that such Notes or portions thereof were accepted
for payment by the Company in



46









 




accordance with the terms of this Section 3.09. The Company, the Depositary or the Paying
Agent, as the case may be, will promptly (but in any case not later than five days after the
Purchase Date) 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 will
promptly issue a new Note, and the Trustee, upon written request from the Company, will
authenticate and mail or deliver (or cause to be transferred by book entry) such new Note to such
Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note
not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The
Company will publicly announce the results of the Asset Sale Offer on the Purchase Date.




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



ARTICLE 4

COVENANTS



Section 4.01 Payment of Notes.




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



     The Company will pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal at the rate equal to 2.0% per annum in excess of the then
applicable interest rate on the Notes to the extent lawful; it will pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of
interest (without regard to any applicable grace period) at the same rate to the extent lawful.


Section 4.02 Maintenance of Office or Agency.




     The Company will maintain an office or agency (which may be an office of the Trustee or
an affiliate of the Trustee, Registrar or co-registrar) where Notes may be surrendered for
registration of transfer or for exchange and where notices and demands to or upon the Company in
respect of the Notes and this Indenture may be served. The Company will give prompt written notice
to the Trustee of the location, and any change in the location, of such office or agency. If at
any time the Company fails to maintain any such required office or agency or fails to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee.



     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; provided, however, that no such designation or rescission will in any
manner relieve the Company of its obligation to maintain an office or agency in the Borough of
Manhattan, the City of New York for such purposes. The Company will give prompt written notice to
the Trustee of any such designation or rescission and of any change in the location of any such
other office or agency.



     The Company hereby designates the Corporate Trust Office of the Trustee as one such office or
agency of the Company in accordance with Section 2.03 hereof.



47









 




Section 4.03 Reports.




     (a) Whether or not required by the rules and regulations of the SEC, so long as any Notes
are outstanding, the Company will furnish to the Holders of Notes or cause the Trustee to furnish
to the Holders of Notes, within the time periods specified in the SEC’s rules and regulations
applicable to filers other than large accelerated filers and accelerated filers (as such terms are
used in Rule 12b-2 under the Exchange Act):




     (1) all quarterly and annual reports that would be required to be filed with the SEC on
Forms 10-Q and 10-K if the Company were required to file such reports; and




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



     The availability of the foregoing materials on either the SEC’s EDGAR database service or on
the Company’s website shall be deemed to satisfy the Company’s delivery obligation to deliver such
reports.



     All such reports will be prepared in all material respects in accordance with all of the rules
and regulations applicable to such reports. Each annual report on Form 10-K will include a report
on the Issuer’s consolidated financial statements by the Issuer’s certified independent
accountants. In addition, the Company will file a copy of each of the reports referred to in
clauses (1) and (2) above with the SEC for public availability within the time periods specified in
the rules and regulations applicable to such reports for filers other than large accelerated filers
and accelerated filers (as such terms are used in Rule 12b-2 under the Exchange Act) (unless the
SEC will not accept such a filing) and will post the reports on its website within those time
periods.



     If, at any time the Company is no longer subject to the periodic reporting requirements of the
Exchange Act for any reason, the Company will nevertheless continue filing the reports specified in
the preceding paragraph with the SEC within the time periods specified above unless the SEC will
not accept such a filing. The Company will not take any action for the purpose of causing the SEC
not to accept any such filings. If, notwithstanding the foregoing, the SEC will not accept the
Company’s filings for any reason, the Company will post the reports referred to in the preceding
paragraph on its website within the time periods that would apply if the Company were required to
file those reports with the SEC.



     (b) If the Company has designated any of its Subsidiaries as Unrestricted
Subsidiaries, then the quarterly and annual financial information required by paragraph (a) of this
Section 4.03 will include a reasonably detailed presentation, either on the face of the financial
statements or in the footnotes thereto, and in Management’s Discussion and Analysis of Financial
Condition and Results of Operations, of the financial condition and results of operations of the
Company and its Restricted Subsidiaries separate from the financial condition and results of
operations of the Unrestricted Subsidiaries of the Company.



     (c) For so long as any Notes remain outstanding, if at any time they are not
required to file with the SEC the reports required by paragraphs (a) and (b) of this Section 4.03,
the Company and the Guarantors will furnish to the Holders and to securities analysts and
prospective investors, upon their request, the information required to be delivered pursuant to
Rule 144A(d)(4) under the Securities Act.


Section 4.04 Compliance Certificate.




     (a) The Company and each Guarantor (to the extent that such Guarantor is so required
under the TIA) shall deliver to the Trustee, within 120 days after the end of each fiscal year, an
Officers’ Certificate stating that a review of the activities of the Company and its Subsidiaries
during the preceding fiscal year



48









 




has been made under the supervision of the signing Officers with a view to determining whether
the Company has kept, observed, performed and fulfilled its obligations under this Indenture and
the Security Documents, and further stating, as to each such Officer signing such certificate, that
to the best of his or her knowledge the Company has kept, observed, performed and fulfilled each
and every covenant contained in this Indenture and the Security Documents in all material respects
and is not in default in the performance or observance of any of the terms, provisions and
conditions of this Indenture and the Security Documents (or, if a Default or Event of Default has
occurred, describing all such Defaults or Events of Default of which he or she may have knowledge)
and that to the best of his or her knowledge no event has occurred and remains in existence by
reason of which payments on account of the principal of or interest, if any, on the Notes is
prohibited or if such event has occurred, a description of the event.




     (b) So long as any of the Notes are outstanding, the Company will deliver to the
Trustee, forthwith upon 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
proposes to take with respect thereto.


Section 4.05 Taxes.




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


Section 4.06 Stay, Extension and Usury Laws.




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


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 dividends, payments or distributions payable in Equity Interests (other than
Disqualified Stock) of the Company and other than dividends or distributions payable to the
Company or a Restricted Subsidiary of the Company);




     (2) purchase, redeem 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;



49









 






     (3) make any payment on or with respect to, or purchase, redeem, defease or otherwise
acquire or retire for value any Indebtedness of the Company or any Guarantor that is
contractually subordinated to the Notes or to any Note Guarantee (excluding any intercompany
Indebtedness between or among the Company and any of its Restricted Subsidiaries), except a
payment of interest or principal at the Stated Maturity thereof; or




     (4) make any Restricted Investment




(all such payments and other actions set forth in these 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:





     (1) no Default or Event of Default has occurred and is continuing or would occur as a
consequence of such Restricted Payment;




     (2) 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 full fiscal 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) hereof; and




     (3) such Restricted Payment, together with the aggregate amount of all other Restricted
Payments made by the Company and its Restricted Subsidiaries since the date of this
Indenture (excluding Restricted Payments permitted by clauses (2), (3), (4), (6), (8), (9),
(10), and (11) of paragraph (b) of this Section 4.07, and excluding Restricted Payments
attributable to proceeds of key-man life insurance, with respect to clause (5) of paragraph
(b) of this Section 4.07), is less than the sum, without duplication, of:




     (A) 50% of the Consolidated Net Income of the Company for the period (taken as
one accounting period) from the beginning of the first fiscal quarter commencing
after the date of this Indenture to the end of the Company’s most recently ended
fiscal quarter for which 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




     (B) 100% of the aggregate net cash proceeds received by the Company since the
date of this 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) or
from the issue or sale of convertible or exchangeable Disqualified Stock or
convertible or exchangeable 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




     (C) to the extent that any Restricted Investment that was made after the date
of this Indenture is sold for cash or otherwise liquidated or repaid for cash, the
cash return of capital with respect to such Restricted Investment (less the cost of
disposition, if any); plus




     (D) to the extent that any Unrestricted Subsidiary of the Company designated as
such after the date of this Indenture is redesignated as a Restricted Subsidiary
after the



50









 







date of this Indenture, the Fair Market Value of the Company’s Investment in
such Subsidiary as of the date of such redesignation; plus




     (E) 100% of any dividends received by the Company or a Wholly-Owned Restricted
Subsidiary of the Company that is a Guarantor after the date of this Indenture from
an Unrestricted Subsidiary of the Company, to the extent that such dividends were
not otherwise included in the Consolidated Net Income of the Company for such
period.



     (b) With respect to (a) any payments made pursuant to clauses (2), (3), (4), (5)
(other than with respect to proceeds of key-man life insurance), and (7) below, so long as no
Default or Event of Default has occurred and is continuing or would be caused by such payments, and
(b) any payments made pursuant to clauses (1), (5) (with the cash proceeds of key-man life
insurance policies and any carryover of such amount as permitted by such clause (5)), (6), (8),
(9), (10), and (11) below, regardless of whether any Default or Event of Default has occurred and
is continuing or would be caused by such payment, the provisions of Section 4.07(a) hereof will not
prohibit:




     (1) the payment of any dividend or the consummation of any irrevocable redemption
within 60 days after the date of declaration of the dividend or giving of the redemption
notice, as the case may be, if at the date of declaration or notice, the dividend or
redemption payment would have complied with the provisions of this Indenture;




     (2) the making of any Restricted Payment in exchange for, or out of the net cash
proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company)
of, Equity Interests of the Company (other than Disqualified Stock) or from the
substantially concurrent contribution of common equity capital to the Company; provided that
the amount of any such net cash proceeds that are utilized for any such Restricted Payment
will be excluded from clause (3)(B) of Section 4.07(a) hereof;




     (3) the repurchase, redemption, defeasance or other acquisition or retirement for value
of Indebtedness of the Company or any Guarantor that is contractually subordinated to the
Notes or to any Note Guarantee with the net cash proceeds from a substantially concurrent
incurrence of Permitted Refinancing Indebtedness;




     (4) the payment of any dividend (or, in the case of any partnership or limited
liability company, any similar distribution) by a Restricted Subsidiary of the Company to
the holders of its Equity Interests on a pro rata basis;




     (5) 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
current or former officer, director or employee of the Company or any of its Restricted
Subsidiaries pursuant to any equity subscription agreement, stock option agreement,
shareholders’ agreement or similar agreement or otherwise approved by the Board of
Directors; provided that the aggregate price paid for all such repurchased, redeemed,
acquired or retired Equity Interests in any fiscal year may not exceed the sum of (i) $3.0
million and (ii) the cash proceeds of key-man life insurance policies received in such year
by the Company and its Restricted Subsidiaries (it being understood, however, that unused
amounts permitted to be paid pursuant to this proviso from any fiscal year are available to
be carried over to the subsequent fiscal year); provided, further, that the aggregate amount
spent pursuant to this clause (5) in any fiscal year in which unused amounts from a prior
fiscal year have been carried forward may not exceed the sum of (x) $6.0 million and (y) the
unused cash proceeds of such key-man life insurance policies;



51









 






     (6) 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;




     (7) the declaration and payment of regularly scheduled or accrued dividends to holders
of any class or series of common Disqualified Stock of the Company or any Restricted
Subsidiary of the Company issued on or after the date of this Indenture in accordance with
Section 4.09(a) hereof;




     (8) the declaration and payment of regularly scheduled or accrued dividends to holders
of any class or series of preferred Disqualified Stock of the Company or any Restricted
Subsidiary of the Company issued on or after the date of this Indenture in accordance
Section 4.09(a) hereof;




     (9) Permitted Payments to Sponsor;




     (10) cash payments in lieu of fractional shares issuable as dividends on Capital Stock
of the Company or any of its Restricted Subsidiaries; and




     (11) other Restricted Payments in an aggregate amount not to exceed $30.0 million since
the date of this Indenture.



     The amount of all Restricted Payments (other than cash) will 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.


Section 4.08 Dividend and Other Payment Restrictions Affecting Subsidiaries.




     (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 consensual encumbrance or
restriction on the ability of any Restricted Subsidiary to:




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




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




     (3) sell, lease or transfer any of its properties or assets to the Company or any of
its Restricted Subsidiaries (including for purposes of this clause (3) distributions of
property as dividends on capital stock).



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




     (1) agreements governing Existing Indebtedness, any Credit Facility, including the
Credit Agreement, and any other agreements as in effect on the date of this Indenture, and
any amendments, restatements, modifications, renewals, supplements, refundings, replacements
or refinancings of those agreements; provided that the amendments, restatements,
modifications, renewals, 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 those agreements on the date of this Indenture;




52











 






     (2) this Indenture, the Notes, the Note Guarantees and the Security Documents;




     (3) applicable law, rule, regulation or order;




     (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 or Capital Stock was incurred 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 Indenture to be incurred;




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




     (6) purchase money obligations for property or equipment acquired for use in the
business of the Company or any of its Restricted Subsidiaries and Capital Lease Obligations
that impose restrictions on the property purchased or leased of the nature described in
clause (3) of Section 4.08(a) hereof;




     (7) any agreement for the sale or other disposition of a Restricted Subsidiary that
restricts distributions by that Restricted Subsidiary pending the sale or other disposition;




     (8) 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) Liens permitted to be incurred under Section 4.12 hereof that limit the right of
the debtor to dispose of the assets subject to such Liens;




     (10) provisions limiting the disposition or distribution of assets or property in joint
venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements
and other similar agreements entered into with the approval of the Company’s Board of
Directors, which limitation is applicable only to the assets that are the subject of such
agreements; and




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


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 may incur Indebtedness (including Acquired Debt) or issue
Disqualified Stock, and the Guarantors may incur Indebtedness (including Acquired Debt) or issue
preferred stock, if, the Fixed Charge Coverage Ratio for the Company’s most recently ended four
full fiscal quarters for which financial statements are available immediately preceding the date on
which such additional Indebtedness is incurred or such Disqualified Stock or such preferred stock
is issued, as the case may be, would have been at least 2.0 to 1.0,



53









 




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 the
preferred stock had been issued, as the case may be, at the beginning of such four full fiscal
quarter period.




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




     (1) the incurrence by the Company and any Guarantor of (i) Indebtedness and letters of
credit under Credit Facilities in an aggregate principal amount at any one time outstanding
under this clause (1) (with letters of credit being deemed to have a principal amount equal
to the maximum potential liability of the Company and its Restricted Subsidiaries
thereunder) and (ii) Indebtedness under any receivables facility (such amounts outstanding
under any such receivables facility not to exceed $125.0 million outstanding at any given
time) in an aggregate principal amount at any one time outstanding under this clause (1) not
to exceed the sum of (i) the Borrowing Base and (ii) $75.0 million;




     (2) the incurrence by the Company or any of its Restricted Subsidiaries of Existing
Indebtedness and Existing Disqualified Stock;




     (3) the incurrence by the Company and the Guarantors of Indebtedness represented by the
Notes and the related Note Guarantees to be issued on the date of this Indenture or
Indebtedness represented by Additional Notes, or any other Parity Lien Debt, that may be
issued on a future date in exchange for 2012 Notes;




     (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 design, construction, installation or improvement of property, plant or equipment
used in the business of the Company or any of its Restricted Subsidiaries (whether through
the direct purchase of assets or the Capital Stock of any Person owning such assets) within
90 days of such purchase, design, construction, installation or improvement in an aggregate
principal amount, including all Indebtedness incurred to renew, refund, refinance, replace,
defease or discharge any Indebtedness incurred pursuant to this clause (4), not to exceed
the greater of (a) $25.0 million and (b) 3.0% of Total Assets 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 renew,
refund, refinance, replace, defease or discharge any Indebtedness (other than intercompany
Indebtedness) that was permitted by this Indenture to be incurred under Section 4.09(a)
hereof or clauses (2), (3) or (5) of this Section 4.09(b);




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




     (A) if the Company or any Guarantor is the obligor on such Indebtedness and the
payee is not the Company or a Guarantor, such Indebtedness must be expressly
subordinated, upon an Event of Default, to the prior payment in full in cash of all
Obligations then due with respect to the Notes, in the case of the Company, or the
Note Guarantee, in the case of a Guarantor; and



54









 






     (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 of the Company and (ii) any sale or other transfer of any such
Indebtedness to a Person that is not either the Company or a Restricted Subsidiary
of the Company, will be deemed, in each case, to constitute an incurrence of such
Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that
was not permitted by this clause (6);




     (7) the issuance by any of the Company’s Restricted Subsidiaries to the Company or to
any of its Restricted Subsidiaries of shares of preferred stock; provided, however, that:




     (A) any subsequent issuance or transfer of Equity Interests that results in any
such preferred stock being held by a Person other than the Company or a Restricted
Subsidiary of the Company; and




     (B) any sale or other transfer of any such preferred stock to a Person that is
not either the Company or a Restricted Subsidiary of the Company,




will be deemed, in each case, to constitute an issuance of such preferred stock by such
Restricted Subsidiary that was not permitted by this clause (7);




     (8) the incurrence by the Company or any of its Restricted Subsidiaries of Hedging
Obligations in the ordinary course of business;




     (9) the guarantee by the Company or any of the Guarantors 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; provided that if the Indebtedness being guaranteed
is subordinated to or pari passu with the Notes, then the guarantee shall be subordinated or
pari passu, as applicable, to the same extent as the Indebtedness guaranteed;




     (10) the incurrence by the Company or any of its Restricted Subsidiaries of
Indebtedness in respect of workers’ compensation claims, self-insurance obligations,
bankers’ acceptances, trade letters of credit, performance and surety bonds in the ordinary
course of business;




     (11) the incurrence by the Company or any of its Restricted Subsidiaries of
Indebtedness arising from the honoring by a bank or other financial institution of a check,
draft or similar instrument inadvertently drawn against insufficient funds, so long as such
Indebtedness is covered within five Business Days;




     (12) Indebtedness arising from any agreement entered into by the Company or any of its
Restricted Subsidiaries providing for indemnification, purchase price adjustment, holdback,
contingency payment obligations based on the performance of the acquired or disposed assets
or similar obligations (other than Guarantees of Indebtedness) incurred by any Person in
connection with the acquisition or disposition of assets permitted by this Indenture;




     (13) the incurrence by the Company or any of its Restricted Subsidiaries of Acquired
Debt of Restricted Subsidiaries acquired or assumed by the Company or another Restricted
Subsidiary of the Company, or resulting from the merger or consolidation of one or more
Persons into or with one or more Restricted Subsidiaries of the Company; provided that (a)
such Acquired Debt is not incurred in contemplation of the respective acquisition, merger or
consolidation, and (b) after giving effect to any Acquired Debt acquired or assumed pursuant
to this clause (13),



55









 






     (A) the Company would be permitted to incur at least $1.00 of additional
Indebtedness pursuant to Section 4.09(a) hereof; or




     (B) the Company’s Fixed Charge Coverage Ratio at the time of such acquisition
or merger, after giving pro forma effect to such acquisition or merger, would be
greater than the Company’s actual Fixed Charge Coverage Ratio immediately prior to
such acquisition or merger;




     (14) the incurrence by the Company or any of its Restricted Subsidiaries of
Indebtedness for the sole purpose of financing the payment of insurance premiums in the
ordinary course of business;




     (15) the incurrence by the Company of Disqualified Capital Stock issued to any officer,
director or employee of the Company or any of its Restricted Subsidiaries pursuant to any
equity subscription agreement, stock option agreement, shareholder’s agreement or similar
agreement, or otherwise approved by the Board of Directors; 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 Indebtedness incurred to renew, refund, refinance, replace,
defease or discharge any Indebtedness incurred pursuant to this clause (16), not to exceed
$50.0 million.



