Exhibit 10.18


 










 


NEWPAGE
CORPORATION


 


AND EACH OF THE
GUARANTORS PARTY HERETO


 


10% SENIOR
SECURED NOTES DUE 2012


 










 


INDENTURE


 


Dated as of May
2, 2005


 










 


HSBC Bank USA,
National Association


 


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)

  	
  12.03

  
	
   

  	
  (c)

  	
  12.03

  
	
  313

  	
  (a)

  	
  7.06

  
	
   

  	
  (b)(2)

  	
  7.06; 7.07

  
	
   

  	
  (c)

  	
  7.06; 12.02

  
	
   

  	
  (d)

  	
  7.06

  
	
  314

  	
  (a)

  	
  4.03; 12.02;
  12.05

  
	
   

  	
  (c)(1)

  	
  12.04

  
	
   

  	
  (c)(2)

  	
  12.04

  
	
   

  	
  (c)(3)

  	
  N.A.

  
	
   

  	
  (e)

  	
  12.05

  
	
   

  	
  (f)

  	
  N.A.

  
	
  315

  	
  (a)

  	
  7.01

  
	
   

  	
  (b)

  	
  7.05; 12.02

  
	
   

  	
  (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)

  	
  12.01

  
	
   

  	
  (b)

  	
  N.A.

  
	
   

  	
  (c)

  	
  12.01

  
				



 










N.A. means not applicable.


* This Cross Reference
Table is not part of the Indenture.


 





















 


TABLE OF CONTENTS


 


	
  ARTICLE 1

  	
   

  
	
  DEFINITIONS
  AND INCORPORATION

  BY REFERENCE

  	
   

  
	
   

  	
   

  
	
  Section 1.01

  	
  Definitions

  	
   

  
	
  Section 1.02

  	
  Other Definitions

  	
   

  
	
  Section 1.03

  	
  Incorporation
  by Reference of Trust Indenture Act

  	
   

  
	
  Section 1.04

  	
  Rules of
  Construction

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2

  THE NOTES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.01

  	
  Form and Dating

  	
   

  
	
  Section 2.02

  	
  Execution
  and Authentication

  	
   

  
	
  Section 2.03

  	
  Registrar
  and Paying Agent

  	
   

  
	
  Section 2.04

  	
  Paying
  Agent to Hold Money in Trust

  	
   

  
	
  Section 2.05

  	
  Holder Lists

  	
   

  
	
  Section 2.06

  	
  Transfer and
  Exchange

  	
   

  
	
  Section 2.07

  	
  Replacement Notes

  	
   

  
	
  Section 2.08

  	
  Outstanding Notes

  	
   

  
	
  Section 2.09

  	
  Treasury Notes

  	
   

  
	
  Section 2.10

  	
  Temporary Notes

  	
   

  
	
  Section 2.11

  	
  Cancellation

  	
   

  
	
  Section 2.12

  	
  Defaulted Interest

  	
   

  
	
  Section 2.13

  	
  CUSIP Numbers

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3

  	
   

  
	
  REDEMPTION
  AND PREPAYMENT

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.01

  	
  Notices to Trustee

  	
   

  
	
  Section 3.02

  	
  Selection of
  Notes to Be Redeemed or Purchased

  	
   

  
	
  Section 3.03

  	
  Notice of
  Redemption or Purchase

  	
   

  
	
  Section 3.04

  	
  Effect of
  Notice of Redemption or Purchase

  	
   

  
	
  Section 3.05

  	
  Deposit of
  Redemption or Purchase Price

  	
   

  
	
  Section 3.06

  	
  Notes Redeemed
  or Purchased in Part

  	
   

  
	
  Section 3.07

  	
  Optional
  Redemption

  	
   

  
	
  Section 3.08

  	
  Mandatory
  Redemption

  	
   

  
	
  Section 3.09

  	
  Offer to
  Purchase by Application of Excess Proceeds

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4

  	
   

  
	
  COVENANTS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 4.01

  	
  Payment of Notes

  	
   

  
	
  Section 4.02

  	
  Maintenance of
  Office or Agency

  	
   

  
	
  Section 4.03

  	
  Reports

  	
   

  
	
  Section 4.04

  	
  Compliance
  Certificate

  	
   

  
	
  Section 4.05

  	
  Taxes

  	
   

  
	
  Section 4.06

  	
  Stay,
  Extension and Usury Laws

  	
   

  
	
  Section 4.07

  	
  Restricted
  Payments

  	
   

  



 


i





















 


	
  Section 4.08

  	
  Dividend and
  Other Payment Restrictions Affecting Subsidiaries

  	
   

  
	
  Section 4.09

  	
  Incurrence of
  Indebtedness and Issuance of Disqualified Stock and Preferred Stock

  	
   

  
	
  Section 4.10

  	
  Asset Sales

  	
   

  
	
  Section 4.11

  	
  Transactions
  with Affiliates

  	
   

  
	
  Section 4.12

  	
  Liens

  	
   

  
	
  Section 4.13

  	
  Business
  Activities

  	
   

  
	
  Section 4.14

  	
  Corporate
  Existence

  	
   

  
	
  Section 4.15

  	
  Offer to
  Repurchase Upon Change of Control

  	
   

  
	
  Section 4.16

  	
  Payments for
  Consent

  	
   

  
	
  Section 4.17

  	
  No Amendment
  to Subordination Provisions

  	
   

  
	
  Section 4.18

  	
  Limitation on
  Sale and Leaseback Transactions

  	
   

  
	
  Section 4.19

  	
  Additional
  Subsidiary Guarantees

  	
   

  
	
  Section 4.20

  	
  Designation of
  Restricted and Unrestricted Subsidiaries

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5

  	
   

  
	
  SUCCESSORS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 5.01

  	
  Merger,
  Consolidation, or Sale of Assets

  	
   

  
	
  Section 5.02

  	
  Successor
  Corporation Substituted

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6

  	
   

  
	
  DEFAULTS AND
  REMEDIES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 6.01

  	
  Events of Default

  	
   

  
	
  Section 6.02

  	
  Acceleration

  	
   

  
	
  Section 6.03

  	
  Other Remedies

  	
   

  
	
  Section 6.04

  	
  Waiver of Past
  Defaults

  	
   

  
	
  Section 6.05

  	
  Control by
  Majority

  	
   

  
	
  Section 6.06

  	
  Limitation on
  Suits

  	
   

  
	
  Section 6.07

  	
  Rights of
  Holders to Receive Payment

  	
   

  
	
  Section 6.08

  	
  Collection
  Suit by Trustee

  	
   

  
	
  Section 6.09

  	
  Trustee May
  File Proofs of Claim

  	
   

  
	
  Section 6.10

  	
  Priorities

  	
   

  
	
  Section 6.11

  	
  Undertaking for
  Costs

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7

  	
   

  
	
  TRUSTEE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.01

  	
  Duties of Trustee

  	
   

  
	
  Section 7.02

  	
  Rights of Trustee

  	
   

  
	
  Section 7.03

  	
  Individual
  Rights of Trustee

  	
   

  
	
  Section 7.04

  	
  Trustee’s
  Disclaimer

  	
   

  
	
  Section 7.05

  	
  Notice of Defaults

  	
   

  
	
  Section 7.06

  	
  Reports by
  Trustee to Holders

  	
   

  
	
  Section 7.07

  	
  Compensation
  and Indemnity

  	
   

  
	
  Section 7.08

  	
  Replacement of
  Trustee

  	
   

  
	
  Section 7.09

  	
  Successor
  Trustee by Merger, etc.

  	
   

  
	
  Section 7.10

  	
  Eligibility;
  Disqualification

  	
   

  
	
  Section 7.11

  	
  Preferential
  Collection of Claims Against Company

  	
   

  



 


ii





















 


	
  ARTICLE 8

  	
   

  
	
  LEGAL
  DEFEASANCE AND COVENANT DEFEASANCE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 8.01

  	
  Option to
  Effect Legal Defeasance or Covenant Defeasance

  	
   

  
	
  Section 8.02

  	
  Legal
  Defeasance and Discharge

  	
   

  
	
  Section 8.03

  	
  Covenant
  Defeasance

  	
   

  
	
  Section 8.04

  	
  Conditions to
  Legal or Covenant Defeasance

  	
   

  
	
  Section 8.05

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

  	
   

  
	
  Section 8.06

  	
  Repayment to
  Company

  	
   

  
	
  Section 8.07

  	
  Reinstatement

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9

  	
   

  
	
  AMENDMENT,
  SUPPLEMENT AND WAIVER

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.01

  	
  Without
  Consent of Holders

  	
   

  
	
  Section 9.02

  	
  With Consent of
  Holders

  	
   

  
	
  Section 9.03

  	
  Compliance
  with Trust Indenture Act

  	
   

  
	
  Section 9.04

  	
  Revocation and
  Effect of Consents

  	
   

  
	
  Section 9.05

  	
  Notation on or
  Exchange of Notes

  	
   

  
	
  Section 9.06

  	
  Trustee to
  Sign Amendments, etc.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10

  	
   

  
	
  COLLATERAL
  AND SECURITY

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 10.01

  	
  Equal and
  Ratable Sharing of Collateral by Holders of Parity Lien Debt

  	
   