     The Company will not incur, and will not permit any Guarantor to incur, any Indebtedness
(including Permitted Debt) that is contractually subordinated in right of payment to any other
Indebtedness of the Company or such Guarantor unless such Indebtedness is also contractually
subordinated in right of payment to the Notes and the applicable Note Guarantee on substantially
identical terms; provided, however, that no Indebtedness will be deemed to be contractually
subordinated in right of payment to any other Indebtedness of the Company solely by virtue of being
unsecured or by virtue of being secured on a first or junior Lien basis.



     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) hereof, the Company will be permitted to classify such item of Indebtedness on the date of
its incurrence, or later reclassify all or a portion of such item of Indebtedness, in any manner
that complies with this Section 4.09. Indebtedness under Credit Facilities outstanding on the date
on which Notes are first issued and authenticated under this Indenture will initially be deemed to
have been incurred on such date in reliance on the exception provided by clause (1) of the
definition of Permitted Debt. The accrual of interest, the accretion or amortization of original
issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness
with the same terms, the reclassification of preferred stock as Indebtedness due to a change in
accounting principles, and the payment of dividends on Disqualified Stock in the form of additional
shares of the same class of Disqualified Stock will not be deemed to be an incurrence of
Indebtedness or an issuance of Disqualified Stock for purposes of this Section 4.09; provided, in
each such case, that the amount of any such accrual, accretion or payment is included in Fixed
Charges of the Company as accrued. Notwithstanding any other provision of this Section 4.09, the
maximum amount of Indebtedness that the Company or any Restricted Subsidiary may incur pursuant to
this Section 4.09 shall not be deemed to be exceeded solely as a result of fluctuations in exchange
rates or currency values.



56









 





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




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




     (2) the principal amount of the Indebtedness, in the case of any other Indebtedness;
and




     (3) in respect of Indebtedness of another Person secured by a Lien on the assets of the
specified Person, the lesser of:




     (A) the Fair Market Value of such assets at the date of determination; and




     (B) the amount of the Indebtedness of the other Person.


Section 4.10 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 the Asset Sale at least equal to the Fair Market Value of the
assets or Equity Interests issued or sold or otherwise disposed of; 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, each of the following will be deemed to be cash:




     (A) any liabilities, as shown on the Company’s most recent consolidated balance
sheet, of the Company or any Restricted Subsidiary (other than contingent
liabilities and liabilities that are by their terms subordinated to the Notes or any
Note Guarantee) that are assumed by the transferee of any such assets pursuant to a
customary novation agreement that releases the Company or such Restricted Subsidiary
from further liability;




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




     (C) any stock or assets of the kind referred to in clauses (2) or (4) of
Section 4.10(b) hereof.



     (b) Within 365 days after the receipt of any Net Proceeds from an Asset Sale or a
Casualty Event, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply
such Net Proceeds:




     (1) to repay Priority Lien Debt and, if such Priority Lien Debt is revolving credit
Indebtedness, to correspondingly reduce commitments with respect thereto;




     (2) to acquire all or substantially all of the assets of, or any Capital Stock of, a
Person engaged in a Permitted Business, if, after giving effect to any such acquisition of
Capital Stock, the Permitted Business is or becomes a Restricted Subsidiary of the Company;



57









 






     (3) to make a capital expenditure; or




     (4) to acquire other assets that are not classified as current assets under GAAP and
that are used or useful in a Permitted Business;


provided, that the application of any Net Proceeds from an Asset Sale that constitutes a Sale of
Collateral or from a Casualty Event in accordance with clauses (2) through (4) of this Section
4.10(b) shall be used to purchase, acquire or improve assets that would constitute Collateral; and
provided, further, that the requirements of clauses (2) through (4) of this Section 4.10(b) shall
be deemed to be satisfied if a binding agreement committing to make the acquisitions or
expenditures referenced in such clauses is entered into by the Company or its Restricted
Subsidiaries within 365 days after receipt of any Net Proceeds and such Net Proceeds are applied in
accordance with such agreement; provided, however, that if the Net Proceeds to be applied pursuant
to such agreement are not applied within 180 days of the date of such agreement, such Net Proceeds
shall be considered Excess Proceeds.




     (c) Any Net Proceeds from Asset Sales that are not applied or invested as provided
in Section 4.10(b) hereof will constitute “Excess Proceeds.” When the aggregate amount of Excess
Proceeds exceeds $15.0 million, within five days thereof, the Company will make an Asset Sale Offer
to all Holders of Notes and all holders of other Parity Lien Debt containing provisions similar to
those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of
sales of assets to purchase the maximum principal amount of Notes and such other Parity Lien Debt
that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be
equal to 100% of the principal amount plus accrued and unpaid interest to the date of purchase (or,
in respect of such Parity Lien Debt, such lesser price, if only, as may be provided for by the
terms of such Parity Lien Debt), and will be payable in cash. To the extent that the aggregate
amount of Notes and Parity Lien Debt tendered pursuant to an Asset Sale Offer is less than the
Excess Proceeds, the Company may use such deficiency for any purpose not otherwise prohibited by
the Indenture. If the aggregate principal amount of Notes and Parity Lien Debt tendered into such
Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such
other Parity Lien Debt to be purchased on a pro rata basis. Upon completion of each Asset Sale
Offer, the amount of Excess Proceeds will be reset at zero.



     (d) The Company will comply with the requirements of Rule 14e-1 under the Exchange
Act and any other securities laws and regulations thereunder to the extent those laws and
regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale
Offer. To the extent that the provisions of any securities laws or regulations conflict with
Section 3.09 hereof or this Section 4.10, the Company will comply with the applicable securities
laws and regulations and will not be deemed to have breached its obligations under Section 3.09
hereof or this Section 4.10 by virtue of such compliance.


Section 4.11 Transactions with Affiliates.




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




     (1) the 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 by the Company or such Restricted Subsidiary with an unrelated Person; and



58









 






     (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 $7.5 million, a
resolution of the Board of Directors of the Company set forth in an Officers’
Certificate certifying that such Affiliate Transaction complies with clause (1) of
this Section 4.11(a) and that such Affiliate Transaction has been approved by a
majority of the disinterested members, if any, of the Board of Directors of the
Company; 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 such Subsidiary of such Affiliate
Transaction from a financial point of view issued by an accounting, appraisal or
investment banking firm of national standing.



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




     (1) any employment agreement, employee benefit plan, officer, employee or director
indemnification agreement or any similar arrangement entered into by the Company or any of
its Restricted Subsidiaries in the ordinary course of business and payments pursuant
thereto;




     (2) transactions between or among the Company and/or its Restricted Subsidiaries;




     (3) transactions with a Person (other than an Unrestricted Subsidiary of the Company)
that is an Affiliate of the Company solely because the Company owns, directly or through a
Restricted Subsidiary, an Equity Interest in, or controls, such Person;




     (4) payment of reasonable directors’ fees to Persons who are not otherwise Affiliates
of the Company;




     (5) any issuance of Equity Interests (other than Disqualified Stock) of the Company to
Affiliates of the Company;




     (6) Restricted Payments that do not violate Section 4.07 hereof;




     (7) Permitted Payments to Sponsor;




     (8) loans or advances to employees in the ordinary course of business not to exceed
$3.0 million in the aggregate at any one time outstanding; and




     (9) payments of cash bonuses to officers and employees approved by the Board of
Directors.


Section 4.12 Liens.




     The Company will not, and will not permit any of its Restricted Subsidiaries to, directly
or indirectly, create, incur, assume or suffer to exist any Lien of any kind on any asset now owned
or hereafter acquired, except Permitted Liens.


Section 4.13 Business Activities.







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     The Company will not, and will not permit any of its Restricted Subsidiaries to, engage
in any business other than Permitted Businesses, except to such extent as would not be material to
the Company and its Restricted Subsidiaries taken as a whole.


Section 4.14 Corporate Existence.




     Subject to Article 5 hereof, the Company shall do or cause to be done all things
reasonably necessary to preserve and keep in full force and effect:




     (1) its corporate existence, and the corporate, partnership or other existence of each
of the Guarantors, in accordance with the respective organizational documents (as the same
may be amended from time to time) of the Company or any Guarantor; and




     (2) the material rights (charter and statutory), licenses and franchises of the Company
and the Guarantors; provided, however, that the Company shall not be required to preserve
any such right, license or franchise, or the corporate, partnership or other existence of
any of the Guarantors, if the Board of Directors shall determine that the preservation
thereof, or the existence of such Guarantor, is no longer desirable in the conduct of the
business of the Company and the Guarantors, taken as a whole, and that the loss thereof is
not adverse in any material respect to the Holders of the Notes.


Section 4.15 Offer to Repurchase Upon Change of Control.




     (a) Upon the occurrence of a Change of Control, the Company will commence, within the
time frame set forth in the last paragraph of Section 4.15(b) hereof, an offer (a “Change of
Control Offer”) to each Holder to repurchase all or any part (equal to $1,000 or an integral
multiple of $1,000) of that Holder’s Notes at a purchase price in cash equal to 101% of the
aggregate principal amount of Notes repurchased plus accrued and unpaid interest on the Notes
repurchased to the date of purchase, subject to the rights of Holders on the relevant record date
to receive interest due on the relevant interest payment date (the “Change of Control Payment”).
Within ten days following any Change of Control, the Company will mail a notice to each Holder
describing the transaction or transactions that constitute the Change of Control and stating:




     (1) that the Change of Control Offer is being made pursuant to this Section 4.15 and
that all Notes tendered will be accepted for payment;




     (2) the purchase price and the purchase date, which shall be no earlier than 30 days
and no later than 60 days from the date such notice is mailed (the “Change of Control
Payment Date”);




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




     (4) that, unless the Company defaults in the payment of the Change of Control Payment,
all Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue
interest after the Change of Control Payment Date;




     (5) that Holders electing to have any Notes purchased pursuant to a Change of Control
Offer will be required to surrender the Notes, with the form entitled “Option of Holder to
Elect Purchase” attached to the Notes completed, or transfer by book-entry transfer, to the
Paying Agent at the address specified in the notice prior to the close of business on the
third Business Day preceding the Change of Control Payment Date;



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     (6) that Holders will be entitled to withdraw their election if the Paying Agent
receives, not later than the close of business on the second Business Day preceding the
Change of Control Payment Date, a telegram, telex, facsimile transmission or letter setting
forth the name of the Holder, the principal amount of Notes delivered for purchase, and a
statement that such Holder is withdrawing his election to have the Notes purchased; and




     (7) that Holders whose Notes are being purchased only in part will be issued new Notes
equal in principal amount to the unpurchased portion of the Notes surrendered, which
unpurchased portion must be equal to $1,000 in principal amount or an integral multiple
thereof.



     The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any
other securities laws and regulations thereunder to the extent those laws and regulations are
applicable in connection with the repurchase of the Notes as a result of a Change in Control. To
the extent that the provisions of any securities laws or regulations conflict with the provisions
of Section 3.09 hereof or this Section 4.15, the Company will comply with the applicable securities
laws and regulations and will not be deemed to have breached its obligations under Section 3.09
hereof or this Section 4.15 by virtue of such compliance.



     (b) On the Change of Control Payment Date, the Company will, to the extent lawful:




     (1) accept for payment all Notes or portions of Notes properly tendered pursuant to the
Change of Control Offer;




     (2) deposit with the Paying Agent an amount equal to the Change of Control Payment in
respect of all Notes or portions of Notes properly tendered; and




     (3) deliver or cause to be delivered to the Trustee the Notes properly accepted
together with an Officers’ Certificate stating the aggregate principal amount of Notes or
portions of Notes being purchased by the Company.



     The Paying Agent will promptly mail to each Holder of Notes properly tendered the Change of
Control Payment for such Notes, and the Trustee will promptly authenticate and mail (or cause to be
transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased
portion of the Notes surrendered, if any. The Company will publicly announce the results of the
Change of Control Offer on or as soon as practicable after the Change of Control Payment Date.



     Prior to complying with any of the provisions of this Section 4.15, but in any event within 90
days following a Change of Control, the Company will either repay all outstanding Priority Debt or
obtain the requisite consents, if any, under all agreements governing outstanding Priority Debt to
permit the repurchase of Notes required by this Section 4.15.



     (c) Notwithstanding anything to the contrary in this Section 4.15, the Company will
not be required to make a Change of Control Offer upon a Change of Control 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 Section 3.09 hereof and this Section 4.15 and purchases all Notes
properly tendered and not withdrawn under the Change of Control Offer, or (2) notice of redemption
has been given pursuant to Section 3.07 hereof, unless and until there is a default in payment of
the applicable redemption price.


Section 4.16 Limitation on Issuances and Sales of Equity Interests in Wholly-Owned
Subsidiaries.







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     The Company will not, and will not permit any of its Restricted Subsidiaries to,
transfer, convey, sell, lease or otherwise dispose of any Equity Interests in any Wholly-Owned
Restricted Subsidiary of the Company to any Person (other than the Company or a Wholly-Owned
Subsidiary of the Company), unless:




     (1) such transfer, conveyance, sale, lease or other disposition is of all the Equity
Interests in such Wholly-Owned Restricted Subsidiary; and




     (2) the Net Proceeds from such transfer, conveyance, sale, lease or other disposition
are applied in accordance with Section 4.10 hereof.



     In addition, the Company will not permit any Wholly-Owned Restricted Subsidiary of the Company
to issue any of its Equity Interests (other than, if necessary, shares of its Capital Stock
constituting directors’ qualifying shares) to any Person other than to the Company or a
Wholly-Owned Restricted Subsidiary of the Company.


Section 4.17 Limitation on Issuances of Guarantees of Indebtedness.




     The Company will not permit any of its Restricted Subsidiaries which is not a Guarantor,
directly or indirectly, to Guarantee or pledge any assets to secure the payment of any other
Indebtedness of the Company unless such Restricted Subsidiary simultaneously executes and delivers
a supplemental indenture to this Indenture providing for the Guarantee of the payment of the Notes
by such Restricted Subsidiary, which Guarantee will be senior to or pari passu with such Restricted
Subsidiary’s Guarantee of or pledge to secure such other Indebtedness.



     The Note Guarantee of a Guarantor will automatically and unconditionally be released:




     (1) in connection with any sale or other disposition of all or substantially all of the
assets of that Guarantor (including by way of merger or consolidation) to a Person that is
not (either before or after giving effect to such transaction) the Company or a Restricted
Subsidiary of the Company, if the sale or other disposition does not violate Section 4.10
hereof;




     (2) in connection with any sale or other disposition of all of the Capital Stock of
that Guarantor (or that Guarantor’s direct or indirect parent) to a Person that is not
(either before or after giving effect to such transaction) the Company or a Restricted
Subsidiary of the Company, if the sale or other disposition does not violate Section 4.10
hereof;




     (3) if the Company designates any Restricted Subsidiary that is a Guarantor to be an
Unrestricted Subsidiary in accordance with the applicable provisions of this Indenture; or




     (4) upon legal defeasance or satisfaction and discharge of this Indenture as provided
in Section 8.02 and Article 12 hereof.


Section 4.18 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.




62












 





Section 4.19 Additional Note Guarantees.




     If the Company or any of its Restricted Subsidiaries acquires or creates another Domestic
Restricted Subsidiary after the date of this Indenture, then that newly acquired or created
Domestic Restricted Subsidiary will become a Guarantor and execute a supplemental indenture and
deliver an Opinion of Counsel satisfactory to the Trustee within 30 Business Days of the date on
which it was acquired or created; provided that any Domestic Restricted Subsidiary that constitutes
an Immaterial Subsidiary need not become a Guarantor until such time as it ceases to be an
Immaterial Subsidiary. The form of such Note Guarantee is attached as Exhibit E hereto.


Section 4.20 Designation of Restricted and Unrestricted Subsidiaries.




     The Board of Directors of the Company may designate any Restricted Subsidiary to be an
Unrestricted Subsidiary if that designation would not cause a Default. If a Restricted Subsidiary
is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding
Investments owned by the Company and its Restricted Subsidiaries in the Subsidiary designated as
Unrestricted will be deemed to be an Investment made as of the time of the designation and will
reduce the amount available for Restricted Payments under Section 4.07 hereof or under one or more
clauses of the definition of Permitted Investments, as determined by the Company. That designation
will only be permitted if the Investment would be permitted at that time and if the Restricted
Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.



     Any designation of a Subsidiary of the Company as an Unrestricted Subsidiary will be evidenced
to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of
Directors 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 hereof. If,
at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an
Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of
this Indenture and any Indebtedness of such Subsidiary will 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 hereof, the Company will be in default of such
covenant. The Board of Directors of the Company may at any time redesignate any Unrestricted
Subsidiary to be a Restricted Subsidiary of the Company if that redesignation would not cause a
Default; provided that such designation will 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 will only be permitted if (1) such Indebtedness is permitted under
Section 4.09 hereof, calculated on a pro forma basis as if such designation had occurred at the
beginning of the four full fiscal quarter reference period; and (2) no Default or Event of Default
would be in existence following such designation.



ARTICLE 5

SUCCESSORS



Section 5.01 Merger, Consolidation, or Sale of Assets.




     The Company shall not, directly or indirectly: (i) consolidate or merge with or into
another Person (whether or not the Company is the surviving corporation); or (2) sell, assign,
transfer, convey or otherwise dispose of all or substantially all of the properties or assets of
the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions,
to another Person, unless:




     (1) either:



63









 






     (A) the Company is the surviving corporation; or




     (B) the Person formed by or surviving any such consolidation or merger (if
other than the Company) or to which such sale, assignment, transfer, conveyance or
other disposition has been made is a corporation organized or existing under the
laws of the United States, any state of the United States or the District of
Columbia;




     (2) the Person formed by or surviving any such consolidation or merger (if other than
the Company) or the Person to which such sale, assignment, transfer, conveyance or other
disposition has been made assumes all the obligations of the Company under the Notes, this
Indenture, and the Security Documents pursuant to agreements reasonably satisfactory to the
Trustee;




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




     (4) the Company or the Person formed by or surviving any such consolidation or merger
(if other than the Company), or to which such sale, assignment, transfer, conveyance or
other disposition has been made would, on the date of such transaction after giving pro
forma effect thereto and any related financing transactions as if the same had occurred at
the beginning of the applicable four full fiscal quarter period:




     (A) be permitted to incur at least $1.00 of additional Indebtedness pursuant to
the Fixed Charge Coverage Ratio test set forth in the Section 4.09(a) hereof; or




     (B) have a Fixed Charge Coverage Ratio that is greater than the actual Fixed
Charge Coverage Ratio of the Issuer immediately prior to such transaction.



     In addition, the Company will not, directly or indirectly, lease all or substantially all of
its and its Restricted Subsidiaries, taken as a whole, properties or assets, in one or more related
transactions, to any other Person.



     This Section 5.01 will not apply to:




     (1) a merger of the Company with an Affiliate solely for the purpose of reincorporating
the Company in another jurisdiction; or




     (2) any consolidation or merger, or any sale, assignment, transfer, conveyance, lease
or other disposition of assets between or among the Company and its Restricted Subsidiaries.


Section 5.02 Successor Corporation Substituted.




     Upon any consolidation or merger, or any sale, assignment, transfer, lease, conveyance or
other disposition of all or substantially all of the properties or assets of the Company in a
transaction that is subject to, and that complies with the provisions of, Section 5.01 hereof, the
successor Person formed by such consolidation or into or with which the Company is merged or to
which such sale, assignment, transfer, lease, conveyance or other disposition is made shall succeed
to, and be substituted for (so that from and after the date of such consolidation, merger, sale,
assignment, transfer, lease, conveyance or other disposition, the provisions of this Indenture
referring to the “Company” shall refer instead to the successor Person and not to the Company), and
may exercise every right and power of the Company under this Indenture with the same effect as if
such successor Person had been named as the Company herein; provided, however, that the predecessor
Company shall not be relieved from the obligation to pay



64









 




the principal of and interest on the Notes except in the case of a sale of all of the
Company’s assets in a transaction that is subject to, and that complies with the provisions of,
Section 5.01 hereof.




ARTICLE 6

DEFAULTS AND REMEDIES



Section 6.01 Events of Default.




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




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




     (2) default in the payment when due (at maturity, upon redemption or otherwise) of the
principal of, or premium, if any, on the Notes;




     (3) failure by the Company or any of its Restricted Subsidiaries to comply with the
provisions of Sections 4.15 or 5.01 hereof;




     (4) failure by the Company or any of its Restricted Subsidiaries for 60 days after
notice to the Company by the Trustee or the Holders of at least 25% in aggregate principal
amount of the Notes then outstanding voting as a single class to comply with any of the
other agreements in this Indenture or any of the Security Documents;




     (5) default under any mortgage, indenture or instrument under which there may be issued
or by which there may be secured or evidenced any Indebtedness for money borrowed by the
Company or any of its Restricted Subsidiaries (or the payment of which is guaranteed by the
Company or any of its Restricted Subsidiaries), whether such Indebtedness or Guarantee now
exists, or is created after the date of this Indenture, if that default:




     (A) is caused by a failure to pay the principal of such Indebtedness at the
final Stated Maturity of such Indebtedness (a “Payment Default”); or




     (B) results in the acceleration of such Indebtedness prior to its express
maturity,




and, in each case, the principal amount of any such Indebtedness, together with the
principal amount of any other such Indebtedness under which there has been a Payment Default
or the maturity of which has been so accelerated, aggregates $20.0 million or more;




     (6) failure by the Company or any of its Restricted Subsidiaries to pay final judgments
entered by a court or courts of competent jurisdiction aggregating in excess of $20.0
million (net of any amount covered by insurance of a reputable and creditworthy insurer that
has not contested coverage or reserved rights with respect to the underlying claim), which
judgments are not paid, discharged or stayed for a period of 60 days;




     (7) the occurrence of any of the following:




     (A) except as permitted by this Indenture, any Security Document ceases for any
reason to be fully enforceable; provided, that it will not be an Event of Default
under this clause (7)(a) if the sole result of the failure of one or more Security
Documents to be fully enforceable is that any Parity Lien purported to be granted
under such Security Documents on Collateral, individually or in the aggregate,
having an estimated good faith



65









 






     value of not more than $10.0 million ceases to be an enforceable and perfected
Lien, subject as to priority only to Permitted Prior Liens;




     (B) any Parity Lien purported to be granted under any Security Document on
Collateral, individually or in the aggregate, having an estimated good faith value
in excess of $10.0 million ceases to be an enforceable and perfected Lien, subject
as to priority only to Permitted Prior Liens; or




     (C) the Company or any other Pledgor, or any Person acting on behalf of any of
them, denies or disaffirms, in writing, any obligation of the Company or any other
Pledgor set forth in or arising under any Security Document;




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




     (A) commences a voluntary case,




     (B) consents to the entry of an order for relief against it in an involuntary
case,




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




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




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




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




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




     (B) appoints a custodian of the Company or any of its Restricted Subsidiaries
that is a Significant Subsidiary or any group of Restricted Subsidiaries of the
Company that, taken together, would constitute a Significant Subsidiary or for all
or substantially all of the property of the Company or any of its Restricted
Subsidiaries that is a Significant Subsidiary or any group of Restricted
Subsidiaries of the Company that, taken together, would constitute a Significant
Subsidiary; or




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




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




     (10) except as permitted by this Indenture, any Note Guarantee is held in any judicial
proceeding to be unenforceable or invalid or ceases for any reason to be in full force and
effect, or any Guarantor, or any Person acting on behalf of any Guarantor, denies or
disaffirms its obligations under its Note Guarantee.



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Section 6.02 Acceleration.




     In the case of an Event of Default specified in clause (8) or (9) of Section 6.01 hereof,
with respect to the Company, any Restricted Subsidiary of the Company that is a Significant
Subsidiary or any group of Restricted Subsidiaries of the Company that, taken together, would
constitute a Significant Subsidiary, all outstanding Notes will become due and payable immediately
without further action or notice. If any other Event of Default occurs and is continuing, the
Trustee or the Holders of at least 25% in aggregate principal amount of the then outstanding Notes
may declare all the Notes to be due and payable immediately.



     Upon any such declaration, the Notes shall become due and payable immediately.



     The Holders of a majority in aggregate principal amount of the then outstanding Notes by
written notice to the Trustee may, on behalf of all of the Holders, rescind an acceleration and its
consequences, if the rescission would not conflict with any judgment or decree and if all existing
Events of Default (except nonpayment of principal, interest or premium, if any, that has become due
solely because of the acceleration) have been cured or waived.


Section 6.03 Other Remedies.




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



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


Section 6.04 Waiver of Past Defaults.




     Holders of not less than a majority in aggregate principal amount of the then outstanding
Notes by notice to the Trustee may on behalf of the Holders of all of the Notes waive an existing
Default or Event of Default and its consequences hereunder, except a continuing Default or Event of
Default in the payment of the principal of, premium, if any, or interest on, the Notes (including
in connection with an offer to purchase); provided, however, that with respect to a Default or
Event of Default, other than a continuing Default or Event of Default in the payment of the
principal of, premium, if any, or interest on, the Notes (including in connection with an offer to
purchase), the Holders of a majority in aggregate principal amount of the then outstanding Notes
may rescind an acceleration and its consequences, including any related payment default that
resulted from such acceleration. Upon any such waiver, such Default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other Default or impair any right
consequent thereon.


Section 6.05 Control by Majority.




     Holders of a majority in aggregate principal amount of the then outstanding Notes may
direct the time, method and place of conducting any proceeding for exercising any remedy available
to the Trustee or exercising any trust or power conferred on it. However, the Trustee may refuse
to follow any direction



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that conflicts with law or this Indenture 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.



Section 6.06 Limitation on Suits.




     A Holder may pursue a remedy with respect to this Indenture or the Notes only if:




     (1) such Holder gives to the Trustee written notice that an Event of Default is
continuing;




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




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




     (4) the Trustee does not comply with the request within 60 days after receipt of the
request and the offer of security or indemnity; and




     (5) during such 60-day period, Holders of a majority in aggregate principal amount of
the then outstanding Notes do not give the Trustee a direction inconsistent with such
request.



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


Section 6.07 Rights of Holders of Notes to Receive Payment.




     Notwithstanding any other provision of this Indenture, the right of any Holder of a Note
to receive payment of principal, premium, if any, and interest on the Note, on or after the
respective due dates expressed in the Note (including in connection with an offer to purchase), or
to bring suit for the enforcement of any such payment on or after such respective dates, shall not
be impaired or affected without the consent of such Holder; provided that a Holder shall not have
the right to institute any such suit for the enforcement of payment if and to the extent that the
institution or prosecution thereof or the entry of judgment therein would, under applicable law,
result in the surrender, impairment, waiver or loss of the Lien of this Indenture upon any property
subject to such Lien.


Section 6.08 Collection Suit by Trustee.




     If an Event of Default specified in Section 6.01(1) or (2) hereof occurs and is
continuing, the Trustee is authorized to recover judgment in its own name and as trustee of an
express trust against the Company for the whole amount of principal of, premium, if any, and
interest remaining unpaid on, the Notes and interest on overdue principal and, to the extent
lawful, interest and such further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.


Section 6.09 Trustee May File Proofs of Claim.




     The Trustee is authorized to file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel) and the Holders of the Notes allowed in any judicial proceedings relative to the Company
(or any other obligor upon the Notes), its creditors or its property and shall be entitled and
empowered to collect, receive and



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distribute any money or other property payable or deliverable on any such claims and any
custodian in any such judicial proceeding is hereby authorized by each Holder to make such payments
to the Trustee, and in the event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 7.07 hereof. To the extent that the payment of any
such compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under Section 7.07 hereof out of the estate in any such
proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien on, and
shall be paid out of, any and all distributions, dividends, money, securities and other properties
that the Holders may be entitled to receive in such proceeding whether in liquidation or under any
plan of reorganization or arrangement or otherwise. Nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any
plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of
any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding.



Section 6.10 Priorities.




     If the Trustee collects any money pursuant to this Article 6, it shall pay out the money
in the following order:




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




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




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



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


Section 6.11 Undertaking for Costs.




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



ARTICLE 7

TRUSTEE AND COLLATERAL TRUSTEE



Section 7.01 Duties of Trustee.







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



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




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




     (2) in the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the requirements of this
Indenture. However, the Trustee will examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture.



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




     (1) this paragraph does not limit the effect of paragraph (b) of this Section 7.01;




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




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



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



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



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



     (g) In no event shall the Trustee be personally liable (i) for special,
consequential or punitive damages, (ii) for the acts or omissions of its nominees, correspondents,
clearing agencies or securities depositories, (iii) for the acts or omissions of brokers or
dealers, and (iv) for any losses due to forces beyond the control of the Trustee, including without
limitation strikes, work stoppages, acts of war or terrorism, insurrection, revolution, nuclear or
natural catastrophes or acts of God and interruptions, loss or malfunctions of utilities,
communications or computer (software and hardware) services. The Trustee shall have no
responsibility for the accuracy of any information provided to the Holders or any other person that
has been obtained from, or provided to the Trustee by, any other entity.



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Section 7.02 Rights of Trustee.




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



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



     (c) The Trustee may act through its attorneys and agents and will not be responsible
for the misconduct or negligence of any agent appointed with due care.



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



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



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


Section 7.03 Individual Rights of Trustee.




     The Trustee in its individual or any other capacity may become the owner or pledgee of
Notes and may otherwise deal with the Company or any Affiliate of the Company with the same rights
it would have if it were not Trustee. However, in the event that the Trustee acquires any
conflicting interest it must eliminate such conflict within 90 days, apply to the SEC for
permission to continue as trustee (if this Indenture has been qualified under the TIA) or resign.
Any Agent may do the same with like rights and duties. The Trustee is also subject to Sections
7.10 and 7.11 hereof.


Section 7.04 Trustee’s Disclaimer.




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


Section 7.05 Notice of Defaults.




     If a Default or Event of Default occurs and is continuing and to the actual knowledge of
the Trustee, the Trustee will mail to Holders of Notes a notice of the Default or Event of Default
within 90
days after it occurs. Except in the case of a Default or Event of Default in payment of
principal of,



71









 




premium, if any, or interest on any Note, the Trustee may withhold the notice if and
so long as a committee of its Responsible Officers in good faith determines that withholding the
notice is in the interests of the Holders of the Notes.



Section 7.06 Reports by Trustee to Holders of the Notes.




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



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


Section 7.07 Compensation and Indemnity.




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



     (b) The Company and the Guarantors will jointly and severally indemnify the Trustee
against any and all losses, liabilities, claims, actions, suits, costs or expenses incurred by it
arising out of or in connection with the acceptance or administration of its duties under this
Indenture, including the reasonable out-of-pocket costs and expenses of enforcing this Indenture
against the Company and the Guarantors (including this Section 7.07) and defending itself against
any claim (whether asserted by the Company, the Guarantors, any Holder or any other Person) or
liability in connection with the exercise or performance of any of its powers or duties hereunder,
except to the extent any such loss, liability or expense may be attributable to its negligence,
willful misconduct or bad faith. The Trustee will notify the Company promptly of any claim for
which it may seek indemnity. Failure by the Trustee to so notify the Company will not relieve the
Company or any of the Guarantors of their obligations hereunder. The Company or such Guarantor
will defend the claim and the Trustee will cooperate in the defense. The Trustee may have separate
counsel at its own expense (i) unless the Company fails to assume the defense of such claim, (ii)
if there is an actual conflict of interests or (iii) if there is the potential for the imposition
of criminal liability, in which case the Company will pay the reasonable fees and expenses of such
counsel. Neither the Company nor any Guarantor need pay for any settlement made without its
consent, which consent will not be unreasonably withheld, conditioned or delayed.