  
	
  Section 10.02

  	
  Ranking of
  Parity Liens

  	
   

  
	
  Section 10.03

  	
  Release of
  Liens in Respect of Notes

  	
   

  
	
  Section 10.04

  	
  Relative Rights

  	
   

  
	
  Section 10.05

  	
  Compliance
  with Trust Indenture Act

  	
   

  
	
  Section 10.06

  	
  Collateral
  Trustee

  	
   

  
	
  Section 10.07

  	
  Further
  Assurances; Insurance

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 11

  	
   

  
	
  SUBSIDIARY
  GUARANTEES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 11.01

  	
  Guarantee

  	
   

  
	
  Section 11.02

  	
  Limitation
  on Guarantor Liability

  	
   

  
	
  Section 11.03

  	
  Execution
  and Delivery of Subsidiary Guarantee

  	
   

  
	
  Section 11.04

  	
  Guarantors May
  Consolidate, etc., on Certain Terms

  	
   

  
	
  Section 11.05

  	
  Releases

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 12

  	
   

  
	
  SATISFACTION
  AND DISCHARGE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 12.01

  	
  Satisfaction
  and Discharge

  	
   

  
	
  Section 12.02

  	
  Application
  of Trust Money

  	
   

  
	
  Section 12.03

  	
  Repayment
  to the Company

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 13

  	
   

  
	
  MISCELLANEOUS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 13.01

  	
  Trust
  Indenture Act Controls

  	
   

  
	
  Section 13.02

  	
  Notices

  	
   

  



 


iii





















 


	
  Section 13.03

  	
  Communication
  by Holders with Other Holders of Notes

  	
   

  
	
  Section 13.04

  	
  Certificate
  and Opinion as to Conditions Precedent

  	
   

  
	
  Section 13.05

  	
  Statements
  Required in Certificate or Opinion

  	
   

  
	
  Section 13.06

  	
  Rules
  by Trustee and Agents

  	
   

  
	
  Section 13.07

  	
  No
  Personal Liability of Directors, Officers, Employees and Stockholders

  	
   

  
	
  Section 13.08

  	
  Governing
  Law

  	
   

  
	
  Section 13.09

  	
  No
  Adverse Interpretation of Other Agreements

  	
   

  
	
  Section 13.10

  	
  Successors

  	
   

  
	
  Section 13.11

  	
  Severability

  	
   

  
	
  Section 13.12

  	
  Counterpart
  Originals

  	
   

  
	
  Section 13.13

  	
  Table
  of Contents, Headings, etc.

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBITS

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit
  A1

  	
  FORM
  OF NOTE

  	
   

  
	
  Exhibit A2

  	
  FORM OF
  REGULATIONS TEMPORARY GLOBAL NOTE

  	
   

  
	
  Exhibit
  B

  	
  FORM OF
  CERTIFICATE OF TRANSFER

  	
   

  
	
  Exhibit
  C

  	
  FORM OF
  CERTIFICATE OF EXCHANGE

  	
   

  
	
  Exhibit
  D

  	
  FORM OF
  NOTATION OF GUARANTEE

  	
   

  
	
  Exhibit
  E

  	
  FORM OF
  SUPPLEMENTAL INDENTURE

  	
   

  



 


iv





















 


INDENTURE dated as of May 2, 2005 among
NewPage Corporation (the “Company”), a Delaware corporation, the Guarantors (as defined) and HSBC
Bank USA, National Association, 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 10% Senior Secured Notes due 2012
(the “Notes”):


 


ARTICLE 1
DEFINITIONS AND
INCORPORATION

BY REFERENCE


 


Section 1.01                                Definitions.


 


“144A Global Note” means a Global Note substantially in the
form of Exhibit A1 hereto bearing the Global Note Legend and the Private
Placement Legend and deposited with or on behalf of, and registered in the name
of, the Depositary or its nominee that will be issued in a denomination equal
to the outstanding principal amount of the Notes sold in reliance on Rule 144A.


 


“ABL Collateral” means all now owned or hereafter acquired (a) “accounts”
and “payment intangibles,” other than “payment intangibles” (as defined in Article 9
of the UCC) which constitute identifiable proceeds of the Shared Collateral
and/or the Separate Collateral, (b) “inventory” (as defined in Article 9 of
the UCC) or documents of title for any inventory; (c) “deposit accounts” (as
defined in Article 9 of the UCC), “securities accounts” (as defined in Article 8
of the UCC), including all monies, “uncertificated securities,” and “securities
entitlements” (in each case, as defined in Article 8 of the UCC) contained
therein (including all cash, marketable securities and other funds held in or
on deposit in either of the foregoing), “instruments” (as defined in Article 9
of the UCC), including Intercompany Notes of Subsidiaries, and “chattel paper”
(as defined in Article 9 of the UCC); provided,
however, that to the extent that
instruments or chattel paper constitute identifiable proceeds of the Shared
Collateral or the Separate Collateral or other identifiable proceeds of the
Shared Collateral or the Separate Collateral are deposited or held in any such
bank accounts or securities accounts after an Enforcement Notice, then such
instruments, chattel paper or other identifiable proceeds shall be treated as
Shared Collateral or Separate Collateral (as applicable); (d) General
Intangibles pertaining to the other items of property included within clauses
(a), (b), (c), (e) and (f) of this definition of ABL Collateral, including,
without limitation, all contingent rights with respect to warranties on
inventory or accounts which are not yet “payment intangibles” (as defined in Article 9
of the UCC); (e) “records” (as defined in Article 9 of the UCC), “supporting
obligations” (as defined in Article 9 of the UCC) and related Letters of
Credit, commercial tort claims or other claims and causes of action, in each
case, to the extent related primarily to any of the foregoing; and (f)
substitutions, replacements, accessions, products and proceeds (including,
without limitation, insurance proceeds, licenses, royalties, income, payments,
claims, damages and proceeds of suit) of any or all of the foregoing.


 


“ABL Facility” means that certain Revolving Loan Credit and
Guarantee Agreement, dated as of the date of this Indenture, by and among the
Company, the guarantors party thereto, the lenders party thereto, Goldman Sachs
Credit Partners L.P., as Administrative Agent, Joint Lead Arranger, Joint
Bookrunner and Co-Syndication Agent, UBS Securities LLC, as Joint Lead
Arranger, Joint Bookrunner and Co-Syndication Agent, and JPMorgan Chase Bank,
N.A., as revolving loan collateral agent.


 


1





















 


“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.


 


“Acquisition” means the transactions contemplated by the
Purchase Agreement dated as of January 14, 2005 as amended, between
Escanaba Timber LLC (formerly named Maple Acquisition LLC) and MeadWestvaco
Corporation, including the borrowings under the Credit Agreements and the
offering of the Notes, the Senior Secured Fixed Rate Notes and the Senior
Subordinated Notes.


 


“Act of Required Debtholders” means, as to any matter at any time:


 


(1)                    prior to the
Discharge of Priority Lien Obligations, a direction in writing delivered to the
Collateral Trustee by or with the written consent of the holders of more than
50% of the sum of:


 


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


 


(b)         other than in connection with the exercise
of remedies, the aggregate unfunded commitments to extend credit which, when
funded, would constitute Priority Lien Debt; and


 


(2)                    at any time after
the Discharge of Priority Lien Obligations, a direction in writing delivered to
the Collateral Trustee by or with the written consent of the holders of Parity Debt
representing the Required Parity Lien Debtholders.


 


For purposes of this definition, (a)
Secured Debt registered in the name of, or beneficially owned by, the Company
or any Affiliate of the Company (other than Senior Secured Notes held by any
Person that is an Affiliate of the Company as of the date of this Indenture and
that is regulated by any banking or insurance authority) will be deemed not to
be outstanding, and (b) votes will be determined in accordance with the
provisions of Section 8.2 of the Collateral Trust Agreement.


 


“Actionable Default” means (1) the failure to pay any payment of
principal of or interest on any Series of Secured Debt outstanding in the
amount of $25.0 million or more resulting in an event of default under the
applicable Series of Secured Debt after payment is due, including payments that
are due (or if any required offer had been timely made would be due) in respect
of any mandatory offer to purchase Parity Lien Debt resulting in an event of
default under the applicable Series of Secured Debt, (2) the failure to pay in
full, when due and payable in full (whether at maturity, upon acceleration or
otherwise), the ABL Facility, the First Lien Term Loans, the Senior Secured
Notes or any other Series of Secured Debt outstanding in the amount of $25.0
million or more, (3) the exercise by the Collateral Trustee or any of its
co-trustees or agents of any right or power that is exercisable by it only upon
default to take sole and exclusive dominion or control over any deposits in a
deposit account, commodity contract in a commodity account or financial asset
in a securities account constituting any Shared Collateral or the delivery of
any instructions to the Collateral Trustee directing it to foreclose or
otherwise enforce, or to disburse the proceeds of enforcement of, any Lien upon
any Collateral, or (4) the occurrence of any event of default under the
applicable Senior Secured Note Indenture or any Credit Agreement arising from
the


 


2





















 


commencement of any bankruptcy case, receivership
or other Insolvency or Liquidation Proceeding by or against the Company or any
of its Subsidiaries or any similar default provision at any time in effect
under any indenture or agreement governing any Series of Secured Debt.