     (c) The obligations of the Company and the Guarantors under this Section 7.07 will
survive the satisfaction and discharge of this Indenture and the resignation or removal of the
Trustee.



     (d) To secure the Company’s and the Guarantors’ payment obligations in this Section
7.07, the Trustee will have a Lien prior to the Notes on all money or property held or collected by
the Trustee,



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except that held in trust to pay principal and interest on particular Notes. Such
Lien will survive the satisfaction and discharge of this Indenture and the resignation or removal
of the Trustee.




     (e) When the Trustee incurs expenses or renders services after an Event of Default
specified in Section 6.01(8) or (9) hereof occurs, the expenses and the compensation for the
services (including the fees and expenses of its agents and counsel) are intended to constitute
expenses of administration under any Bankruptcy Law.



     (f) The Trustee will comply with the provisions of TIA § 313(b)(2) to the extent
applicable.


Section 7.08 Replacement of Trustee.




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



     (b) The Trustee may resign in writing at any time and be discharged from the trust
hereby created by so notifying the Company at least 30 days in advance. The Holders of a majority
in aggregate principal amount of the then outstanding Notes may remove the Trustee by so notifying
the Trustee and the Company in writing. The Company may remove the Trustee if:




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




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




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




     (4) the Trustee becomes incapable of acting.



     (c) If the Trustee resigns or is removed or if a vacancy exists in the office of
Trustee for any reason, the Company will promptly appoint a successor Trustee. Within one year
after the successor Trustee takes office, the Holders of a majority in aggregate principal amount
of the then outstanding Notes may appoint a successor Trustee to replace the successor Trustee
appointed by the Company.



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



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



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



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Section 7.09 Successor Trustee by Merger, etc.




     If the Trustee consolidates, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another corporation, the successor corporation without any
further act will be the successor Trustee, so long as it is eligible to serve as Trustee under
Section 7.10 hereof.


Section 7.10 Eligibility; Disqualification.




     There will at all times be a Trustee hereunder that is a corporation organized and doing
business under the laws of the United States of America or of any state thereof that is authorized
under such laws to exercise corporate trustee power, that is subject to supervision or examination
by federal or state authorities and that has a combined capital and surplus of at least $50.0
million as set forth in its most recent published annual report of condition.



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


Section 7.11 Preferential Collection of Claims Against Company.




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



Section 7.12 Appointment




     Each Holder agrees to the appointment of the Trustee, as the initial trustee for the
benefit of Holders under this Indenture, and to the appointment of the Collateral Trustee as the
initial collateral trustee, for the benefit of Holders under the Collateral Trust Agreement. The
Collateral Trustee may act as collateral trustee, collateral agent or any similar title that the
Collateral Trustee deems necessary or convenient for the purpose of perfecting the security
interests in the Collateral. Each Holder authorizes the Trustee and Collateral Trustee, as
applicable, each in such capacity, through its agents or employees, to execute and deliver any Note
Documents and take such actions on its behalf under the provisions of this Indenture, the
Collateral Trust Agreement and the other Note Documents and to exercise such powers and perform
such duties as are expressly delegated to such Trustee or Collateral Trustee, as applicable, by the
terms of this Indenture, the Collateral Trust Agreement and the other Note Documents, together with
such actions and powers as are reasonably incidental thereto.



ARTICLE 8

LEGAL DEFEASANCE AND COVENANT DEFEASANCE



Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance.




     The Company may at any time, at the option of its Board of Directors evidenced by a
resolution set forth in an Officers’ Certificate, elect to have either Section 8.02 or 8.03 hereof
be applied to all outstanding Notes upon compliance with the conditions set forth below in this
Article 8.


Section 8.02 Legal Defeasance and Discharge.




     Upon the Company’s exercise under Section 8.01 hereof of the option applicable to this
Section 8.02, the Company and each of the Guarantors will, subject to the satisfaction of the
conditions set forth in Section 8.04 hereof, be deemed to have been discharged from their
obligations with respect to all



74









 




outstanding Notes (including the Note Guarantees) 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 (including the Note
Guarantees), which will thereafter be deemed to be “outstanding” only for the purposes of Section
8.05 hereof and the other Sections of this Indenture referred to in clauses (1) and (2) below, and
to have satisfied all their other obligations under such Notes, the Note Guarantees and this
Indenture (and the Trustee, on demand of and at the expense of the Company, shall execute proper
instruments acknowledging the same), except for the following provisions which will survive until
otherwise terminated or discharged hereunder:





     (1) the rights of Holders of outstanding Notes to receive payments in respect of the
principal of, or interest or premium, if any, on, such Notes when such payments are due from
the trust referred to in Section 8.04 hereof;




     (2) the Company’s obligations with respect to such Notes under Article 2 and Section
4.02 hereof;




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




     (4) this Article 8.



     Subject to compliance with this Article 8, the Company may exercise its option under this
Section 8.02 notwithstanding the prior exercise of its option under Section 8.03 hereof.


Section 8.03 Covenant Defeasance.




     Upon the Company’s exercise under Section 8.01 hereof of the option applicable to this
Section 8.03, the Company and each of the Guarantors will, subject to the satisfaction of the
conditions set forth in Section 8.04 hereof, be released from each of their obligations under the
covenants contained in Sections 4.05, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.15, 4.16, 4.17,
4.18, 4.19 and 4.20 hereof and clause (4) of Section 5.01 hereof with respect to the outstanding
Notes on and after the date the conditions set forth in Section 8.04 hereof are satisfied
(hereinafter, “Covenant Defeasance”), and the Notes will thereafter be deemed not “outstanding” for
the purposes of any direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but will continue to be deemed
“outstanding” for all other purposes hereunder (it being understood that such Notes will not be
deemed outstanding for accounting purposes). For this purpose, Covenant Defeasance means that,
with respect to the outstanding Notes and Note Guarantees, the Company and the Guarantors may omit
to comply with and will have no liability in respect of any term, condition or limitation set forth
in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein
to any such covenant or by reason of any reference in any such covenant to any other provision
herein or in any other document and such omission to comply will not constitute a Default or an
Event of Default under Section 6.01 hereof, but, except as specified above, the remainder of this
Indenture and such Notes and Note Guarantees will be unaffected thereby. In addition, upon the
Company’s exercise under Section 8.01 hereof of the option applicable to this Section 8.03, subject
to the satisfaction of the conditions set forth in Section 8.04 hereof, Sections 6.01(3) through
6.01(5) hereof will not constitute Events of Default.


Section 8.04 Conditions to Legal or Covenant Defeasance.




     In order to exercise either Legal Defeasance or Covenant Defeasance under either Section
8.02 or 8.03 hereof:



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     (1) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of
the Holders, cash in U.S. dollars, non-callable Government Securities, or a combination
thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized
investment bank, appraisal firm, or firm of independent public accountants, to pay the
principal of, premium, if any, and interest on, the outstanding Notes on the stated date for
payment thereof or on the applicable redemption date, as the case may be, and the Company
must specify whether the Notes are being defeased to such stated date for payment or to a
particular redemption date;




     (2) in the case of an election under Section 8.02 hereof, the Company must deliver to
the Trustee an Opinion of Counsel confirming that:




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




          (B) since the date of this Indenture, there has been a change in the applicable
federal income tax law,




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




     (3) in the case of an election under Section 8.03 hereof, the Company must deliver to
the Trustee an Opinion of Counsel confirming that the Holders of the outstanding Notes will
not recognize income, gain or loss for federal income tax purposes as a result of such
Covenant Defeasance and will be subject to federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such Covenant Defeasance
had not occurred;




     (4) no Default or Event of Default shall have occurred and be continuing on the date of
such deposit (other than a Default or Event of Default resulting from the borrowing of funds
to be applied to such deposit and the granting of Liens in connection therewith) and the
deposit will not result in a breach or violation of, or constitute a 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;




     (5) such Legal Defeasance or Covenant Defeasance will not result in a breach or
violation of, or constitute a default under, any material agreement or instrument (other
than this Indenture) to which the Company or any of its Subsidiaries is a party or by which
the Company or any of its Subsidiaries is bound;




     (6) 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 any creditors of the Company or others; and




     (7) 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.



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     The Collateral will be released from the Lien securing the notes, as provided under the
Collateral Trust Agreement upon a Legal Defeasance or Covenant Defeasance in accordance with the
provisions in this Article 8.


Section 8.05 Deposited Money and Government Securities to be Held in Trust; Other
Miscellaneous Provisions.




     Subject to Section 8.06 hereof, all money and non-callable Government Securities
(including the proceeds thereof) deposited with the Trustee (or other qualifying trustee,
collectively for purposes of this Section 8.05, the “Trustee”) pursuant to Section 8.04 hereof in
respect of the outstanding Notes will be held in trust and applied by the Trustee, in accordance
with the provisions of such Notes and this Indenture, to the payment, either directly or through
any Paying Agent (including the Company acting as Paying Agent) as the Trustee may determine, to
the Holders of such Notes of all sums due and to become due thereon 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 will pay and indemnify the Trustee against any tax, fee or other charge imposed on
or assessed against the cash or non-callable Government Securities deposited pursuant to Section
8.04 hereof or the principal and interest received in respect thereof other than any such tax, fee
or other charge which by law is for the account of the Holders of the outstanding Notes.



     Notwithstanding anything in this Article 8 to the contrary, the Trustee will deliver or pay to
the Company from time to time upon the request of the Company any money or non-callable Government
Securities held by it as provided in Section 8.04 hereof which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered under Section 8.04(1) hereof), are in
excess of the amount thereof that would then be required to be deposited to effect an equivalent
Legal Defeasance or Covenant Defeasance.


Section 8.06 Repayment to Company.




     Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of, premium, if any, or interest on, any Note and remaining
unclaimed for two years after such principal, premium, if any, or interest has become due and
payable shall be paid to the Company on its request or (if then held by the Company) will be
discharged from such trust; and the Holder of such Note will thereafter be permitted to look only
to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee thereof, will thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being required to make any
such repayment, may at the expense of the Company cause to be published once, in the New York Times
and The Wall Street Journal (national edition), notice that such money remains unclaimed and that,
after a date specified therein, which will not be less than 30 days from the date of such
notification or publication, any unclaimed balance of such money then remaining will be repaid to
the Company.


Section 8.07 Reinstatement.




     If the Trustee or Paying Agent is unable to apply any U.S. dollars or non-callable
Government Securities in accordance with Section 8.02 or 8.03 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 and the Guarantors’ obligations under this
Indenture and the Notes and the Note Guarantees will be revived and reinstated as though no deposit
had occurred pursuant to Section



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8.02 or 8.03 hereof until such time as the Trustee or Paying Agent
is permitted to apply all such money in accordance with Section 8.02 or 8.03 hereof, as the case
may be; provided, however, that, if the Company makes any payment of principal of, or 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 9

AMENDMENT, SUPPLEMENT AND WAIVER



Section 9.01 Without Consent of Holders of Notes.




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




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




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




     (3) to provide for the assumption of the Company’s or a Guarantor’s obligations to the
Holders of the Notes and Note Guarantees by a successor to the Company or such Guarantor
pursuant to Article 5 or Article 10 hereof;




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




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




     (6) to conform the text of this Indenture, the Note Guarantees, the Security Documents
or the Notes to any provision of the “Description of Indebtedness—Description of 2016 Notes”
section of the Company’s Confidential Memorandum, dated December 16, 2009, relating to the
exchange of the Notes for outstanding 2012 Notes, to the extent that such provision in that
“Description of Indebtedness—Description of 2016 Notes” was intended to be a verbatim
recitation of a provision of this Indenture, the Note Guarantees, the Security Documents or
the Notes;




     (7) to provide for the issuance of Additional Notes in accordance with the limitations
set forth in this Indenture as of the date hereof; or




     (8) to allow any Guarantor to execute a supplemental indenture and/or a Note Guarantee
with respect to the Notes, to add additional Guarantors or release Guarantors from Note
Guarantees, each in accordance with the terms of this Indenture; or




     (9) to make, complete or confirm any grant of Collateral permitted or required by this
Indenture or any of the Security Documents or any release of Collateral that becomes
effective as set forth in this Indenture or any of the Security Documents.



     Upon the request of the Company accompanied by a resolution of its Board of Directors
authorizing the execution of any such amended or supplemental indenture, and upon receipt by the
Trustee of the documents described in Section 7.02 hereof, the Trustee will join with the Company
and



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the Guarantors in the execution of any amended or supplemental indenture authorized or
permitted by the terms of this Indenture and to make any further appropriate agreements and
stipulations that may be therein contained, but the Trustee will not be obligated to enter into
such amended or supplemental indenture that affects its own rights, duties or immunities under this
Indenture or otherwise.



Section 9.02 With Consent of Holders of Notes.




     Except as provided below in this Section 9.02, the Company and the Trustee may amend or
supplement this Indenture (including, without limitation, Sections 3.09, 4.10 and 4.15 hereof) and
the Notes and the Note Guarantees with the consent of the Holders of at least a majority in
aggregate principal amount of the then outstanding Notes (including, without limitation, Additional
Notes, if any) 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 6.04 and 6.07 hereof, any existing Default or Event of Default (other than a Default or
Event of Default in the payment of the principal of, or premium, if any, or interest on, the Notes,
except a payment default resulting from an acceleration that has been rescinded) or compliance with
any provision of this Indenture or the Notes or the Note 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, Additional Notes, if any) 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).



     Upon the request of the Company accompanied by a resolution of its Board of Directors
authorizing the execution of any such amended or supplemental indenture, and upon the filing with
the Trustee of evidence satisfactory to the Trustee of the consent of the Holders of Notes as
aforesaid, and upon receipt by the Trustee of the documents described in Section 7.02 hereof, the
Trustee will join with the Company and the Guarantors in the execution of such amended or
supplemental indenture unless such amended or supplemental indenture directly affects the Trustee’s
own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may
in its discretion, but will not be obligated to, enter into such amended or supplemental Indenture.



     It is 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, supplement or waiver, but it is sufficient
if such consent approves the substance thereof.



     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. Subject to Sections 6.04 and 6.07 hereof, the Holders of a
majority in aggregate principal amount of the Notes then outstanding voting as a single class may
waive compliance in a particular instance by the Company with any provision of this Indenture or
the Notes or the Note Guarantees. However, without the consent of each Holder affected, an
amendment, supplement or waiver under this Section 9.02 may not (with respect to any Notes held by
a non-consenting Holder):




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




     (2) reduce the principal of or change the fixed maturity of any Note or reduce the
premium payable upon the redemption of any Note or change the time at which any Note may be
redeemed (except with respect to repurchases required by Sections 4.10 and 4.15 hereof);



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




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




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




     (6) make any change in the provisions of this Indenture relating to waivers of past
Defaults, Events of Default or the rights of Holders of Notes to receive payments of
principal of, or interest or premium, if any, on, the Notes;




     (7) waive a redemption payment payable with respect to any Note (other than a payment
required by Sections 4.10 or 4.15 hereof);




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




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



     In addition, any amendment to, or waiver of, the provisions of this Indenture or any Security
Document that has the effect of releasing all or substantially all of the Collateral from the Liens
securing the Notes will require the consent of the Holders of at least 66-2/3% in aggregate
principal amount of the Notes then outstanding.


Section 9.03 Compliance with Trust Indenture Act.




     Every amendment or supplement to this Indenture or the Notes will be set forth in an
amended or supplemental indenture that complies with the TIA as then in effect.


Section 9.04 Revocation and Effect of Consents.




     Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder
of a Note is a continuing consent by the Holder of a Note and every subsequent Holder of a Note or
portion of a Note that evidences the same debt as the consenting Holder’s Note, even if notation of
the consent is not made on any Note. However, any such Holder of a Note or subsequent Holder of a
Note may revoke the consent as to its Note if the Trustee receives written notice of revocation
before the date the amendment, supplement or waiver becomes effective. An amendment, supplement or
waiver becomes effective in accordance with its terms and thereafter binds every Holder.


Section 9.05 Notation on or Exchange of Notes.




     The Trustee may place an appropriate notation about an amendment, supplement or waiver on
any Note thereafter authenticated. The Company in exchange for all Notes may issue and the Trustee
shall, upon receipt of an Authentication Order, authenticate new Notes that reflect the amendment,
supplement or waiver.