 


“Additional Notes” means additional Notes (other than the
Initial Notes and the Exchange 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 Premium” means, with respect to any Note on any
redemption date, the greater of:


 


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


 


(2) the excess of:


 


(a)
the present value at such redemption date of (i) the redemption price of such Note
at May 1, 2009, (such redemption price being set forth in the table appearing
in Section 3.07(c) hereof) plus (ii)
all required interest payments due on such Note through May 1, 2009 (excluding
accrued but unpaid interest to the redemption date), computed using a discount
rate equal to the Treasury Rate as of such redemption date plus 50 basis points; over


 


(b)
the principal amount of such Note.


 


“Applicable Procedures” means, with
respect to any transfer, redemption or exchange of or for beneficial interests
in any Global Note, the rules and procedures of the Depositary, Euroclear and
Clearstream that apply to such transfer, redemption 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 shall be governed by Sections
4.15 and 5.01 of this Indenture and not by Section 4.10 of this Indenture;
and


 


(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 (other than directors’
qualifying Equity Interests or Equity Interests required by applicable law to
be held by a Person other than the Company or a Restricted Subsidiary).


 


Notwithstanding the preceding, none of the
following items will be deemed to be an Asset Sale:


 


3





















 


(3) any single
transaction or series of related transactions that involves assets having a Fair
Market Value of less than $10.0 million;


 


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


 


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


 


(6) the licensing
of intellectual property or other general intangibles to third persons on customary
terms as determined by the Board of Directors in good faith and the ordinary
course of business;


 


(7) the sale or
disposition in the ordinary course of business of any property or equipment that
has become damaged, worn-out or obsolete, in the ordinary course of business;


 


(8) to the extent
allowable under Section 1031 of the Internal Revenue Code of 1986, any exchange
of like property for use in a Permitted Business;


 


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


 


(10) a Restricted
Payment that does not violate Section 4.07 of this Indenture or a Permitted
Investment;


 


(11) the sale,
lease, sub-lease, license, sub-license, consignment, conveyance or other disposition
of equipment, inventory or other assets in the ordinary course of business,
including leases with respect to facilities that are temporarily not in use or
pending their disposition, or accounts receivable in connection with the
compromise, settlement or collection thereof;


 


(12) the creation
of a Lien (but not the sale or other disposition of property subject to such
Lien); and


 


(13) the transfer
or sale of Receivables and Related Assets of the type specified in the definition
of “Qualified Receivables Transaction” to a Receivables Entity or to any other
Person in connection with a Qualified Receivables Transaction or the creation
of a Lien on any such Receivables or Related Assets in connection with a
Qualified Receivables Transaction.


 


“Attributable Debt” in respect of a Sale/Leaseback Transaction
means, as at the time of determination, the present value (discounted at the
interest rate borne by the Notes, compounded annually) of the total obligations
of the lessee for rental payments during the remaining term of the lease
included in such Sale/Leaseback Transaction (including any period for which
such lease has been extended); provided,
however, that if such Sale/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


 


4





















 


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:


 


(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 or board of directors of such company or of the sole member or of the
managing member thereof; and


 


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


 


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


 


(1) 85% of the
face amount of all accounts receivable owned by the Company and its Restricted
Subsidiaries as of the end of the most recent fiscal quarter preceding such
date that were not more than 180 days past due; plus


 


(2) 75% of the
book value of all inventory, net of reserves, owned by the Company and its
Restricted Subsidiaries as of the end of the most recent fiscal quarter
preceding such date;


 


provided that any accounts
receivable or inventory that are utilized in connection with a Qualified
Receivables Transaction will be excluded from the Borrowing Base.


 


“Broker-Dealer” has the meaning set forth in the Registration
Rights Agreement.


 


“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


 


5





















 


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 full faith and credit of the United States
is pledged in support of those securities) having maturities of not more than
360 days 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 Agreements 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 at the time of acquisition;


 


(4) repurchase
obligations for underlying securities of the types described in clauses (2) and
(3) above entered into with any financial institution meeting the
qualifications specified in clause (3) above;


 


(5) commercial
paper having at the time of acquisition one of the two highest ratings obtainable
from Moody’s Investors Service, Inc. or Standard & Poor’s Rating Service
and, in each case, maturing within nine months after the date of acquisition;


 


(6) securities
issued by any state of the United States of America or any political subdivision
of any such state or any public instrumentality thereof maturing within one
year from the date of acquisition thereof and at the time of acquisition
thereof, having one of the two highest ratings obtainable from either Standard
& Poor’s Rating Services or Moody’s Investors Service, Inc.;


 


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


 


(8) local
currencies held by the Company or any of its Restricted Subsidiaries, from time
to time in the ordinary course of business and consistent with past practice.


 


“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 Shared Collateral.


 


“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;


 


6





















 


(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 a
Principal or a Related Party of a Principal, 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) after an
initial public offering of the Company or any direct or indirect parent of the Company,
the first day on which a majority of the members of the Board of Directors of
the Company are not Continuing Directors.


 


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


 


“Clearstream” means Clearstream Banking, S.A. and any successor
thereto.


 


“Collateral” means, collectively, the Shared Collateral and the
Separate Collateral.


 


“Collateral Trust Agreement” means the collateral trust agreement, dated
as of the date of this Indenture, by and among NewPage Corporation, the
Pledgors from time to time party thereto, Goldman Sachs Credit Partners L.P.,
as Administrative Agent under the First Lien Term Loan Agreement, HSBC Bank
USA, National Association, as Trustee, and The Bank of New York, as Collateral
Trustee (in such capacity and together with its successors in such capacity).


 


“Collateral Trustee” means The Bank of New York, in its capacity
as Collateral Trustee under the Collateral Trust Agreement, together with its
successors in such capacity.


 


“Company” means NewPage Corporation, a Delaware corporation, and any and all
successors thereto.


 


“Consolidated Adjusted EBITDA” 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


 


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


 


(4) 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; plus


 


7





















 


(5) nonrecurring
charges or expenses made or incurred in connection with any restructuring and
transaction costs incurred in connection with any future acquisition, to the extent
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; provided
that for each fiscal quarter ending prior to the date of this Indenture,
the Consolidated Adjusted EBITDA of the Company will be deemed to be $85.0
million.


 


“Consolidated Coverage Ratio” means with respect to any specified Person
for any period, the ratio of the Consolidated Adjusted EBITDA of such Person
for such period to the Interest Expense 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) or
issues, repurchases or redeems Disqualified Stock subsequent to the
commencement of the period for which the Consolidated Coverage Ratio is being
calculated and on or prior to the date on which the event for which the
calculation of the Consolidated Coverage Ratio is made (the “Calculation Date”),
then the Consolidated 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 Disqualified Stock, and the use of the proceeds therefrom, as if
the same had occurred at the beginning of the applicable four-quarter reference
period.


 


In addition, for purposes of calculating
the Consolidated 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-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), including Pro Forma Cost Savings
whether or not such Pro Forma Cost Savings comply with Regulation S-X, as if
they had occurred on the first day of the four-quarter reference period;


 


(2) the
Consolidated Adjusted EBITDA 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 (including by
adding back the amount of any attributable Consolidated Adjusted EBITDA that
was negative);


 


(3) the Interest
Expense 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 Interest Expense 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-quarter period;


 


8





















 


(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-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 if such Hedging Obligation has a
remaining term as at the Calculation Date in excess of 12 months).


 


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


 


(1) the aggregate
principal amount, without duplication, of all Indebtedness of any of the Parent
Entities plus all Indebtedness of Subsidiaries of any Parent Entity (other than
Unrestricted Subsidiaries of the Company), with letters of credit being deemed
to have a principal amount for this purpose equal to the face amount thereof, whether
or not drawn, to:


 


(2) the aggregate
amount of the Company’s Consolidated Adjusted EBITDA for the most recent
four-quarter period for which financial information is available.


 


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


 


(1) acquisitions
that have been made by the specified Person or any of its Restricted Subsidiaries,
including through mergers or consolidations, or any Person or any of its
Restricted Subsidiaries acquired by the specified Person or any of its Restricted
Subsidiaries, and including any related financing transactions and including
increases in ownership of Restricted Subsidiaries, during the four-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 Consolidated Group Leverage
Ratio is made (the “Group Leverage Calculation
Date”) will be given pro forma effect (in accordance with Regulation
S-X under the Securities Act), including Pro Forma Cost Savings whether or not
such Pro Forma Cost Savings comply with Regulation S-X, as if they had occurred
on the first day of the four-quarter reference period;


 


(2) the
Consolidated Adjusted EBITDA attributable to discontinued operations, as determined
in accordance with GAAP, and operations or businesses (and ownership interests therein)
disposed of prior to the Group Leverage Calculation Date, will be excluded
(including by adding back the amount of any attributable Consolidated Adjusted
EBITDA that was negative);


 


(3) the Interest
Expense attributable to discontinued operations, as determined in accordance
with GAAP, and operations or businesses (and ownership interests therein)
disposed of prior to the Group Leverage Calculation Date, will be excluded, but
only to the extent that the obligations giving rise to such Interest Expense
will not be obligations of the specified Person or any of its Restricted
Subsidiaries following the Group Leverage Calculation Date;


 


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


 


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


 


9





















 


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


 


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


 


(3) the
cumulative effect of a change in accounting principles will be excluded;


 


(4) all goodwill
impairment charges will be excluded;


 


(5) non-cash
compensation charges or other non-cash expenses or charges arising from the
grant of or issuance or repricing of stock, stock options or other equity-based
awards to directors, officers or employees of the Company and its Restricted
Subsidiaries will be excluded; and


 


(6) transaction
costs and restructuring charges incurred in connection with the Acquisition, in
an aggregate amount not to exceed $10.0 million, will be excluded.