     Failure to make the appropriate notation or issue a new Note will not affect the validity and
effect of such amendment, supplement or waiver.



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Section 9.06 Trustee to Sign Amendments, etc.




     The Trustee will sign any amended or supplemental indenture authorized pursuant to this
Article 9 if the amendment or supplement does not adversely affect the rights, duties, liabilities
or immunities of the Trustee. The Company may not sign an amended or supplemental indenture until
the Board of Directors of the Company approves it. In executing any amended or supplemental
indenture, the Trustee will be entitled to receive and (subject to Section 7.01 hereof) will be
fully protected in relying upon, in addition to the documents required by Section 13.04 hereof, an
Officers’ Certificate and an Opinion of Counsel stating that the execution of such amended or
supplemental indenture is authorized or permitted by this Indenture and that all conditions
precedent to the execution and delivery of such amendment or supplement have been met.



ARTICLE 10

COLLATERAL AND SECURITY



Section 10.01 Equal and Ratable Sharing of Collateral by Holders of Parity Lien Debt.




     Notwithstanding: (1) anything to the contrary contained in the Security Documents; (2)
the time of incurrence of any Series of Parity Lien Debt; (3) the order or method of attachment or
perfection of any Liens securing any Series of Parity Lien Debt; (4) the time or order of filing or
recording of financing statements, mortgages or other documents filed or recorded to perfect any
Lien upon any Collateral; (5) the time of taking possession or control over any Collateral; (6)
that any Parity Lien may not have been perfected or may be or have become subordinated, by
equitable subordination or otherwise, to any other Lien; or (7) the rules for determining priority
under any law governing relative priorities of Liens:



     (a) all Parity Liens granted at any time by the Company or any other Pledgor shall
secure, equally and ratably, all present and future Parity Lien Obligations; and



     (b) all proceeds of all Parity Liens granted at any time by the Company or any other
Pledgor shall be allocated and distributed equally and ratably on account of the Parity Lien Debt
and other Parity Lien Obligations.



     The foregoing provision is intended for the benefit of, and shall be enforceable as a third
party beneficiary by, each present and future holder of Parity Lien Obligations, each present and
future Parity Lien Representative and the Collateral Trustee as holder of Parity Liens. The Parity
Lien Representative of each future Series of Parity Lien Debt shall be required to deliver a Lien
Sharing and Priority Confirmation to the Collateral Trustee and the Trustee at the time of
incurrence of such Series of Parity Lien Debt.


Section 10.02 Ranking of Parity Liens.




     Notwithstanding: (1) anything to the contrary contained in the Security Documents; (2)
the time of incurrence of any Series of Secured Debt; (3) the order or method of attachment or
perfection of any
Liens securing any Series of Secured Debt; (4) the time or order of filing or recording of
financing statements, mortgages or other documents filed or recorded to perfect any Lien upon any
Collateral; (5) the time of taking possession or control over any Collateral; (6) that any Priority
Lien may not have been perfected or may be or have become subordinated, by equitable subordination
or otherwise, to any other Lien; or (7) the rules for determining priority under any law governing
relative priorities of Liens, all Parity Liens at any time granted by the Company or any other
Pledgor shall be subject and subordinate to all Priority Liens securing (i) Priority Lien Debt up
to the Priority Lien Cap and (ii) all other Obligations in respect of Priority Lien Debt.



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     The foregoing provision is intended for the benefit of, and shall be enforceable as a third
party beneficiary by, each present and future holder of Priority Lien Obligations, each present and
future Priority Lien Representative and the Collateral Trustee as holder of the Priority Liens. No
other Person shall be entitled to rely on, have the benefit of or enforce those provisions. The
Parity Lien Representative of each future Series of Parity Lien Debt shall be required to deliver a
Lien Sharing and Priority Confirmation to the Collateral Trustee and each Priority Lien
Representative at the time of incurrence of such Series of Parity Lien Debt.



     In addition, the foregoing provision is intended solely to set forth the relative ranking, as
Liens, of the Liens securing Parity Lien Debt as against the Priority Liens. Neither the Notes, nor
any other Parity Lien Obligations nor the exercise or enforcement of any right or remedy for the
payment or collection thereof are intended to be, or shall ever be by reason of the foregoing
provision, in any respect subordinated, deferred, postponed, restricted or prejudiced.


Section 10.03 Relative Rights.




     Nothing in the Note Documents shall:



     (a) impair, as between the Company and the Holders of the Notes, the obligation of
the Company to pay principal of, and premium, if any, and interest on the Notes in accordance with
their terms or any other obligation of the Company or any other Pledgor;



     (b) affect the relative rights of Holders of Notes as against any other creditors
of the Company or any other Pledgor (other than holders of Priority Liens, Permitted Prior Liens or
other Parity Liens);



     (c) restrict the right of any Holder of Notes to sue for payments that are then due
and owing (but not enforce any judgment in respect thereof against any Collateral to the extent
specifically prohibited under the Collateral Trust Agreement);



     (d) restrict or prevent any Holder of Notes, or any other Parity Lien Obligations,
the Collateral Trustee or any Parity Lien Representative from exercising any of its rights or
remedies upon a Default or Event of Default not specifically restricted or prohibited by the
Collateral Trust Agreement; or



     (e) restrict or prevent any Holder of Notes, or any other Parity Lien Obligations,
the Collateral Trustee or any Parity Lien Representative from taking any lawful action in an
insolvency or liquidation proceeding not specifically restricted or prohibited by the Collateral
Trust Agreement.


Section 10.04 Compliance with Trust Indenture Act.




     To the extent applicable, the Company shall comply with the provisions of TIA §314.



     To the extent applicable, the Company shall cause TIA §313(b), relating to reports, and TIA
§314(d), relating to the release of property or securities subject to the Lien of the Security
Documents, to be complied with. Any certificate or opinion required by TIA §314(d) may be made by
an Officer of the Company except in cases where TIA §314(d) requires that such certificate or
opinion be made by an independent Person, which Person shall be an independent engineer, appraiser
or other expert selected by or reasonably satisfactory to the Trustee. Notwithstanding anything to
the contrary in this paragraph, the Company shall not be required to comply with all or any portion
of TIA §314(d) if it determines, in good faith based on advice of counsel, that under the terms of
TIA §314(d) and/or any interpretation or guidance as to the meaning thereof of the SEC and its
staff, including “no action” letters or exemptive orders, all or any portion of TIA §314(d) is
inapplicable to one or a series of released Collateral.



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Section 10.05 Further Assurances; Insurance.




     (a) The Company and each of the other Pledgors shall do or cause to be done all acts and
things that may be required, or that the Collateral Trustee from time to time may reasonably
request, to assure and confirm that the Collateral Trustee holds, for the benefit of the holders of
Secured Obligations, duly created and enforceable and perfected Liens upon the Collateral
(including any property or assets that are acquired or otherwise become Collateral after the Notes
are issued), in each case, as contemplated by, and with the Lien priority required under, the
Secured Debt Documents.



     Upon the reasonable request of the Collateral Trustee or any Secured Debt Representative at
any time and from time to time, the Company and each of the other Pledgors shall promptly execute,
acknowledge and deliver such Security Documents, instruments, certificates, notices and other
documents, and take such other actions as shall be reasonably required, or that the Collateral
Trustee may reasonably request, to create, perfect, protect, assure or enforce the Liens and
benefits intended to be conferred, in each case as contemplated by the Secured Debt Documents for
the benefit of the holders of Secured Obligations.



     (b) At any time when no Priority Lien Documents are in effect, the Company and the
other Pledgors shall:




     (1) keep their properties adequately insured at all times by financially sound and
reputable insurers;




     (2) maintain such other insurance, to such extent and against such risks (and with such
deductibles, retentions and exclusions), including fire and other risks insured against by
extended coverage and coverage for acts of terrorism, as is customary with companies in the
same or similar businesses operating in the same or similar locations, including public
liability insurance against claims for personal injury or death or property damage occurring
upon, in, about or in connection with the use of any properties owned, occupied or
controlled by them;




     (3) maintain such other insurance as may be required by law;




     (4) maintain title insurance on all real property Collateral insuring the Collateral
Trustee’s Lien on that property, subject only to Permitted Prior Liens and other exceptions
to title reasonably approved by the Collateral Trustee; provided that title insurance need
only be maintained on any particular parcel of real property if and to the extent title
insurance is maintained in respect of Priority Liens on that property; and




     (5) maintain such other insurance as may be required by the Security Documents.



     (c) Upon the request of the Collateral Trustee, the Company and the other Pledgors
shall furnish to the Collateral Trustee full information as to their property and liability
insurance carriers. The Collateral Trustee, as agent for the holders of Secured Obligations, as a
class, shall be named as additional insured on all insurance policies of the Company and the other
Pledgors and the Collateral Trustee shall be named as loss payee, with 30 days’ notice of
cancellation or, if provided to the Company, notice of material change, on all property and
casualty insurance policies of the Company and the other Pledgors.


Section 10.06 Release of Liens in Respect of Notes.




     The Collateral Trustee’s Parity Liens upon the Collateral shall no longer secure the
Notes outstanding under this Indenture or any other Obligations under this Indenture, and the right
of the



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Holders of the Notes and such Obligations to the benefits and proceeds of the Collateral
Trustee’s Parity Liens on the Collateral shall terminate and be discharged:




     (a) upon satisfaction and discharge of this Indenture as set forth under Article 12
hereof;



     (b) upon a Legal Defeasance or Covenant Defeasance of the Notes as set forth under
Article 8 hereof;



     (c) upon payment in full and discharge of all Notes outstanding under this
Indenture and all Obligations that are outstanding, due and payable under this Indenture at the
time the Notes are paid in full and discharged; or



     (d) in whole or in part, with the consent of the Holders of the requisite percentage
of Notes in accordance with Article 9 hereof.



ARTICLE 11

NOTE GUARANTEES



Section 11.01 Guarantee.




     (a) Subject to this Article 11, each of the Guarantors hereby, jointly and severally,
unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and
to the Trustee and its successors and assigns, irrespective of the validity and enforceability of
this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that:




     (1) the principal of, premium, if any, and interest on, the Notes will be promptly
paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and
interest on the overdue principal of and interest on the Notes, if any, if lawful, and all
other obligations of the Company to the Holders or the Trustee hereunder or thereunder will
be promptly paid in full or performed, all in accordance with the terms hereof and thereof;
and




     (2) in case of any extension of time of payment or renewal of any Notes or any of such
other obligations, that same will be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at stated maturity, by
acceleration or otherwise.



     Failing payment when due of any amount so guaranteed or any performance so guaranteed for
whatever reason, the Guarantors will be jointly and severally obligated to pay the same
immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of
collection.



     (b) The Guarantors hereby agree that their obligations hereunder are unconditional,
irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the
absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with
respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any
action to enforce the same or any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against the Company, protest,
notice and all demands whatsoever and covenant that this Note Guarantee will not be discharged
except by complete performance of the obligations contained in the Notes and this Indenture.



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     (c) If any Holder or the Trustee is required by any court or otherwise to return to
the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting
in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or
such Holder, this Note Guarantee, to the extent theretofore discharged, will be reinstated in full
force and effect.



     (d) Each Guarantor agrees that it will not be entitled to any right of subrogation
in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of
all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors,
on the one hand, and the Holders and the Trustee, on the other hand, (1) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes
of this Note Guarantee, notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (2) in the event of any
declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations
(whether or not due and payable) will forthwith become due and payable by the Guarantors for the
purpose of this Note Guarantee. The Guarantors will have the right to seek contribution from any
non-paying Guarantor so long as the exercise of such right does not impair the rights of the
Holders under the Note Guarantee.


Section 11.02 Limitation on Guarantor Liability.




     Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is
the intention of all such parties that the Note Guarantee of such Guarantor not constitute a
fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance
Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent
applicable to any Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders
and the Guarantors hereby irrevocably agree that the obligations of such Guarantor will be limited
to the maximum amount that will, after giving effect to such maximum amount and all other
contingent and fixed liabilities of such Guarantor that are relevant under such laws, and after
giving effect to any collections from, rights to receive contribution from or payments made by or
on behalf of any other Guarantor in respect of the obligations of such other Guarantor under this
Article 11, result in the obligations of such Guarantor under its Note Guarantee not constituting a
fraudulent transfer or conveyance.


Section 11.03 Execution and Delivery of Note Guarantee.




     To evidence its Note Guarantee set forth in Section 11.01 hereof, each Guarantor hereby
agrees that a notation of such Note Guarantee substantially in the form attached as Exhibit E
hereto will be endorsed by an Officer of such Guarantor on each Note authenticated and delivered by
the Trustee and that this Indenture will be executed on behalf of such Guarantor by one of its
Officers.



     Each Guarantor hereby agrees that its Note Guarantee set forth in Section 11.01 hereof will
remain in full force and effect notwithstanding any failure to endorse on each Note a notation of
such Note Guarantee.



     If an Officer whose signature is on this Indenture or on the Note Guarantee no longer holds
that office at the time the Trustee authenticates the Note on which a Note Guarantee is endorsed,
the Note Guarantee will be valid nevertheless.



     The delivery of any Note by the Trustee, after the authentication thereof hereunder, will
constitute due delivery of the Note Guarantee set forth in this Indenture on behalf of the
Guarantors.


Section 11.04 Guarantors May Consolidate, etc., on Certain Terms.




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     Except as otherwise provided in Section 11.05 hereof, no Guarantor may sell or otherwise
dispose of all or substantially all of its assets to, or consolidate with or merge with or into
(whether or not such Guarantor is the surviving Person) another Person, other than the Company or
another Guarantor, unless:




     (1) immediately after giving effect to such transaction, no Default or Event of Default
exists; and




     (2) either:




     (A) subject to Section 11.05 hereof, the Person acquiring the property in any
such sale or disposition or the Person formed by or surviving any such consolidation
or merger unconditionally assumes all the obligations of that Guarantor under this
Indenture, its Note Guarantee on the terms set forth herein or therein, pursuant to
a supplemental indenture in form and substance reasonably satisfactory to the
Trustee; or




     (B) the Net Proceeds of such sale or other disposition are applied in
accordance with the applicable provisions of this Indenture, including without
limitation, Section 4.10 hereof.



     In case of any such consolidation, merger, sale or conveyance and upon the assumption by the
successor Person, by supplemental indenture, executed and delivered to the Trustee and satisfactory
in form to the Trustee, of the Note Guarantee endorsed upon the Notes and the due and punctual
performance of all of the covenants and conditions of this Indenture to be performed by the
Guarantor, such successor Person will succeed to and be substituted for the Guarantor with the same
effect as if it had been named herein as a Guarantor. Such successor Person thereupon may cause to
be signed any or all of the Note Guarantees to be endorsed upon all of the Notes issuable hereunder
which theretofore shall not have been signed by the Company and delivered to the Trustee. All the
Note Guarantees so issued will in all respects have the same legal rank and benefit under this
Indenture as the Note Guarantees theretofore and thereafter issued in accordance with the terms of
this Indenture as though all of such Note Guarantees had been issued at the date of the execution
hereof.



     Except as set forth in Articles 4 and 5 hereof, and notwithstanding clauses 2(a) and (b)
above, nothing contained in this Indenture or in any of the Notes will prevent any consolidation or
merger of a Guarantor with or into the Company or another Guarantor, or will prevent any sale or
conveyance of the property of a Guarantor as an entirety or substantially as an entirety to the
Company or another Guarantor.


Section 11.05 Releases.




     (a) In the event of any sale or other disposition of all or substantially all of the
assets of any Guarantor, by way of merger, consolidation or otherwise, or a sale or other
disposition of all of the Capital Stock of any Guarantor, in each case to a Person that is not
(either before or after giving effect to such transactions) the Company or a Restricted Subsidiary
of the Company, then such Guarantor (in the event of a sale or other disposition, by way of merger,
consolidation or otherwise, of all of the Capital Stock of such Guarantor) or the corporation
acquiring the property (in the event of a sale or other disposition of all or substantially all of
the assets of such Guarantor) will be released and relieved of any obligations under its Note
Guarantee; provided that the Net Proceeds of such sale or other disposition are applied in
accordance with the applicable provisions of this Indenture, including without limitation Section
4.10 hereof. Upon delivery by the Company to the Trustee of an Officers’ Certificate and an
Opinion of Counsel to the effect that such sale or other disposition was made by the Company in
accordance with the provisions of this Indenture, including without limitation Section 4.10 hereof,
the



86









 




Trustee will execute any documents reasonably required in order to evidence the release of any
Guarantor from its obligations under its Note Guarantee.




     (b) Upon designation of any Guarantor as an Unrestricted Subsidiary in accordance with the
terms of this Indenture, such Guarantor will be released and relieved of any obligations under its
Note Guarantee. The Trustee will execute any documents reasonably required in order to evidence
the release of any Guarantor from its obligations under its Note Guarantee.