 


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


 


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


 


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


 


“Corporate Trust Office of the Trustee” shall 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.


 


“Credit Agreements” means each of the ABL Facility and the
First Lien Term Loan Agreement, 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 a
receivables financing or sales of debt securities to institutional investors)
in whole or in part from time to time, including any agreement extending the
maturity of, refinancing, replacing or otherwise restructuring (including
increasing the amount of available borrowings or letters of credit thereunder
or adding Subsidiaries of the Company as additional
borrowers or guarantors thereunder) all or any portion of the Indebtedness
under such agreement or any successor or replacement agreement and whether by
the same or any other agent, lender or group of lenders.


 


10





















 


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


 


“Custodian” means the Trustee, as custodian with respect to the Notes issuable or
issued in whole or in part in global form, or any successor entity thereto
appointed as Custodian hereunder and having become such pursuant to the
applicable provisions of this Indenture.


 


“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 or Section 2.10
hereof, substantially in the form of Exhibit Al 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.


 


“Designated Non-cash Consideration” means the Fair
Market Value of non-cash consideration received by the Company or any
Restricted Subsidiary in connection with an Asset Sale that is so designated as
Designated Non-cash Consideration pursuant to an Officers’ Certificate
delivered to the Trustee, setting forth the basis of such valuation.


 


“Discharge of Priority Lien Obligations” means the occurrence of all of the
following:


 


(1)          termination or expiration of all
commitments to extend credit that would constitute Priority Lien Debt;


 


(2)          payment in full in cash of the principal of
and interest and premium (if any) on all Priority Lien Debt (other than any
undrawn letters of credit);


 


(3)          discharge or cash collateralization (at the
lower of (1) 105% of the aggregate undrawn amount and (2) the percentage of the
aggregate undrawn amount required for release of liens under the terms of the
applicable Priority Lien Document) of all outstanding letters of credit
constituting Priority Lien Debt; and


 


(4)          payment in full in cash of all other
Priority Lien Obligations that are outstanding and unpaid at the time the
Priority Lien Debt is paid in full in cash (other than any obligations for
taxes, costs, indemnifications, reimbursements, damages and other liabilities
in respect of which no claim or demand for payment has been made at such time).


 


“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


 


11





















 


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 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 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.


 


“Enforcement Notice” means a written notice delivered pursuant
to the Intercreditor Agreement, at a time when an event of default under the
ABL Facility or an event of default under the First Lien Term Loan Agreement
has occurred and is continuing, by either Secured Debt Representative
thereunder to the other, specifying the relevant event of default.


 


“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) and 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) 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;


 


provided, however that, for the
purpose of defining “equally and ratably” during the pendency of any Actionable
default, and subject to Section 3.4 of the Collateral Trust Agreement, if
any payment or distribution is made in cash to holders of Obligations under any
other holders of Parity Lien Obligations from or on account of Separate
Collateral by reason of enforcement of Liens or realization in a bankruptcy
case, receivership or other Insolvency or Liquidation Proceeding, then any
concurrent or subsequent payment or distribution that is to be made in cash to such holders from
or on account of Shared Collateral by reason of any such enforcement or
realization shall be reduced, and any concurrent or subsequent payment or
distribution that is to be made in cash to the remaining holders of Parity Lien


 


12





















 


Obligations from or on account of Shared
Collateral by reason of any such enforcement or realization shall be increased,
to the extent necessary to cause the aggregate amount of all payments and
distributions made in cash to all holders of Parity Lien Obligations (whether
made from or on account of Separate Collateral or from or on account of Shared
Collateral) by reason of any such enforcement or realization to be distributed
equally and ratably as fully as if the Separate Collateral had been Shared
Collateral; provided, further that
during the pendency of any Actionable Default, and subject to Section 3.4
of the Collateral Trust Agreement, if any payment or distribution is made in
cash to any holders of Priority Lien Obligations from or on account of Separate
Collateral by reason of enforcement of Liens or realization in a bankruptcy
case, receivership or other Insolvency or Liquidation Proceeding, then any
concurrent or subsequent payment or distribution that is to be made in cash to
such holders from or on account of Shared Collateral by reason of any such
enforcement or realization shall be reduced, and any concurrent or subsequent
payment or distribution that is to be made in cash to the remaining holders of
Priority Lien Obligations from or on account of Shared Collateral by reason of
any such enforcement or realization shall be increased, to the extent necessary
to cause the aggregate amount of all payments and distributions made in cash to
all holders of Priority Lien Obligations (whether made from or on account of
Separate Collateral or from or on account of Shared Collateral) by reason of
any such enforcement or realization to be distributed equally and ratably as
fully as if the Separate Collateral had been Shared Collateral.


 


“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 Qualified Capital Stock
of the Company or a direct or indirect parent of the Company (other than to a
Subsidiary of the Company) pursuant to a registration statement that has been
declared effective by the SEC pursuant to the Securities Act (other than a
registration statement on Form S-8 or otherwise relating to equity securities
issuable under any employee benefit plan of the Company).


 


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


 


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


 


“Exchange Notes” means the Senior Secured Notes and the Senior
Subordinated Notes issued in the Exchange Offer pursuant to the Registration
Rights Agreement.


 


“Exchange Offer” has the meaning set forth for such term in the
Registration Rights Agreement.


 


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


 


“Excluded Contributions” means the net cash proceeds received by the
Company after the date of this Indenture from (i) contributions (other than
from any Subsidiary) to its common equity capital and (ii) the sale (other than
to any Subsidiary or any management equity plan or stock option plan or any
other management or employee benefit plan or agreement of the Company or any
Subsidiary) of Capital Stock (other than Disqualified Stock) of the Company, in
each case designated as Excluded Contributions on the date of receipt pursuant
to an Officers’ Certificate delivered to the Trustee.


 


“Existing Indebtedness” means Indebtedness of the Company and its
Subsidiaries (other than Indebtedness under the Credit Agreements) in existence
on the date of this Indenture.


 


13





















 


“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).


 


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


 


“First Lien Term Loan Agreement” means that certain Term Loan Credit and
Guaranty Agreement, dated as of the date hereof, by and among the Company, the
guarantors party thereto, the lenders party thereto, Goldman Sachs Credit
Partners L.P., as Administrative Agent, Joint Lead Arranger, Joint Bookrunner
and Co-Syndication Agent and UBS Securities LLC, as Joint Lead Arranger, Joint
Bookrunner and Co-Syndication Agent.


 


“First Lien Term Loans” means the principal of and interest and
premium (if any) on Indebtedness of the Company incurred under the First Lien
Term Loan Agreement.


 


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


 


“GAAP” means generally
accepted accounting principles which are in effect on the date of this Indenture
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 or in the rules and regulations of the SEC
governing the inclusion of financial statements (including pro forma financial
statements) in periodic reports required to be filed pursuant to Section 13
of the Exchange Act, including opinions and pronouncements in staff accounting
bulletins and similar written statements from the accounting staff of the SEC.


 


“General Intangibles” means “general intangibles” (as defined in Article 9
of the UCC), but excluding “payment intangibles” (as defined in Article 9
of the UCC), claims under agreements of the type described under clauses (1),
(2) and (3) of the definition of “Hedging Obligations” and Intellectual
Property (as defined in the Intercreditor Agreement) and any rights thereunder.


 


“Global Note Legend” means the legend set forth in Section 2.06(g)(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 Depository or its nominee, substantially
in the form of Exhibit Al 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(b), 2.06(b)(3),
2.06(b)(4), 2.06(d) or 2.06(f) hereof.


 


“Government Securities” means direct obligations of, or obligations
guaranteed by, the United States of America (including any agency or
instrumentality thereof), and the payment for which the United States pledges
its full faith and credit.


 


“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


 


14





















 


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) each of
Chillicothe Paper Inc., Escanaba Paper Company, MeadWestvaco Maryland Inc.,
MeadWestvaco Oxford Corporation, Wickliffe Paper Company, MeadWestvaco Energy services
LLC, Upland Resources Inc., Rumford Cogeneration Inc. and Rumford Falls Power Company;
and


 


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


 


and their respective successors and
assigns, in each case, until the Subsidiary 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, interest rate collar agreements and other
agreements or arrangements designated for the purpose of fixing, hedging or
swapping interest rate risk;


 


(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.


 


“HoldCo Indenture” means the HoldCo Notes indenture, dated May
2, 2005, among NewPage Holdings Corporation and HSBC Bank USA, National
Association.