     (c) Upon Legal Defeasance in accordance with Article 8 hereof or satisfaction and discharge of
this Indenture in accordance with Article 12 hereof, each Guarantor will be released and relieved
of any obligations under its Note Guarantee. The Trustee will execute any documents reasonably
required in order to evidence the release of any Guarantor from its obligations under its Note
Guarantee.



     Any Guarantor not released from its obligations under its Note Guarantee as provided in this
Section 11.05 will remain liable for the full amount of principal of and interest and premium, if
any, on the Notes and for the other obligations of any Guarantor under this Indenture as provided
in this Article 11.



ARTICLE 12

SATISFACTION AND DISCHARGE



Section 12.01 Satisfaction and Discharge.




     This Indenture will be discharged and will cease to be of further effect as to all Notes
issued hereunder, when:




     (1) either:




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




     (B) all 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 within 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 Government Securities, or a combination thereof, in such amounts as
will be sufficient, without
consideration of any reinvestment of interest, to pay and discharge the entire
Indebtedness on the Notes not delivered to the Trustee for cancellation for
principal, premium, if any, and accrued interest to the date of maturity or
redemption;




     (2) no Default or Event of Default has occurred and is continuing on the date of such
deposit as a result of the Company’s failure to comply with Section 4.15 hereof and the
deposit will not result in a breach or violation of, or constitute a 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 sums payable by it
under this Indenture; and



87









 






     (4) the Company has delivered irrevocable instructions to the Trustee under this
Indenture to apply the deposited money toward the payment of the Notes at maturity or on the
redemption date, as the case may be.


In addition, the Company must deliver an Officers’ Certificate and an Opinion of Counsel to the
Trustee stating that all conditions precedent to satisfaction and discharge have been satisfied.




     Notwithstanding the satisfaction and discharge of this Indenture, if money has been deposited
with the Trustee pursuant to subclause (B) of clause (1) of this Section 12.01, the provisions of
Sections 12.02 and 8.06 hereof will survive. In addition, nothing in this Section 12.01 will be
deemed to discharge those provisions of Section 7.07 hereof, that, by their terms, survive the
satisfaction and discharge of this Indenture.


Section 12.02 Application of Trust Money.




     Subject to the provisions of Section 8.06 hereof, all money deposited with the Trustee
pursuant to Section 12.01 hereof shall be held in trust and applied by it, in accordance with the
provisions of the Notes and this Indenture, to the payment, either directly or through any Paying
Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the
Persons entitled thereto, of the principal (and premium, if any) and interest for whose payment
such money has been deposited with the Trustee; but such money need not be segregated from other
funds except to the extent required by law.



     If the Trustee or Paying Agent is unable to apply any money or Government Securities in
accordance with Section 12.01 hereof by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Company’s and any Guarantor’s obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to Section 12.01 hereof;
provided that if the Company has made any payment of principal of, premium, if any, or interest on,
any Notes because of the reinstatement of its obligations, the Company shall be subrogated to the
rights of the Holders of such Notes to receive such payment from the money or Government Securities
held by the Trustee or Paying Agent.



ARTICLE 13

MISCELLANEOUS



Section 13.01 Trust Indenture Act Controls.




     If any provision of this Indenture limits, qualifies or conflicts with the duties imposed
by TIA §318(c), the imposed duties will control.


Section 13.02 Notices.




     Any notice or communication by the Company, any Guarantor or the Trustee to the others is
duly given if in writing and delivered in Person or by first class mail (registered or certified,
return receipt requested), facsimile transmission or overnight air courier guaranteeing next day
delivery, to the others’ address:




88












 




If to the Company and/or any Guarantor:



Builders FirstSource Inc.

2001 Bryan Street, Suite 1600

Dallas, Texas 75201

Facsimile No.: (214) 880-3599

Attention: General Counsel



With a copy to:



Skadden, Arps, Slate, Meagher & Flom LLP

One Rodney Square, P.O. Box 636

Wilmington, Delaware 19899-0636

Facsimile No.: (302) 651-3001

Attention: Allison L. Land, Esq.



If to the Trustee:



Wilmington Trust Company

Rodney Square North

1100 North Market Street

Wilmington, Delaware 19890-1600

Facsimile No.: (302) 636-4140

Attention: Corporate Trust Administration




     The Company, any Guarantor or the Trustee, by notice to the others, may designate additional
or different addresses for subsequent notices or communications.



     All notices and communications (other than those sent to Holders) will 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 transmitted by
facsimile; and the next Business Day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next day delivery.



     Any notice or communication to a Holder will 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 register kept by the Registrar. Any notice or communication will also be
so mailed to any Person described in TIA § 313(c), to the extent required by the TIA. Failure to
mail a notice or communication to a Holder or any defect in it will 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 will mail a copy to the Trustee
and each Agent at the same time.


Section 13.03 Communication by Holders of Notes with Other Holders of Notes.







89









 








     Holders may communicate pursuant to TIA § 312(b) with other Holders with respect to their
rights under this Indenture or the Notes. The Company, the Trustee, the Registrar and anyone else
shall have the protection of TIA § 312(c).



Section 13.04 Certificate and Opinion as to Conditions Precedent.




     Upon any request or application by the Company to the Trustee to take any action under
this Indenture, the Company shall furnish to the Trustee:




     (1) an Officers’ Certificate in form and substance reasonably satisfactory to the
Trustee (which must include the statements set forth in Section 13.05 hereof) stating that,
in the opinion of the signers, all conditions precedent and covenants, if any, provided for
in this Indenture relating to the proposed action have been satisfied; and




     (2) an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee
(which must include the statements set forth in Section 13.05 hereof) stating that, in the
opinion of such counsel, all such conditions precedent and covenants have been satisfied.



Section 13.05 Statements Required in Certificate or Opinion.




     Each certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture (other than a certificate provided pursuant to TIA § 314(a)(4)) must
comply with the provisions of TIA § 314(e) and must include:




     (1) a statement that the Person making such certificate or opinion has read such
covenant or condition;




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




     (3) a statement that, in the opinion of such Person, he or she has made such
examination or investigation as is necessary to enable him or her to express an informed
opinion as to whether or not such covenant or condition has been satisfied; and




     (4) a statement as to whether or not, in the opinion of such Person, such condition or
covenant has been satisfied.



Section 13.06 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 13.07 No Personal Liability of Directors, Officers, Employees and Stockholders.




     No past, present or future director, officer, employee, incorporator or stockholder of
the Company or any Guarantor, as such, will have any liability for any obligations of the Company
or the Guarantors under the Notes, this Indenture, the Note Guarantees, the Note Documents or for
any claim based on, in respect of, or by reason of, such obligations or their creation. Each
Holder of Notes by accepting a Note waives and releases all such liability. The waiver and release
are part of the consideration for issuance of the Notes. The waiver may not be effective to waive
liabilities under the federal securities laws.



90









 





Section 13.08 Governing Law.




     THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THIS
INDENTURE, THE NOTES AND THE NOTE GUARANTEES 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 13.09 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 13.10 Successors.




     All agreements of the Company in this Indenture and the Notes will bind its successors.
All agreements of the Trustee in this Indenture will bind its successors. All agreements of each
Guarantor in this Indenture will bind its successors, except as otherwise provided in Section 11.05
hereof.



Section 13.11 Severability.




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



Section 13.12 Counterpart Originals.




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



Section 13.13 Table of Contents, Headings, etc.




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



[Signatures on following page]









91









 









     SIGNATURES




	 	 	 	 	 	 	 
	 	 	BUILDERS FIRSTSOURCE, INC.  
	 	 	a Delaware Corporation
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	BUILDERS FIRSTSOURCE – NORTHEAST GROUP, LLC, a Delaware limited
liability company, as Guarantor
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	BUILDERS FIRSTSOURCE – TEXAS GENPAR, LLC, a Delaware limited
liability company, as Guarantor
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	BUILDERS FIRSTSOURCE – MBS, LLC, a Delaware limited liability
company, as Guarantor
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 




(Signature page to Indenture)





 









 






	 	 	 	 	 	 	 
	 	 	BUILDERS FIRSTSOURCE – TEXAS GROUP, L.P., a Texas limited
partnership, as Guarantor
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	BFS TEXAS, LLC, a Delaware limited liability company, as
Guarantor
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	BUILDERS FIRSTSOURCE – SOUTH TEXAS, L.P., a Texas limited
partnership, as Guarantor
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	BUILDERS FIRSTSOURCE – TEXAS INSTALLED SALES, L.P., a Texas
limited partnership, as Guarantor
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	BFS IP, LLC, a Delaware limited liability company, as Guarantor
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 





(Signature page to Indenture)





 









 






	 	 	 	 	 	 	 
	 	 	BUILDERS FIRSTSOURCE – INTELLECTUAL PROPERTY, L.P., a Texas
limited partnership, as Guarantor
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	BUILDERS FIRSTSOURCE HOLDINGS, INC., a Delaware corporation, as
Guarantor
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	BUILDERS FIRSTSOURCE – DALLAS, LLC, a Delaware limited
liability company, as Guarantor
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	BUILDERS FIRSTSOURCE – FLORIDA, LLC, a Delaware limited
liability company, as Guarantor
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	BUILDERS FIRSTSOURCE – FLORIDA DESIGN CENTER, LLC, a Delaware
limited liability company, as Guarantor
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 





(Signature page to Indenture)





 









 






	 	 	 	 	 	 	 
	 	 	BUILDERS FIRSTSOURCE – OHIO VALLEY, LLC, a Delaware limited
liability company, as Guarantor
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	BFS, LLC, a Delaware limited liability company, as Guarantor
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	BUILDERS FIRSTSOURCE – ATLANTIC GROUP, LLC, a Delaware limited
liability company, as Guarantor
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	BUILDERS FIRSTSOURCE – SOUTHEAST GROUP, LLC, a Delaware limited
liability company, as Guarantor
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	CCWP, INC, a South Carolina close corporation, as Guarantor
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 





(Signature page to Indenture)





 









 






	 	 	 	 	 	 	 
	 	 	BUILDERS FIRSTSOURCE – RALEIGH, LLC, a Delaware limited
liability company, as Guarantor
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	BUILDERS FIRSTSOURCE – COLORADO GROUP, LLC, a Delaware limited
liability company, as Guarantor
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	BUILDERS FIRSTSOURCE – COLORADO, LLC, a Delaware limited
liability company, as Guarantor
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 





(Signature page to Indenture)





 









 






	 	 	 	 	 
	 	WILMINGTON TRUST COMPANY
 	 

	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




(Signature page to Indenture)








 









 








[Face of Note]




CUSIP/CINS                     




Second Priority Senior Secured Floating Rate Notes due 2016




			
	 	 	 
	No. ___
	 	$                    






BUILDERS FIRSTSOURCE, INC.




promises to pay to [                    ] or registered assigns,




	 	 	 	 	 
	the principal sum of

	 	 	 	DOLLARS
	 

	 	 	 	 
	on February 15, 2016.	 	 






Interest Payment Dates: February 15, May 15, August 15 and November 15




Record Dates: February 1, May 1, August 1 and November 1




Dated:                     




	 	 	 	 	 
	 	BUILDERS FIRSTSOURCE, INC.
 	 

	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



This is one of the Notes referred to
in the within-mentioned Indenture:




	 	 	 	 	 
	WILMINGTON TRUST COMPANY,	 	 
	  as Trustee	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 	 	 
	 

	 	Authorized Signatory	 	 







A-1













 





[Back of Note]

Second Priority Senior Secured Floating Rate Notes due 2016



THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS
NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY
PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE
REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE
BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED
TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (4) THIS GLOBAL NOTE
MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.



UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY
NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.



THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), OR ANY OTHER SECURITIES LAWS. THIS SECURITY MAY NOT BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.



THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES TO OFFER, SELL OR OTHERWISE TRANSFER
SUCH SECURITY, PRIOR TO THE DATE THAT IS SIX MONTHS AFTER THE ORIGINAL ISSUE DATE HEREOF OR SUCH
OTHER PERIOD AS PROMULGATED BY THE SECURITIES AND EXCHANGE COMMISSION ONLY (A) TO THE COMPANY OR
ANY SUBSIDIARY THEREOF, (B) TO A “QUALIFIED INSTITUTIONAL BUYER” WITHIN THE MEANING OF RULE 144A OF
THE SECURITIES ACT, (C) TO AN “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(A) OF THE
SECURITIES ACT SUBJECT TO THE RIGHT OF THE COMPANY PRIOR TO ANY OFFER, SALE OR TRANSFER ,TO REQUIRE
THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO IT,
(D) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT,
(E) OUTSIDE THE UNITED STATES PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS IN AN OFFSHORE
TRANSACTION PURSUANT TO REGULATION S UNDER THE SECURITIES ACT IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT






A-2









 







OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT.




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





               (1) Interest. Builders FirstSource, Inc., a Delaware corporation (the
“Company”), promises to pay interest on the principal amount of this Note at a rate equal to
the greater of (i) the LIBOR Rate or (ii) 3.0%, plus, in each case, 10.0%, from [___],
2010, until maturity. The LIBOR Rate will be reset quarterly. The LIBOR Rate for the first
quarterly period ending on February 15, 2010, will be .2725%, and the applicable interest rate
for the first quarterly period ending on February 15, 2010, will be [___]% per annum. The
Company will pay interest quarterly in arrears on February 15, May 15, August 15 and November
15 of each year, or if any such day is not a Business Day, on the next succeeding Business Day
(each, an “Interest Payment Date”). Interest on the Notes will accrue from the most recent
date to which interest has been paid or, if no interest has been paid, from the date of
issuance; provided that if there is no existing Default in the payment of interest, and if
this Note is authenticated between a record date referred to on the face hereof and the next
succeeding Interest Payment Date, interest shall accrue from such next succeeding Interest
Payment Date; provided further that the first Interest Payment Date shall be February 15,
2010. The Company will pay interest (including post-petition interest in any proceeding under
any Bankruptcy Law) on overdue principal and premium, if any, from time to time on demand at a
rate that is 2.0% per annum in excess of the rate then in effect to the extent lawful; it will
pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on
overdue installments of interest (without regard to any applicable grace periods) from time to
time on demand at the same rate to the extent lawful. Interest 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
(except defaulted interest) to the Persons who are registered Holders of Notes at the close of
business on the February 1, May 1, August 1 or November 1 next preceding the Interest Payment
Date, even if such Notes are canceled after such record date and on or before such Interest
Payment Date, except as provided in Section 2.12 of the Indenture with respect to defaulted
interest. The Notes will be payable as to principal, premium, if any, and interest at the
office or agency of the Company maintained for such purpose, or, at the option of the Company,
payment of interest may be made by check mailed to the Holders at their addresses set forth in
the register of Holders; provided that payment by wire transfer of immediately available funds
will be required with respect to principal of and interest, premium, if any, on all Global
Notes and all other Notes the Holders of which will have provided wire transfer instructions
to the Company or the Paying Agent. Such payment will be in such coin or currency of the
United States of America as at the time of payment is legal tender for payment of public and
private debts.




               (3) Paying Agent and Registrar. Initially, Wilmington Trust Company,
the Trustee under the Indenture, will act as Paying Agent and Registrar. The Company may
change any Paying Agent or Registrar without notice to any Holder. The Company or any of its
Subsidiaries may act in any such capacity.




               (4) Indenture and Security Documents. The Company issued the Notes
under an Indenture dated as of [                    ], 2010 (the “Indenture”) 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 TIA. THE NOTES ARE SUBJECT TO ALL SUCH
TERMS, AND HOLDERS ARE REFERRED TO THE INDENTURE AND SUCH ACT FOR A



A-3









 







STATEMENT OF SUCH TERMS. TO THE EXTENT ANY PROVISION OF THIS NOTE CONFLICTS WITH THE
EXPRESS PROVISIONS OF THE INDENTURE, THE PROVISIONS OF THE INDENTURE SHALL GOVERN AND BE
CONTROLLING. The Notes are secured obligations of the Company. The Notes are secured by a
second priority lien on substantially all of the Company’s assets pursuant to the Security
Documents referred to in the Indenture. The Indenture does not limit the aggregate principal
amount of Notes that may be issued thereunder.




               (5) Optional Redemption.




                    (a) On or after February 15, 2011, 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 on the Notes
redeemed, to the applicable redemption date, if redeemed during the twelve-month period
beginning on February 15 of the years indicated below, subject to the rights of Holders on the
relevant record date to receive interest on the relevant interest payment date:



	 	 	 	 	 
	Year	 	Percentage
	2011
	 	 	102.500	%
	2012
	 	 	101.000	%
	2013 and thereafter
	 	 	100.000	%







               Unless the Company defaults in the payment of the redemption price, interest will cease
to accrue on the Notes or portions thereof called for redemption on the applicable redemption
date.