 


“HoldCo Notes” means the floating rate senior unsecured notes
issued by the Parent pursuant to the HoldCo Indenture, any exchange notes
issued in connection with any registration of such notes, and any additional
floating rate senior unsecured notes issued by the Parent as payment of
interest.


 


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


 


“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;


 


(2) evidenced by
bonds, notes, debentures or similar instruments or letters of credit (or reimbursement
agreements in respect thereof) (other than letters of credit issued in respect
of trade payables entered into in the ordinary course);


 


(3) in respect of
banker’s acceptances;


 


(4) representing
Capital Lease Obligations;


 


15





















 


(5) representing
the balance deferred and unpaid of the purchase price of any property or
services due more than six 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.


 


Notwithstanding the foregoing, in
connection with the purchase by the Company or any Restricted Subsidiary of any
business, the terra “Indebtedness” will exclude post-closing payment
adjustments to which the seller may become entitled to the extent such payment
is determined by a final closing balance sheet or such payment depends on the
performance of such business after the closing; provided, however, that at the time of closing, the
amount of any such payment is not determinable and, to the extent such payment
thereafter becomes fixed and determined, the amount is paid within 30 days
thereafter.


 


“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 $350,000,000 aggregate principal
amount of Notes issued under this Indenture on the date hereof.


 


“Initial Purchasers” means Goldman, Sachs & Co., UBS
Securities LLC, Credit Suisse First Boston LLC, JP Morgan Securities Inc. and
Lehman Brothers Inc.


 


“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.


 


16





















 


“Insurance Financing Arrangements” means any agreement between the Company or
any of its Subsidiaries with an insurance carrier or an Affiliate of such
issuance carrier providing insurance maintained by the Company or any of its
Subsidiaries in the ordinary course of business which enables the Company and
its Subsidiaries to pay any insurance premiums and applicable financing charges
due in respect of any such insurance coverage in installments over the term of
the applicable insurance policy.


 


“Intercompany Notes of Subsidiaries” means all indebtedness owing by any of the
Company’s Subsidiaries to the Company or any of the Company’s other
Subsidiaries, whether or not represented by a note or agreement.


 


“Intercreditor Agreement” means that certain intercreditor agreement,
dated as of the date of this Indenture, among the Company, NewPage Holding
Corporation, certain subsidiaries of the Company, the revolving loan collateral
agent under the ABL Facility and the Collateral Trustee, as amended,
supplemented, restated, modified, renewed or replaced (whether upon or after
termination or otherwise), in whole or in part from time to time, or any other
successor agreement and whether among the same or any other parties.


 


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


 


(1) the
consolidated interest expense of such Person and its Restricted Subsidiaries
for such period, whether paid or accrued, including, without limitation,
amortization of debt issuance costs and original issue discount, non-cash
interest payments, the interest component of any deferred payment obligations,
the interest component of all payments associated with Capital Lease
Obligations, imputed interest with respect to 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; plus


 


(2) the
consolidated interest expense of such Person and its Restricted Subsidiaries
that was capitalized during such period, whether paid or accrued; 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 Disqualified Stock of such Person or any Disqualified Stock or
preferred stock of 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.


 


“Investments” means,
with respect to any Person, all direct or indirect investments by such Person
in other Persons (including Affiliates of such Person) in the forms of loans
(including Guarantees or other obligations), advances or capital contributions
(excluding (i) commission, travel and similar advances to officers and
employees made in the ordinary course of business and (ii) extensions of credit
to customers or advances, deposits or payment to or with suppliers, lessors or
utilities or for workers’ compensation, in


 


17





















 


each case, that are incurred in the ordinary
course of business and recorded as accounts receivable, prepaid expenses or
deposits on the balance sheet of such Person prepared in accordance with GAAP),
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 Restricted
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 Section 4.07(c) 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
authorized 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.


 


“Letter of Credit” means any present and future “letter of
credit” (as defined in Article 5 of the UCC).


 


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


 


“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 such asset.


 


“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, as set
forth in the indentures, 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 and Parity Lien Debt, each
existing and future Priority Lien Representative and Parity Lien Representative
and each existing and future holder of Permitted Liens:


 


(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 Guarantor to secure any Obligations in respect of such
Series of Parity Lien Debt, whether or not upon property otherwise constituting
Shared Collateral for such 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; provided that
the holders of any future Parity Lien Debt that constitutes a “security” for
purposes of the Securities Act of 1933, as amended, will not be entitled to be
secured by any Separate Collateral;


 


(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


 


18





















 


to the ranking of Parity Liens and the
order of application of proceeds from the enforcement of Parity Liens;


 


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


 


(d)         consent to the terms of the Intercreditor
Agreement; and


 


(2)          as to any Series of Priority Lien Debt, the
written agreement of the holders of such Series of Priority Lien Debt, as set
forth in the credit agreement, indenture 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
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, whether or not upon property otherwise
constituting collateral for such Series of Priority Lien Debt, and that all
such Priority Liens will be enforceable by the Collateral Trustee for the
benefit of all holders of Priority Lien Obligations equally and ratably; provided that the holders of any future Priority Lien Debt
that constitutes a “security” for purposes of the Securities Act of 1933, as
amended, will not be entitled to be secured by any Separate Collateral;


 


(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;


 


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


 


(d)         consenting to the terms of the
Intercreditor Agreement.


 


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


 


(1) any gain (or
loss), together with any related provision for taxes on such gain (or loss),
realized in connection with: (a) any Asset Sale (without giving effect to the
$10.0 million threshold provided in the definition thereof); 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;


 


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


 


(3) any
unrealized non-cash gains or losses in respect of Hedging Obligations
(including those resulting from the application of FAS 133), to the extent that
such gains or losses are deducted in computing Net Income.


 


19





















 


“Net Proceeds” means the aggregate cash proceeds received by the
Company or any of its Restricted Subsidiaries in respect of any Asset Sale or
Casualty Event (including, without limitation, any cash received upon the sale
or other disposition of any non-cash consideration, including Designated
Non-cash Consideration, received in any Asset Sale), net of the direct costs
relating to such Asset Sale or Casualty Event, including, without limitation,
legal, accounting and investment banking fees, appraisal and insurance adjuster
fees, and sales commissions, and any relocation expenses incurred as a result
of the Asset Sale or Casualty Event, as the case may be, taxes paid or payable
as a result of the Asset Sale or Casualty Event, in each case, to the extent
applicable to such Asset Sale or Casualty Event, after taking into account,
without duplication, (1) any reserve or payment with respect to liabilities
associated with such asset or assets and retained by the Company or a
Restricted Subsidiary after such sale or other disposition thereof, including,
without limitation, severance costs, pension and other post-employment benefit
liabilities and liabilities related to environmental matters or against any
indemnification obligations associated with such transaction, (2) any reserves
for adjustment in respect of the sale price of such asset established in
accordance with GAAP, and (3) any cash escrows in connection with purchase
price adjustments, reserves or indemnities (until released).


 


“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
(a) the explicit terms provide that there is no recourse against any assets of
the Company or any of its Restricted Subsidiaries or (b) 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.


 


“Note Documents” means this Indenture, the Senior Secured Floating
Rate Note Indenture, the Senior Secured Notes and the Security Documents.


 


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


 


“Notes” has the meaning
assigned to it in the preamble to this Indenture. The Initial Notes and any
Additional Notes subsequently issued under this Indenture will be treated as a
single class for all purposes under this Indenture, including, without
limitation, waivers, amendments, redemptions and offers to purchase, 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 all interest accrued thereon
after the commencement of any Insolvency or Liquidation Proceeding at the rate,
including any applicable post-default rate, specified in the Priority Lien
Documents, 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 such Indebtedness.


 


20





















 


“Offering Circular” means the Company’s offering circular dated
April 22, 2005, relating to the initial offering of the Notes.


 


“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 or any Vice-President of such Person.


 


“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 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 that
meets the requirements of Section 13.05 hereof. The counsel may be an
employee of or counsel to the Company or any Subsidiary of the Company.


 


“Parent” means NewPage Holding Corporation, a Delaware corporation and the
direct parent entity of the Company.


 


“Parent Entity” means Parent or any other Person that, directly or
indirectly, has record or beneficial ownership of 50% or more of the Voting
Stock or 50% or more (measured by Fair Market Value) of the Capital Stock of
the Company; provided that Escanaba Timber LLC and its direct and
indirect parent entities shall not be considered to be Parent Entities within
the meaning of this definition.


 


“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
Guarantor to secure Parity Lien Obligations.


 


“Parity Lien Debt” means:


 


(1)          the Senior Secured Notes issued on the date
of the Senior Secured Note Indentures (including any related Exchange Notes)
and the related Subsidiary Guarantees and all other Obligations of the Company
or the Guarantors under the Senior Secured Note Indentures; and


 


(2)          any other Indebtedness of the Company
(including Additional Notes), which may be guaranteed by the Guarantors, that
is secured equally and ratably with the Senior Secured 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


 


21





















 


the purposes of the Senior Secured Note
Indentures 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


 


(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”).