                    (b) At any time prior to February 15, 2011, the Company may on any one or more occasions
redeem all or a part of the Notes, upon not less than 30 nor more than 60 days’ prior notice
mailed by first-class mail to each Holder’s registered address, at a redemption price equal to
105% of the principal amount of Notes redeemed plus accrued and unpaid interest to the date of
redemption (the “Redemption Date”), subject to the rights of Holders on the relevant record
date to receive interest due on the relevant interest payment date.




               (6) Mandatory Redemption.




               The Company is not be required to make mandatory redemption or sinking fund payments with
respect to the Notes.




               (7) Repurchase at the Option of Holder.




                    (a) If there is a Change of Control, the Company will be required to make an offer (a
“Change of Control Offer”) to each Holder to repurchase all or any part (equal to $1,000 or an
integral multiple thereof) of each Holder’s Notes at a purchase price in cash equal to 101% of
the aggregate principal amount thereof plus accrued and unpaid interest thereon to the date of
purchase, subject to the rights of Holders on the relevant record date to receive interest due
on the relevant interest payment date (the “Change of Control Payment”). Within 10 days
following any Change of Control, the Company will mail a notice to each Holder setting forth
the procedures governing the Change of Control Offer as required by the Indenture.




                    (b) If the Company or a Restricted Subsidiary of the Company consummates any Asset Sales,
within five days of each date on which the aggregate amount of Excess Proceeds exceeds $15.0
million, the Company will commence an offer to all Holders of Notes and all holders



A-4









 







of Parity Lien Debt containing provisions similar to those set forth in the Indenture with
respect to offers to purchase or redeem with the proceeds of sales of assets (an “Asset Sale
Offer”) pursuant to Section 3.09 of the Indenture to purchase the maximum principal amount of
Notes and such other Parity Lien Debt that may be purchased out of the Excess Proceeds at an
offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued
and unpaid interest thereon to the date of purchase, in accordance with the procedures set
forth in the Indenture. To the extent that the aggregate amount of Notes and Parity Lien Debt
tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use
such deficiency for any purpose not otherwise prohibited by the Indenture. If the aggregate
principal amount of Notes and Parity Lien Debt tendered into such Asset Sale Offer exceeds the
amount of Excess Proceeds, the Trustee shall select the Notes and such other Parity Lien Debt
to be purchased on a pro rata basis. Holders of Notes that are the subject of an offer to
purchase will receive an Asset Sale Offer from the Company prior to any related purchase date
and may elect to have such Notes purchased by completing the form entitled “Option of Holder
to Elect Purchase” attached to the Notes.




               (8) 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 whose Notes are to
be redeemed at its registered address, except that redemption notices may be mailed more than
60 days prior to a redemption date if the notice is issued in connection with a defeasance of
the Notes or a satisfaction or discharge of the Indenture. Notes in denominations larger than
$1,000 may be redeemed in part but only in whole multiples of $1,000, unless all of the Notes
held by a Holder are to be redeemed.




               (9) Denominations, Transfer, Exchange. The Notes are in registered
form without coupons in denominations of $1,000 and integral multiples of $1,000. The
transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture.
The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and the Company may require a Holder to pay any taxes and
fees required by law or permitted by the Indenture. The Company need not exchange or register
the transfer of any Note or portion of a Note selected for redemption, except for the
unredeemed portion of any Note being redeemed in part. Also, the Company need not exchange or
register the transfer of any Notes for a period of 15 days before a selection of Notes to be
redeemed or during the period between a record date and the corresponding Interest Payment
Date.




               (10) Persons Deemed Owners. The registered Holder of a Note may be
treated as its owner for all purposes.




               (11) Amendment, Supplement and Waiver. Subject to certain exceptions,
the Indenture or the Notes or the Note Guarantees may be amended or supplemented with the
consent of the Holders of at least a majority in aggregate principal amount of the then
outstanding Notes including Additional Notes, if any, voting as a single class, and any
existing Default or Event or Default or compliance with any provision of the Indenture or the
Notes or the Note Guarantees may be waived with the consent of the Holders of a majority in
aggregate principal amount of the then outstanding Notes including Additional Notes, if any,
voting as a single class. Without the consent of any Holder of a Note, the Indenture or the
Notes or the Note Guarantees may be amended or supplemented to 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 a Guarantor’s obligations to Holders
of the Notes and Note Guarantees in case of a merger or consolidation or sale of substantially
all of the Company’s or such Guarantor’s assets, to make any change that would provide any
additional rights or benefits to the Holders of the Notes or that does not adversely affect
the legal rights under the Indenture of any such Holder, to comply with the requirements of
the SEC in order to effect or maintain the qualification of the Indenture under the



A-5









 







TIA, to conform the text of the Indenture, Security Documents or the Notes to any
provision of the “Description of Indebtedness—Description of 2016 Notes” section of the
Company’s Confidential Memorandum, dated December 16, 2009, relating to the exchange of the
Notes for outstanding 2012 Notes, to the extent that such provision in that “Description of
Indebtedness—Description of 2016 Notes” was intended to be a verbatim recitation of a
provision of the Indenture, the Note Guarantees, the Security Documents or the Notes; to
provide for the issuance of Additional Notes in accordance with the limitations set forth in
this Indenture, or to allow any Guarantor to execute a supplemental indenture to the Indenture
and/or a Note Guarantee with respect to the Notes, to add additional Guarantors or release
Guarantors from Note Guarantees, each in accordance with the terms of the Indenture, or to
make, complete or confirm any grant of Collateral permitted or required by the Indenture or
any of the Security Documents or any release of Collateral that becomes effective as set forth
in the Indenture or any of the Security Documents.




               (12) Defaults and Remedies. Events of Default include: (i) default
for 30 days in the payment when due of interest on the Notes; (ii) default in the payment when
due (at maturity, upon redemption or otherwise) of the principal of, or premium, if any, on,
the Notes; (iii) failure by the Company or any of its Restricted Subsidiaries to comply with
the provisions of Sections 4.15 or 5.01 of the Indenture; (iv) failure by the Company or any
of its Restricted Subsidiaries for 60 days after notice to the Company by the Trustee or the
Holders of at least 25% in aggregate principal amount of the Notes then outstanding voting as
a single class to comply with any of the other agreements in this Indenture or any of the
Security Documents; (v) default under one or more instruments evidencing or securing
Indebtedness of the Company or any of its Restricted Subsidiaries (or the payment of
which is guaranteed by the Company or any of its Restricted Subsidiaries) having an
outstanding principal amount of $20.0 million or more that has resulted in the acceleration of
the payment of such Indebtedness or the failure to pay the principal of such Indebtedness at
the final Stated Maturity of such Indebtedness; (vi) certain final judgments for the payment
of money in an amount of $20.0 million or more that remain undischarged for a period of 60
days; (vii) the occurrence of (a) any Security Document ceasing to be enforceable, with
certain exceptions, (b) any Parity Lien, individually or in the aggregate, having an estimated
good faith value in excess of $10.0 million, ceasing to be an enforceable and perfected Lien,
subject to Permitted Prior Liens, (c) the Company or any other Pledgor denies or disaffirms,
in writing, any obligation of the Company or any other Pledgor set forth in or arising under
any Security Document; (viii) certain events of bankruptcy or insolvency with respect to the
Company or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of
Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary; and
(ix) except as permitted by the Indenture, any Note Guarantee is held in any judicial
proceeding to be unenforceable or invalid or ceases for any reason to be in full force and
effect or any Guarantor or any Person acting on its behalf denies or disaffirms its
obligations under such Guarantor’s Note Guarantee. If any Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in aggregate principal amount of the
then outstanding Notes may declare all the Notes to be due and payable immediately.
Notwithstanding the foregoing, in the case of an Event of Default arising from certain events
of bankruptcy or insolvency, all outstanding Notes will become due and payable immediately
without further action or notice. Holders may not enforce the Indenture or the Notes except
as provided in the Indenture. Subject to certain limitations, Holders of a majority in
aggregate principal amount of the then outstanding Notes may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from Holders of the Notes notice of
any continuing Default or Event of Default (except a Default or Event of Default relating to
the payment of principal or interest or premium, if any) if it determines that withholding
notice is in their interest. The Holders of a majority in aggregate principal amount of the
then outstanding Notes by notice to the Trustee may, on behalf of the Holders of all of the
Notes, rescind an acceleration or waive any existing Default or Event of Default and its
consequences under the Indenture except a continuing Default or Event of Default in



A-6









 







the payment of interest or premium, if any, on, or the principal of, the Notes. The
Company is required to deliver to the Trustee annually a statement regarding compliance with
the Indenture, and the Company is required, upon becoming aware of any Default or Event of
Default, to deliver to the Trustee a statement specifying such Default or Event of Default.




               (13) Trustee Dealings with Company. The Trustee, in its individual or
any other capacity, 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.




               (14) No Recourse Against Others. No past, present or future director,
officer, employee, incorporator or stockholder of the Company or any Guarantor, as such, will
have any liability for any obligations of the Company or the Guarantors under the Notes, the
Indenture, the Note Guarantees or the Note Documents or for any claim based on, in respect of,
or by reason of, such obligations or their creation. Each Holder of Notes by accepting a Note
waives and releases all such liability. The waiver and release are part of the consideration
for the issuance of the Notes. The waiver may not be effective to waive liabilities under
federal securities laws.




               (15) Authentication. This Note will not be valid until authenticated
by the manual signature of the Trustee or an authenticating agent.




               (16) Abbreviations. Customary abbreviations may be used in the name of
a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common),
CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).




               (17) 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 the Trustee may use CUSIP numbers in notices of redemption as
a convenience to Holders. No representation is made as to the accuracy of such numbers either
as printed on the Notes or as contained in any notice of redemption, and reliance may be
placed only on the other identification numbers placed thereon.




               (18) GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK WILL
GOVERN AND BE USED TO CONSTRUE THE INDENTURE, THIS NOTE AND THE NOTE GUARANTEES 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 a copy of
the Indenture. Requests may be made to:



Builders FirstSource, Inc.

2001 Bryan Street, Suite 1600

Dallas, Texas 75201

Attention: General Counsel




A-7









 





Assignment Form




     To assign this Note, fill in the form below:



	 	 	 	 	 
	(I) or (we) assign and transfer this Note to:
	 	 	 	 
	 

	 	 

(Insert assignee’s legal name)
	 	 





 



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



 



 



 



 



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




	 	 	 	 	 
	and irrevocably appoint
	 	 	 	 
	 

	 	 

	 	 
	to transfer this Note on the books of the Company. The agent may substitute another to act for
him.






Date:                     




Your Signature:                                                            

(Sign exactly as your name appears on the face of this Note)




Signature Guarantee*:                                         






 




			
	*	 	Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor
acceptable to the Trustee).





A-8









 





Option of Holder to Elect Purchase




          If you want to elect to have this Note purchased by the Company pursuant to Section 4.10
or 4.15 of the Indenture, check the appropriate box below:




	 	 	 
	oSection 4.10
	 	oSection 4.15






          If you want to elect to have only part of the Note purchased by the Company pursuant to
Section 4.10 or Section 4.15 of the Indenture, state the amount you elect to have purchased:




$                    




Date:                     




Your Signature:                                                            

(Sign exactly as your name appears on the face of this Note)




Tax Identification No.:                                        



Signature Guarantee*:                                         






 




			
	*	 	Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor
acceptable to the Trustee).




A-9









 










Schedule of Exchanges of Interests in the Global Note *




     The following exchanges of a part of this Global Note for an interest in another Global
Note or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note for
an interest in this Global Note, have been made:



	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Principal Amount	 	 
	 	 	Amount of decrease in	 	Amount of increase in	 	[at maturity] of this	 	 
	 	 	Principal Amount	 	Principal Amount	 	Global Note following	 	Signature of authorized
	 	 	[at maturity] of	 	[at maturity] of	 	such decrease	 	officer of Trustee or
	Date of Exchange	 	this Global Note	 	this Global Note	 	(or increase)	 	Custodian
	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 







 




			
	*	 	This schedule should be included only if the Note is issued in global form.





A-10









 





EXHIBIT B




FORM OF CERTIFICATE OF TRANSFER



[Company address block]



[Registrar address block]




     Re: [fill in full title of securities]



     Reference is hereby made to the Indenture, dated as of                      (the “Indenture”),
[between/among]                     , as issuer (the “Company”), [the Guarantors party thereto] and
                    , as trustee. Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.



                         , (the “Transferor”) owns and proposes to transfer the Note[s] or interest
in such Note[s] specified in Annex A hereto, in the principal amount of $                     in such
Note[s] or interests (the “Transfer”), to                                          (the “Transferee”), as
further specified in Annex A hereto. In connection with the Transfer, the Transferor hereby
certifies that:



[CHECK ALL THAT APPLY]




     1. o Check if Transferee will take delivery of a beneficial interest in the
Restricted Global Note or a Restricted Definitive Note pursuant to Rule 144A. The Transfer is
being effected pursuant to and in accordance with Rule 144A under the Securities Act of 1933, as
amended (the “Securities Act”), and, accordingly, the Transferor hereby further certifies that the
beneficial interest or Definitive Note is being transferred to a Person that the Transferor
reasonably believes is purchasing the beneficial interest or Definitive Note for its own account,
or for one or more accounts with respect to which such Person exercises sole investment discretion,
and such Person and each such account is a “qualified institutional buyer” within the meaning of
Rule 144A in a transaction meeting the requirements of Rule 144A, and such Transfer is in
compliance with any applicable blue sky securities laws of any state of the United States. Upon
consummation of the proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global Note and/or the
Restricted Definitive Note and in the Indenture and the Securities Act.



     2. o Check if Transferee will take delivery of a beneficial interest in the
Restricted Global Note or a Restricted Definitive Note pursuant to Regulation S. The Transfer
is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act
and, accordingly, the Transferor hereby further certifies that (i) the Transfer is not being made
to a Person in the United States and (x) at the time the buy order was originated, the Transferee
was outside the United States or such Transferor and any Person acting on its behalf reasonably
believed and believes that the Transferee was outside the United States or (y) the transaction was
executed in, on or through the facilities of a designated offshore securities market and neither
such Transferor nor any Person acting on its behalf knows that the transaction was prearranged with
a buyer in the United States, (ii) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or Rule 904(b) of Regulation S under the Securities Act [and/,]
(iii) the transaction is not part of a plan or scheme to evade the registration requirements of the
Securities Act [and (iv) if the proposed transfer is being made prior to the expiration of any
distribution compliance period required by Regulation S, the transfer is not being made to a U.S.
Person or for the account or benefit of a U.S. Person].903(b)(2) or (3) Upon
consummation of the proposed transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will be subject to the restrictions on Transfer
enumerated in the Private Placement



B-1









 




Legend printed on the Restricted Global Note and/or the Restricted Definitive Note and in the
Indenture and the Securities Act.




     3. o Check and complete if Transferee will take delivery of a beneficial interest
in the Restricted Global Note or a Restricted Definitive Note pursuant to any provision of the
Securities Act other than Rule 144A or Regulation S. The Transfer is being effected in
compliance with the transfer restrictions applicable to beneficial interests in Restricted Global
Notes and Restricted Definitive Notes and pursuant to and in accordance with the Securities Act and
any applicable blue sky securities laws of any state of the United States, and accordingly the
Transferor hereby further certifies that (check one):




     (a) o such Transfer is being effected pursuant to and in accordance with Rule
144 under the Securities Act;



or





     (b) o such Transfer is being effected to the Company or a subsidiary thereof;



or





     (c) o such Transfer is being effected pursuant to an effective registration
statement under the Securities Act and in compliance with the prospectus delivery
requirements of the Securities Act;



or





     (d) o such Transfer is being effected to an Institutional Accredited Investor
and pursuant to an exemption from the registration requirements of the Securities Act
other than Rule 144A, Rule 144, Rule 903 or Rule 904, and the Transferor hereby further
certifies that it has not engaged in any general solicitation within the meaning of
Regulation D under the Securities Act and the Transfer complies with the transfer
restrictions applicable to beneficial interests in a Restricted Global Note or Restricted
Definitive Notes and the requirements of the exemption claimed, which certification is
supported by (1) a certificate executed by the Transferee in the form of Exhibit D to the
Indenture and (2) [if such Transfer is in respect of a principal amount of Notes at the
time of transfer of less than $250,000,] an Opinion of Counsel provided by the Transferor
or the Transferee (a copy of which the Transferor has attached to this certification), to
the effect that such Transfer is in compliance with the Securities Act. Upon consummation
of the proposed transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global Note and/or
the Restricted Definitive Notes and in the Indenture and the Securities Act.



     4. o Check if Transferee will take delivery of a beneficial interest in an
Unrestricted Global Note or of an Unrestricted Definitive Note.



     (a) o Check if Transfer is pursuant to Rule 144. (i) The Transfer is being effected
pursuant to and in accordance with Rule 144 under the Securities Act and in compliance with the
transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any
state of the United States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with the Securities Act.
Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or



B-2









 




Definitive Note will no longer be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the Restricted Global Notes, on Restricted Definitive Notes and
in the Indenture.