 


“Parity Lien Documents” means, collectively, the Note Documents and
the indenture, credit agreement or other agreement governing each other Series
of Parity Lien Debt and the Security Documents (other than any Security
Documents that do not secure 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 each series of the Senior
Secured Notes, the applicable trustee for such series; 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 an 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 any business engaged in by the
Company or any of its Restricted Subsidiaries on the date of the original
issuance of the Notes and any business or other activities that are reasonably
similar, ancillary, complementary or related to, or a reasonable extension,
development or expansion of, the businesses in which the Company and its
Restricted Subsidiaries are engaged on the date of original issuance of the
Notes.


 


“Permitted Investments” means:


 


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


 


(2)          any Investment in Cash Equivalents;


 


22





















 


(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; or


 


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


 


(4) any
Investment made as a result of the receipt of non-cash consideration from (a)
an Asset Sale that was made pursuant to and in compliance with Section 4.10
hereof or (b) a sale or other disposition of assets not constituting an Asset
Sale;


 


(5) any
acquisition of assets or Capital Stock solely in exchange for the issuance of Equity
Interests (other than Disqualified Stock) of the Company or a direct or
indirect parent of the Company;


 


(6) any
Investment acquired by the Company or any of its Restricted Subsidiaries:


 


(a)
in exchange for any other Investment or accounts receivable held by the Company
or any such Restricted Subsidiary in connection with or as a result of a
bankruptcy, workout, reorganization or recapitalization of a Person or the good
faith settlement of delinquent obligations of a Person or of a litigation,
arbitration or other dispute, or


 


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


 


(7) Investments
represented by Hedging Obligations;


 


(8) loans,
Guarantees of loans, advances, and other extensions of credit to or on behalf
of current and former officers, directors, employees, and consultants of the
Company, a Restricted Subsidiary of the Company, or a direct or indirect parent
of the Company made in the ordinary course of business or for the purpose of
permitting such Persons to purchase Capital Stock of the Company or any direct
or indirect parent of the Company or in connection with any relocation costs
related to the relocation of the corporate headquarters of the Company, in an
amount not to exceed $10.0 million at any one time outstanding;


 


(9) repurchases
of Senior Secured Notes;


 


(10) any
Investment of the Company or any of its Restricted Subsidiaries existing on the
date of this Indenture and any extension, modification or renewal of such
existing Investments, to the extent not involving any additional Investment
other than as the result of the accrual or accretion of interest or original
issue discount or the issuance of pay-in-kind securities, in each case pursuant
to the terms of such Investments as in effect on the date of this Indenture;


 


(11) Guarantees
otherwise permitted by the terms of this Indenture;


 


(12) receivables
owing to the Company or any Restricted Subsidiary, prepaid expenses, and
deposits, if created, acquired or entered into in the ordinary course of
business;


 


23





















 


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


 


(14) Investments
resulting from the acquisition of a Person, otherwise permitted by this Indenture,
which Investments at the time of such acquisition were held by the acquired
Person and were not acquired in contemplation of the acquisition of such
Person;


 


(15) any
Investment in a Receivables Entity or any Investment by a Receivables Entity in
any other Person in connection with a Qualified Receivables Transaction,
including investments of funds held in accounts permitted or required by the
arrangements governing the Qualified Receivables Transaction or any related
Indebtedness; and


 


(16) other
Investments in any Person other than an Affiliate of the Company having an aggregate
Fair Market Value (measured on the date each such Investment was made and
without giving effect to subsequent changes in value), when taken together with
all other Investments made pursuant to this clause (16) that are at the time
outstanding not to exceed the greater of $50.0 million or 2.5% of Total Assets.


 


“Permitted Liens” means:


 


(1) any 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 (A) the Senior Secured
Notes to be issued on the date of this Indenture (and the related exchange
notes) and all future Parity Lien Debt that was permitted by all applicable
Secured Debt Documents to be incurred and (B) all related Parity Lien Obligations;
provided, that, notwithstanding the foregoing,
any future Parity Lien Debt that does not constitute a “security” for purposes
of the Securities Act of 1933, as amended, will be permitted to be secured by
Separate Collateral pursuant to the clause (2) even if the Liens held by the
collateral trustee securing such Indebtedness do not equally and ratably secure
the senior secured notes to be issued on the date of the senior secured note
indentures (and the related exchange notes) and any future Parity Lien Debt
that constitutes a “security” for purposes of the Securities Act of 1933, as
amended.


 


(3) Liens
securing (A) Revolving Credit Debt up to the Revolving Credit Cap and (B) all related
Revolving Credit Obligations, together with Liens on the Shared Collateral
granting limited access rights with respect to the ABL Collateral;


 


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


 


(5) Liens to
secure the performance of tenders, completion guarantees, statutory obligations,
surety or appeal bonds, bids, leases, government contracts, performance bonds
or other obligations of a like nature incurred in the ordinary course of
business;


 


(6) Liens to
secure Indebtedness (including Capital Lease Obligations) or Attributable Debt
permitted by Section 4.09(b)(6) hereof covering only the assets acquired
with or financed by such Indebtedness or in the case of real property or
fixtures, including additions and improvements, the real property on which such
assets is attached;


 


24





















 


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


 


(8) 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;


 


(9) Liens imposed
by law, such as carriers’, warehousemen’s, landlords’, mechanics’, suppliers’,
materialmen’s and repairmen’s Liens, or in favor of customs or revenue
authorities or freight forwarders or handlers to secure payment of custom
duties, in each case, incurred in the ordinary course of business;


 


(10) any state of
facts an accurate survey would disclose, public and private roads, timber cutting
and hauling contracts, timber sales contracts, prescriptive easements or
adverse possession claims, minor encumbrances, easements or reservations of, or
rights of others for, pursuant to any leases, licenses, rights-of-way or other
similar agreements or arrangements, development, air or water rights, sewers,
electric lines, telegraph and telephone lines and other utility lines,
pipelines, service lines, railroad lines, improvements and structures located
on, over or under any property, drains, drainage ditches, culverts, electric
power or gas generating or co-generation, storage and transmission facilities
and other similar purposes, zoning or other restrictions as to the use of real property,
or minor defects in title, which were not incurred to secure payment of
Indebtedness and that do not in the aggregate materially adversely affect the
value of said properties or materially impair their use in the operation of the
business of such Person;


 


(11) Liens
created for the benefit of (or to secure) the Notes (or the related Subsidiary Guarantees);


 


(12) Liens to
secure any Permitted Refinancing Indebtedness permitted to be incurred under
this Indenture (other than Revolving Credit Debt, Parity Debt or Priority Lien
Debt); provided, however, that 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 Indebtedness being refinanced
arose, could secure the original Lien (plus improvements
and accessions to, such property or proceeds or distributions thereof);


 


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


 


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


 


(15) Liens
incurred or pledges or deposits made in the ordinary course of business in connection
with workers’ compensation, unemployment insurance and other types of social security
and employee health and disability benefits, or casualty—liability insurance or
self insurance including any Lien securing letters of credit issued in the
ordinary course of business consistent with past practice in connection
therewith;


 


25





















 


(16) judgment and
attachment Liens not giving rise to an Event of Default and notices of lis pendens and associated rights related to litigation
being contested in good faith by appropriate proceedings and for which adequate
reserves have been made in conformity with GAAP;


 


(17) Liens
securing Hedging Obligations incurred pursuant to clause (b)(10) of Section 4.09;


 


(18) any
extension, renewal or replacement, in whole or in part, of any Lien described
in clauses (6), (7), (20), (21) or (22) of the definition of “Permitted Liens”;
provided that any such extension,
renewal or replacement is no more restrictive in any material respect than the
Lien so extended, renewed or replaced and does not extend to any additional
property or assets, in conformity with GAAP;


 


(19) Liens on
Receivables and Related Assets of the type specified in the definition of “Qualified
Receivables Transaction” to secure Indebtedness incurred and outstanding under clause
(b)(2) of Section 4.09;


 


(20) any interest
or title of a lessor, licensor or sublicensee under any operating lease, license
or sublicense, as applicable;


 


(21) Liens on
assets of Foreign Subsidiaries securing Indebtedness incurred pursuant to clause
(b)(17) of Section 4.09; and


 


(22) Liens in
favor of collecting or payor banks having a right of setoff, revocation, refund
or chargeback with respect to money or instruments of the Company or any
Restricted Subsidiary thereof on deposit with or in possession of such bank.


 


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


 


(1) payments to
any direct or indirect parent of the Company to permit such direct or indirect
parent to pay reasonable accounting, legal and administrative expenses of such
Person where due, in an aggregate amount for all such Persons not to exceed
$2.0 million per annum (or $5.0 million per annum following the completion of an underwritten public
offering of common stock of any such direct or indirect parent holding
company);


 


(2) payments to
Parent to permit Parent to pay reasonable accounting, legal and administrative
expenses incurred in connection with Parent’s obligations under the Hold Co
Notes and the related registration rights agreement when due, in an aggregate
amount not to exceed $1.5 million per annum; and


 


(3) for so long
as the Company is a member of a group filing a consolidated or combined tax
return with any direct or indirect parent of the Company, payments to such
direct or indirect parent 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 such direct or indirect parent required
to maintain such direct or indirect parent’s corporate 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),
taking into account any carryovers and carry backs 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 the direct or indirect


 


26





















 


parent 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 the direct or indirect
parent’s receipt of such Tax Payments or refunded to the Company.