     (b) o Check if Transfer is Pursuant to Regulation S. (i) The Transfer is being
effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and in
compliance with the transfer restrictions contained in the Indenture and any applicable blue sky
securities laws of any state of the United States and (ii) the restrictions on transfer contained
in the Indenture and the Private Placement Legend are not required in order to maintain compliance
with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms
of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject
to the restrictions on transfer enumerated in the Private Placement Legend printed on the
Restricted Global Notes, on Restricted Definitive Notes and in the Indenture.



     (c) o Check if Transfer is Pursuant to an Effective Registration Statement under the
Securities Act or Another Exemption. (i) The Transfer is being effected pursuant to an effective
registration statement under the Securities Act or in compliance with an exemption from the
registration requirements of the Securities Act other than Rule 144, Rule 903 or Rule 904 and in
compliance with the transfer restrictions contained in the Indenture and any applicable blue sky
securities laws of any State of the United States and (ii) the restrictions on transfer contained
in the Indenture and the Private Placement Legend are not required in order to maintain compliance
with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms
of the Indenture, the transferred beneficial interest or Definitive Note will not be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted
Global Notes or Restricted Definitive Notes and in the Indenture.



     This certificate and the statements contained herein are made for your benefit and the benefit
of the Company.



	 	 	 	 	 	 	 
	 	 	 	 	 
	 	 	[Insert Name of Transferor]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 






     Dated:                     



B-3









 





ANNEX A TO CERTIFICATE OF TRANSFER




     1. The Transferor owns and proposes to transfer the following:



[CHECK ONE OF (a) OR (b)]




          (a) o a beneficial interest in the Restricted Global Note




                        (CUSIP ___).




          (b) o a Restricted Definitive Note.




     2. After the Transfer the Transferee will hold:



[CHECK ONE]




          (a) o a beneficial interest in the:




               (i) o Restricted Global Note (CUSIP                     ), or



               (ii) o Unrestricted Global Note (CUSIP                     ); or



          (b) o a Restricted Definitive Note; or




          (c) o an Unrestricted Definitive Note,




          in accordance with the terms of the Indenture.




B-4









 





EXHIBIT C




FORM OF CERTIFICATE OF EXCHANGE



[Company address block]



[Registrar address block]




     Re: [fill in full title of securities]



(CUSIP                     )




     Reference is hereby made to the Indenture, dated as of                      (the “Indenture”),
[between/among]                     , as issuer (the “Company”), [the Guarantors party thereto]
and                     , as trustee. Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.



                                             , (the “Owner”) owns and proposes to exchange the Note[s] or
interest in such Note[s] specified herein, in the principal amount of $                     in such Note[s]
or interests (the “Exchange”). In connection with the Exchange, the Owner hereby certifies that:



     1. Exchange of Restricted Definitive Notes or Beneficial Interests in a Restricted Global
Note for Unrestricted Definitive Notes or Beneficial Interests in an Unrestricted Global Note



     (a) o Check if Exchange is from beneficial interest in a Restricted Global Note to
beneficial interest in an Unrestricted Global Note. In connection with the Exchange of the Owner’s
beneficial interest in a Restricted Global Note for a beneficial interest in an Unrestricted Global
Note in an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being
acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to the Global Notes and pursuant to and in
accordance with the Securities Act of 1933, as amended (the “Securities Act”), (iii) the
restrictions on transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the beneficial interest
in an Unrestricted Global Note is being acquired in compliance with any applicable blue sky
securities laws of any state of the United States.



     (b) o Check if Exchange is from beneficial interest in a Restricted Global Note to
Unrestricted Definitive Note. In connection with the Exchange of the Owner’s beneficial interest
in a Restricted Global Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the
Definitive Note is being acquired for the Owner’s own account without transfer, (ii) such Exchange
has been effected in compliance with the transfer restrictions applicable to the Restricted Global
Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the Definitive Note is being acquired in compliance
with any applicable blue sky securities laws of any state of the United States.



     (c) o Check if Exchange is from Restricted Definitive Note to beneficial interest in an
Unrestricted Global Note. In connection with the Owner’s Exchange of a Restricted Definitive Note
for a beneficial interest in an Unrestricted Global Note, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner’s own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions applicable to Restricted
Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions
on transfer contained in the Indenture and the



C-1









 




Private Placement Legend are not required in order to maintain compliance with the Securities
Act and (iv) the beneficial interest is being acquired in compliance with any applicable blue sky
securities laws of any state of the United States.




     (d) o Check if Exchange is from Restricted Definitive Note to Unrestricted Definitive
Note. In connection with the Owner’s Exchange of a Restricted Definitive Note for an Unrestricted
Definitive Note, the Owner hereby certifies (i) the Unrestricted Definitive Note is being acquired
for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in
accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain compliance with the
Securities Act and (iv) the Unrestricted Definitive Note is being acquired in compliance with any
applicable blue sky securities laws of any state of the United States.



     2. Exchange of Restricted Definitive Notes or Beneficial Interests in Restricted Global
Notes for Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes



     (a) o Check if Exchange is from beneficial interest in a Restricted Global Note to
Restricted Definitive Note. In connection with the Exchange of the Owner’s beneficial interest in
a Restricted Global Note for a Restricted Definitive Note with an equal principal amount, the Owner
hereby certifies that the Restricted Definitive Note is being acquired for the Owner’s own account
without transfer. Upon consummation of the proposed Exchange in accordance with the terms of the
Indenture, the Restricted Definitive Note issued will continue to be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted Definitive Note and
in the Indenture and the Securities Act.



     (b) o Check if Exchange is from Restricted Definitive Note to beneficial interest in a
Restricted Global Note. In connection with the Exchange of the Owner’s Restricted Definitive Note
for a beneficial interest in the Restricted Global Note with an equal principal amount, the Owner
hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without
transfer and (ii) such Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance with the Securities
Act, and in compliance with any applicable blue sky securities laws of any state of the United
States. Upon consummation of the proposed Exchange in accordance with the terms of the Indenture,
the beneficial interest issued will be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the relevant Restricted Global Note and in the Indenture and
the Securities Act.



     This certificate and the statements contained herein are made for your benefit and the benefit
of the Company.



	 	 	 	 	 	 	 
	 

	 	 	 	 

[Insert Name of Transferor]
	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 






Dated:                     





C-2











 





EXHIBIT D




FORM OF CERTIFICATE FROM

ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR




[Company address block]




[Registrar address block]




     Re: [fill in full title of securities]



     Reference is hereby made to the Indenture, dated as of                      (the “Indenture”),
[between/among]                                         , as issuer (the “Company”), [the guarantors party thereto]
and                                         , as trustee. Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.



     In connection with our proposed purchase of $                     aggregate principal amount of:



     (a) o      a beneficial interest in a Global Note, or



     (b) o      a Definitive Note,



     we confirm that:



     1. We understand that any subsequent transfer of the Notes or any interest therein is subject
to certain restrictions and conditions set forth in the Indenture and the undersigned agrees to be
bound by, and not to resell, pledge or otherwise transfer the Notes or any interest therein except
in compliance with, such restrictions and conditions and the Securities Act of 1933, as amended
(the “Securities Act”).



     2. We understand that the offer and sale of the Notes have not been registered under the
Securities Act, and that the Notes and any interest therein may not be offered or sold except as
permitted in the following sentence. We agree, on our own behalf and on behalf of any accounts for
which we are acting as hereinafter stated, that if we should sell the Notes or any interest
therein, we will do so only (A) to the Company or any subsidiary thereof, (B) in accordance with
Rule 144A under the Securities Act to a “qualified institutional buyer” (as defined therein), (C)
to an institutional “accredited investor” (as defined below) that, prior to such transfer,
furnishes (or has furnished on its behalf by a U.S. broker-dealer) to you and to the Company a
signed letter substantially in the form of this letter and[, if such transfer is in respect of a
principal amount of Notes, at the time of transfer of less than $250,000,] an Opinion of Counsel in
form reasonably acceptable to the Company to the effect that such transfer is in compliance with
the Securities Act, (D) outside the United States in accordance with Rule 904 of Regulation S under
the Securities Act, (E) pursuant to the provisions of Rule 144 under the Securities Act or (F)
pursuant to an effective registration statement under the Securities Act, and we further agree to
provide to any Person purchasing the Definitive Note or beneficial interest in a Global Note from
us in a transaction meeting the requirements of clauses (A) through (E) of this paragraph a notice
advising such purchaser that resales thereof are restricted as stated herein.



D-1









 





     3. We understand that, on any proposed resale of the Notes or beneficial interest therein, we
will be required to furnish to you and the Company such certifications, legal opinions and other
information as you and the Company may reasonably require to confirm that the proposed sale
complies with the foregoing restrictions. We further understand that the Notes purchased by us
will bear a legend to the foregoing effect.



     4. We are an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or
(7) of Regulation D under the Securities Act) and have such knowledge and experience in financial
and business matters as to be capable of evaluating the merits and risks of our investment in the
Notes, and we and any accounts for which we are acting are each able to bear the economic risk of
our or its investment.



     5. We are acquiring the Notes or beneficial interest therein purchased by us for our own
account or for one or more accounts (each of which is an institutional “accredited investor”) as to
each of which we exercise sole investment discretion.



     You and the Company are entitled to rely upon this letter and are irrevocably authorized to
produce this letter or a copy hereof to any interested party in any administrative or legal
proceedings or official inquiry with respect to the matters covered hereby.



	 	 	 	 	 
	 	 	 
	 

	 	 	 	[Insert Name of Accredited Investor]
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:






Dated:                                         




D-2









 





EXHIBIT E




[FORM OF NOTATION OF GUARANTEE]




          For value received, each Guarantor (which term includes any successor Person under the
Indenture) has, jointly and severally, unconditionally guaranteed, to the extent set forth in the
Indenture and subject to the provisions in the Indenture dated as of [___], 2010 (the
“Indenture”), among Builders FirstSource, Inc., a Delaware corporation (the “Company”), the
Guarantors party thereto and Wilmington Trust Company, a Delaware banking corporation, as trustee
(the “Trustee”), (a) the due and punctual payment of the principal of, and premium, if any, and
interest on, the Notes, whether at maturity, by acceleration, redemption or otherwise, the due and
punctual payment of interest on overdue principal of and interest on the Notes, if any, if lawful,
and the due and punctual performance of all other obligations of the Company to the Holders or the
Trustee all in accordance with the terms of the Indenture and (b) in case of any extension of time
of payment or renewal of any Notes or any of such other obligations, that the same will be promptly
paid in full when due or performed in accordance with the terms of the extension or renewal,
whether at stated maturity, by acceleration or otherwise. The obligations of the Guarantors to the
Holders of Notes and to the Trustee pursuant to the Note Guarantee and the Indenture are expressly
set forth in Article 11 of the Indenture and reference is hereby made to the Indenture for the
precise terms of the Note Guarantee.




          Capitalized terms used but not defined herein have the meanings given to them in the
Indenture.




[Signatures on Following Page]




E-1









 





EXHIBIT E




	 	 	 	 	 	 	 
	 	 	BUILDERS FIRSTSOURCE — NORTHEAST GROUP, LLC, a Delaware
	 	 	limited liability company, as Guarantor
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	BUILDERS FIRSTSOURCE — TEXAS GENPAR, LLC, a Delaware limited
	 	 	liability company, as Guarantor
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	BUILDERS FIRSTSOURCE — MBS, LLC, a Delaware limited
	 	 	liability company, as Guarantor
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 






E-2









 






EXHIBIT E




	 	 	 	 	 	 	 
	 	 	BUILDERS FIRSTSOURCE — TEXAS GROUP, L.P., a Texas
	 	 	limited partnership, as Guarantor
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	BFS TEXAS, LLC, a Delaware limited liability company, as
	 	 	Guarantor
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	BUILDERS FIRSTSOURCE — SOUTH TEXAS, L.P., a Texas
	 	 	limited partnership, as Guarantor
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	BUILDERS FIRSTSOURCE — TEXAS INSTALLED SALES, L.P.,
	 	 	a Texas limited partnership, as Guarantor
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	BFS IP, LLC, a Delaware limited liability company, as Guarantor
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 






E-3









 





EXHIBIT E




	 	 	 	 	 	 	 
	 	 	BUILDERS FIRSTSOURCE — INTELLECTUAL PROPERTY,
	 	 	L.P., a Texas limited partnership, as Guarantor
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	BUILDERS FIRSTSOURCE HOLDINGS, INC., a Delaware
	 	 	corporation, as Guarantor
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	BUILDERS FIRSTSOURCE — DALLAS, LLC, a Delaware limited
	 	 	liability company, as Guarantor
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	BUILDERS FIRSTSOURCE — FLORIDA, LLC, a Delaware limited
	 	 	liability company, as Guarantor
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	BUILDERS FIRSTSOURCE — FLORIDA DESIGN CENTER,
	 	 	LLC, a Delaware limited liability company, as Guarantor
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 






E-4









 






EXHIBIT E




	 	 	 	 	 	 	 
	 	 	BUILDERS FIRSTSOURCE — OHIO VALLEY, LLC, a Delaware
	 	 	limited liability company, as Guarantor
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	BFS, LLC, a Delaware limited liability company, as Guarantor
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	BUILDERS FIRSTSOURCE — ATLANTIC GROUP, LLC, a
	 	 	Delaware limited liability company, as Guarantor
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	BUILDERS FIRSTSOURCE — SOUTHEAST GROUP, LLC, a
	 	 	Delaware limited liability company, as Guarantor
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	CCWP, INC, a South Carolina close corporation, as Guarantor
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 






E-5









 





EXHIBIT E




	 	 	 	 	 	 	 
	 	 	BUILDERS FIRSTSOURCE — RALEIGH, LLC, a Delaware limited
	 	 	liability company, as Guarantor
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	BUILDERS FIRSTSOURCE — COLORADO GROUP, LLC, a
	 	 	Delaware limited liability company, as Guarantor
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	BUILDERS FIRSTSOURCE — COLORADO, LLC, a Delaware
	 	 	limited liability company, as Guarantor
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 







E-6











 






EXHIBIT F




[FORM OF SUPPLEMENTAL INDENTURE

TO BE DELIVERED BY SUBSEQUENT GUARANTORS]




     Supplemental Indenture (this “Supplemental Indenture”), dated as of                                         ,
200___, among                                          (the “Guaranteeing Subsidiary”), a subsidiary of
                                         (or its permitted successor), a [Delaware] corporation (the “Company”), the
Company, the other Guarantors (as defined in the Indenture referred to herein) and
                                        , as trustee under the Indenture referred to below (the “Trustee”).



W I T N E S S E T H




     WHEREAS, the Company has heretofore executed and delivered to the Trustee an indenture (the
“Indenture”), dated as of                     , 200___ providing for the issuance of Second Priority Senior
Secured Floating Rate Notes due 2016 (the “Notes”);



     WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiary
shall execute and deliver to the Trustee a supplemental indenture pursuant to which the
Guaranteeing Subsidiary shall unconditionally guarantee all of the Company’s Obligations under the
Notes and the Indenture on the terms and conditions set forth herein (the “Note Guarantee”); and



     WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute and
deliver this Supplemental Indenture.



     NOW, THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Guaranteeing Subsidiary and the
Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes
as follows:



     1. Capitalized Terms. Capitalized terms used herein without definition shall have
the meanings assigned to them in the Indenture.



     2. Agreement to Guarantee. The Guaranteeing Subsidiary hereby agrees to provide an
unconditional Guarantee on the terms and subject to the conditions set forth in the Note Guarantee
and in the Indenture including but not limited to Article 11 thereof.



     4. No Recourse Against Others. No past, present or future director, officer,
employee, incorporator, stockholder or agent of the Guaranteeing Subsidiary, as such, shall have
any liability for any obligations of the Company or any Guaranteeing Subsidiary under the Notes,
any Note Guarantees, the Indenture or this Supplemental Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each Holder of the Notes by
accepting a Note waives and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes. Such waiver may not be effective to waive liabilities
under the federal securities laws and it is the view of the SEC that such a waiver is against
public policy.



     5. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED
TO CONSTRUE THIS SUPPLEMENTAL INDENTURE 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.



F-1









 





EXHIBIT F




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



     7. Effect of Headings. The Section headings herein are for convenience only and
shall not affect the construction hereof.



     8. The Trustee. The Trustee shall not be responsible in any manner whatsoever for or
in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of
the recitals contained herein, all of which recitals are made solely by the Guaranteeing Subsidiary
and the Company.



F-2









 





EXHIBIT F




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



     Dated:                     , 20___



	 	 	 	 	 
	 	





[Guaranteeing Subsidiary]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	[Company]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	[Existing Guarantors]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	[Trustee],

as Trustee

 	 
	 	By:  	 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 




F-3