 


“Permitted Refinancing Indebtedness” means:


 


(1) any
Indebtedness of the Company or any of its Restricted Subsidiaries (other than Disqualified
Stock) 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 Disqualified Stock and
intercompany Indebtedness); provided that:


 


(a)
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
the amount of any reasonably determined premium and defeasance costs, incurred
in connection therewith and other amounts necessary to accomplish such
refinancing);


 


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


 


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


 


(d)
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; and


 


(2) any
Disqualified Stock of the Company or any of its Restricted Subsidiaries issued
in exchange for, or the net proceeds of which are used to extend, refinance,
renew, refund, replace, defease or discharge other Indebtedness or Disqualified
Stock of the Company or any of its Restricted Subsidiaries (other than
Indebtedness or Disqualified Stock held by the Company or any of its Restricted
Subsidiaries including intercompany Indebtedness); provided that:


 


(a)
the liquidation or face value of such Permitted Refinancing Indebtedness does
not exceed the principal amount (or accreted value, if applicable) of the
Indebtedness, or the liquidation or face value of the Disqualified Stock, as
applicable, so renewed, refunded, refinanced, replaced, defeased or discharged (plus all accrued interest or dividends
thereon and the amount of any reasonably determined premium incurred in
connection therewith);


 


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


 


27





















 


(c)
such Permitted Refinancing Indebtedness is subordinated in right of payment to
the Notes on terms at least as favorable to the Holders as those contained in
the documentation governing the Indebtedness or Disqualified Stock being
renewed, refunded, refinanced, replaced, defeased or discharged; and


 


(d)
such Disqualified Stock is issued either by the Company or by the Restricted Subsidiary
who is the issuer of the Indebtedness or Disqualified Stock 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.


 


“Principal” means
Cerberus Capital Management L.P. or any Affiliate thereof, and any fund or
account managed by Cerberus Capital Management L.P. or an Affiliate thereof.


 


“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, an amount equal to
the sum of (i) the amount permitted to be borrowed on that date under clause
(1) of the definition of Permitted Debt plus
(ii) the amount permitted to be borrowed on that date under clauses (3) and
(19) of the definition of Permitted Debt plus
(iii) up to $75.0 million of additional Indebtedness otherwise permitted to be
incurred plus (iv) an amount
equal to (A) 33% times (B) the Fair Market Value of all Permitted Businesses
acquired by the Company or any of its Restricted Subsidiaries since the date of
this Indenture (measured as of the date of their respective acquisitions and
without giving effect to subsequent changes in value) reduced by the Fair
Market Value of ABL Collateral held by such businesses on the date acquired less (y) the amount of Revolving Credit
Debt outstanding on that date and less (z)
the amount of Parity Lien Debt incurred after the date of this Indentures the
net proceeds of which are used to repay Priority Lien Debt (it being understood
that, for the purposes of this provision, no assets acquired in any acquisition
will be considered to have a Fair Market Value in excess of $300.0 million
unless an opinion as to the Fair Market Value of such acquired Permitted
Businesses and such ABL Collateral has been provided by an accounting, appraisal
or investment banking firm of national standing). 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 (which may be
guaranteed by the Guarantors) under the First Lien Term Loan Agreement that was
permitted to be incurred and secured under each applicable Secured Debt
Document (or as to which the lenders under such 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)          any other Indebtedness of the Company
(which may be guaranteed by the Guarantors) that is secured 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:


 


28





















 


(a)          on or before the date on which such
Indebtedness is incurred, such Indebtedness is designated by the Company, in an
Officers’ Certificate delivered to each Secured Debt 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 an
indenture, 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 (which
may be guaranteed by the Guarantors) incurred to hedge or manage interest rate
risk with respect to Priority Lien Debt or Parity Lien Debt, or to protect the
Company against fluctuations in currency exchange rates or commodity prices;
provided that:


 


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


 


“Priority Lien Documents” means the First Lien Term Loan Agreement
and any other indenture, credit agreement or other agreement pursuant to which
any Priority Lien Debt is incurred and the related Security Documents (other
than any Security Documents that do not secure 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 First Lien Term Loan 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 for such Series of Priority Lien Debt and is
appointed as a representative of the Priority Lien 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.


 


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


 


29





















 


reasonably determines are probable based upon
specifically identifiable actions to be taken within six months of the date of
the acquisition and, in the case of each of (i), (ii) and (iii), are described,
as provided below, in an Officers’ Certificate, as if all such reductions in
costs had been effected as of the beginning of such period. Pro Forma Cost
Savings described above shall be accompanied by a certificate delivered to the
Trustee from the Company’s chief financial officer that outlines the specific
actions taken or to be taken, the net cost savings achieved or to be achieved
from each such action and that, in the case of clause (iii) above, such savings
have been determined to be probable.


 


“Private Placement Legend” means the legend set forth in Section 2.06(g)(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.


 


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


 


“Qualified Proceeds” means any of the following or any
combination of the following:


 


(1) Cash
Equivalents; and


 


(2) the Fair
Market Value of the Capital Stock of any Person engaged primarily in a Permitted
Business if, in connection with the receipt by the Company or any of its
Restricted Subsidiaries of such Capital Stock, such Person becomes a Restricted
Subsidiary or such Person is merged or consolidated into the Company or any
Restricted Subsidiary.


 


“Qualified Receivables Transaction” means any transaction or series of
transactions that may be entered into by the Company or any Restricted
Subsidiary pursuant to which the Company or any Restricted Subsidiary may sell,
convey, contribute to capital or otherwise transfer to a Receivables Entity, or
may grant a security interest in or pledge, any Receivables or interests
therein and any assets related thereto, including, without limitation, all
collateral securing such Receivables, all contracts and contract rights,
purchase orders, security interests, financing statements or other
documentation in respect of such Receivables, any Guarantees, indemnities,
warranties or other documentation in respect of such Receivables, any other
assets that are customarily transferred or in respect of which security
interests are customarily granted in connection with asset securitization
transactions involving receivables similar to such Receivables and any
collections or proceeds of any of the foregoing (collectively, the “Related
Assets”), which transfer, grant of security interest or pledge is funded in
whole or in part, directly or indirectly, by the incurrence or issuance by the
transferee or any successor transferee of Indebtedness, fractional undivided
interests, or other securities that are to receive payments from, or that
represent interests in, the cash flow derived from such Receivables and Related
Assets or interests in Receivables and Related Assets, it being understood that
a Qualified Receivables Transaction may involve:


 


(1) one or more
sequential transfers or pledges of the same Receivables and Related Assets, or
interests therein, and


 


(2) periodic
transfers or pledges of Receivables or revolving transactions in which new
Receivables and Related Assets, or interests therein, are transferred or
pledged upon collection of previously transferred or pledged Receivables and
Related Assets, or interests therein, and provided
that:


 


(a)
the Board of Directors of the Company or any Restricted Subsidiary which is
party to such Qualified Receivables Transaction shall have determined in good
faith that such


 


30





















 


Qualified Receivables Transaction is
economically fair and reasonable to the Company or such Restricted Subsidiary as
applicable, and the Receivables Entity, and


 


(b)
the financing terms, covenants, termination events and other provisions thereof
shall be market terms (as determined in good faith by the Board of Directors of
the Company or any Restricted Subsidiary which is party to such Qualified
Receivables Transaction).


 


The grant of a security interest in any
accounts receivables of the Company or any of Restricted Subsidiary to secure
Indebtedness incurred pursuant to the Credit Agreements shall not be deemed a
Qualified Receivables Transaction.


 


“Receivables” means accounts receivable (including all rights to
payment created by or arising from the sale of goods, or the rendition of
services, no matter how evidenced (including in the form of chattel paper) and
whether or not earned by performance) of the Company or any Restricted
Subsidiary, whether now existing or arising in the future.


 


“Receivables Entity” means any Person formed for the purposes of
engaging in a Qualified Receivables Transaction with the Company or a
Restricted Subsidiary which engages in no activities other than in Connection
with the financing of Receivables of the Company and Restricted Subsidiaries,
all proceeds thereof and all rights (contractual or other), collateral and
other assets relating thereto, and any business or activities incidental or
related to such business, and which is designated by the Board of Directors of
the Restricted Subsidiary that is the direct parent company of such Receivables
Entity, or, if the Receivables Entity is not a Subsidiary of the Company, by
the Board of Directors of any Restricted Subsidiary participating in such
Qualified Receivables Transaction (in each case as provided below), as a
Receivables Entity and:


 


(1) no portion of
the Indebtedness or any other obligations (contingent or otherwise) of which:


 


(a)
is guaranteed by the Company or any Restricted Subsidiary other than a Receivables
Entity (excluding any guarantees (other than Guarantees of the principal of,
and interest on, Indebtedness and Guarantees of collection on Receivables)
pursuant to Standard Securitization Undertakings);


 


(b)
is recourse to or obligates the Company or any Restricted Subsidiary (other than
a Receivables Entity) in any way other than pursuant to Standard Securitization
Undertakings; or


 


(c)
subjects any property or asset of the Company or any Restricted Subsidiary
other than a Receivables Entity, directly or indirectly, contingently or
otherwise, to the satisfaction thereof, other than pursuant to Standard
Securitization Undertakings;


 


(2) with which
neither the Company nor any Restricted Subsidiary other than a Receivables
Entity has any material contract, agreement, arrangement or understanding other
than on terms which the Company reasonably believes to be no less favorable to
the Company or such Restricted Subsidiary than those that might be obtained at
that time from Persons that are not Affiliates of the Company; and


 


(3) to which
neither the Company nor any Restricted Subsidiary has any obligation to maintain
or preserve such entity’s financial condition or cause such entity to achieve
certain levels of operating results (other than pursuant to Standard
Securitization Undertakings).


 


31





















 


Any such designation by the Board of Directors
of the applicable Restricted Subsidiary shall be evidenced to the Trustee by
filing with the Trustee a certified copy of the resolution of such Board of
Directors giving effect to such designation and an Officers’ Certificate
certifying that such designation complied with the foregoing conditions.


 


“Receivables Financing” means any transaction (including, without
limitation, any Qualified Receivables Transaction) pursuant to which the
Company or any Restricted Subsidiary may sell, convey or otherwise transfer or
grant a security interest in any Receivables or Related Assets of the type
specified in the definition of “Qualified Receivables Transaction.”


 


“Registration Rights Agreement” means the Exchange and Registration Rights
Agreement, dated as of the date of this Indenture, among the Company, the
Guarantors and the other parties named on the signature pages thereof, as such
agreement may be amended, modified or supplemented from time to time and, with
respect to any Additional Notes, one or more registration rights agreements
among the Company, the Guarantors and the other parties thereto, as such
agreement(s) may be amended, modified or supplemented from time to time,
relating to rights given by the Company to the purchasers of Additional Notes to
register such Additional Notes under the Securities Act.


 


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


 


“Regulation S Global Note” means a Regulation S Temporary Global Note
or Regulation S Permanent Global Note, as appropriate.


 


“Regulation S Permanent Global Note” means a permanent Global Note in the form
of Exhibit A1 hereto bearing the Global Note Legend and the Private Placement
Legend and deposited with or on behalf of and registered in the name of the
Depositary or its nominee, issued in a denomination equal to the outstanding
principal amount of the Regulation S Temporary Global Note upon expiration of
the Restricted Period.


 


“Regulation S Temporary Global Note” means a temporary Global Note in the form
of Exhibit A2 hereto deposited with or on behalf of and registered in the name
of the Depositary or its nominee, issued in a denomination equal to the
outstanding principal amount of the Notes initially sold in reliance on Rule
903 of Regulation S.


 


“Related Party” means:


 


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


 


(2) any trust,
corporation, partnership, limited liability company or other entity, the
beneficiaries, stockholders, partners, members, owners or Persons beneficially
holding an 80% or more controlling interest of which consist of any one or more
Principals and/or such other Persons referred to in the immediately preceding
clause (1).


 


“Required Parity Lien Debtholders” means, at any time, the holders of a
majority in aggregate principal amount of all Parity Lien Debt then
outstanding, calculated in accordance with the provisions of Section 8.2
of the Collateral Trust Agreement. For purposes of this definition, Parity Lien
Debt registered in the name of, or beneficially owned by, the Company or any
Affiliate (other than the Notes held by any Person that is an Affiliate of the
Company as of the date of this Indenture and that is regulated by any banking
or insurance authority) of the Company will be deemed not to be outstanding.


 


32





















 


“Responsible Officer” when used with respect to the Trustee,
means any officer within the corporate trust department of the Trustee (or any
successor group of the Trustee) having direct responsibility for the
administration of this Indenture and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of such person’s 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 Period” means the 40-day distribution compliance
period as defined in Regulation S.


 


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


 


“Revolving Credit Agent” means, at any time:


 


(1)          the Person serving at such time as the “Agent”
or “Administrative Agent” under the ABL Facility or any other representative
then most recently designated in accordance with the applicable provisions of
the ABL Facility, together with its successors in such capacity; and


 


(2)          in the case of any other revolving credit
Indebtedness, the trustee, agent or representative of the holders of such
revolving credit Indebtedness who maintains the transfer register for such
revolving credit Indebtedness and (a) is appointed as a Revolving Credit Agent
(for purposes related to the administration of the Security Documents) pursuant
to the agreement governing such revolving credit Indebtedness, 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.


 


“Revolving Credit Debt” means:


 


(1)          indebtedness of the Company (which may be
guaranteed by the Guarantors) under the ABL Facility that was permitted to be
incurred and secured under each applicable Secured Debt Document (or as to
which the lenders under such Credit Agreement obtained an Officers’ Certificate
at or before the time of incurrence to the effect that such Indebtedness was
permitted to be incurred and secured by all applicable Secured Debt Documents);
and


 


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


 


provided further that no
Indebtedness will be considered to be “Revolving Credit Debt” if on the date it
was incurred the aggregate principal amount of all outstanding Revolving Credit
Debt exceeds the


 


33





















 


Revolving Credit Debt Cap as of such date (unless
the lenders under the applicable Credit Facility obtained an Officers’
Certificate at or before the time of incurrence to the effect that such
Indebtedness was permitted to be incurred and secured by all applicable Secured
Debt Documents).


 


For purposes of this definition, letters of credit
may constitute “Revolving Credit Debt.” All outstanding letters of credit will
be deemed to have a principal amount equal to the maximum potential liability
of the Company and its Restricted Subsidiaries thereunder.


 


“Revolving Credit Debt Cap” means an amount equal to the amount of
Indebtedness permitted to be incurred pursuant to clauses (1) or (19) of the
definition of Permitted Debt less (A) any Indebtedness incurred under clauses
(1) or (19) of the definition of Permitted Debt that has been designated
Priority Lien Debt and (B) less any Parity Lien Debt applied to repay revolving
credit Indebtedness incurred under clauses (1) or (19) of the definition of
Permitted Debt.


 


“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.


 


“Rumford L.P.” means Rumford Cogeneration Company Limited
Partnership, a Maine limited partnership.


 


“Sale/Leaseback Transaction” means an arrangement relating to property
owned by the Company or a Restricted Subsidiary on the date of this Indenture
or thereafter acquired by the Company or a Restricted Subsidiary whereby the
Company or a Restricted Subsidiary transfers such property to a Person and the
Company or a Restricted Subsidiary leases it from such Person.


 


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


 


“SEC” means the
Securities and Exchange Commission. 


 


“Secured Debt” means, collectively, all 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.


 


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


 


(1)          the aggregate principal amount of Secured
Debt, Revolving Credit Debt and Capital Lease Obligations 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 Adjusted EBITDA for the most recent four-quarter period for which
financial information is available.


 


34





















 


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 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-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), including Pro Forma Cost Savings whether or not such Pro Forma
Cost Savings comply with Regulation S-X, as if they had occurred on the first
day of the four-quarter reference period;


 


(2)          the Consolidated Adjusted EBITDA
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 (including by adding
back the amount of any attributable Consolidated Adjusted EBITDA that was
negative);


 


(3)          the Interest Expense 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, but only to the extent that the
obligations giving rise to such Interest Expense will not be obligations of the
specified Person or any of its Restricted Subsidiaries following the Leverage
Calculation Date;


 


(4)          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-quarter
period;


 


(5)          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-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 Leverage Calculation Date had been the applicable
rate for the entire period (taking into account any Hedging Obligation applicable
to such Indebtedness if such Hedging Obligation has a remaining term as at the
Leverage Calculation Date in excess of 12 months).


 


“Secured Obligations” means, collectively, all Parity Lien
Obligations and all Priority Lien Obligations.


 


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


 


“Security Documents” means the Collateral Trust Agreement, the
Intercreditor Agreement, each Lien Sharing and Priority Confirmation, and all
security agreements, pledge agreements, collateral assignments, mortgages,
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, 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 Section 8.1 of the Collateral Trust
Agreement.


 


35





















 


“Senior Secured Floating Rate Notes” means the Floating Rate Senior Secured
Notes due 2012 issued pursuant to the Senior Secured Floating Rate Note
Indenture.


 


“Senior Secured Floating Rate Note Indenture” means the Senior Secured Floating Rate Note
Indenture, dated May 2, 2005, among NewPage Corporation, the guarantors party
thereto and HSBC Bank USA, National Association as Trustee.


 


“Senior Secured Notes” means, collectively, the Notes and the
Senior Secured Floating Rate Notes.


 


“Senior Secured Note Indentures” means, collectively, this Indenture and the
Senior Secured Floating Rate Note Indenture.


 


“Senior Subordinated Notes” means the 12.0% Senior Subordinated Notes
due 2013 issued pursuant to the Senior Subordinated Note Indenture.


 


“Senior Subordinated Note Indenture” means the Senior Subordinated Note
Indenture, dated May 2, 2005, among NewPage Corporation, the guarantors party
thereto and HSBC Bank USA, National Association.


 


“Separate Collateral” means Stock of Subsidiaries and
Intercompany Notes of Subsidiaries unless, at the relevant time of
consideration, such Intercompany Notes of Subsidiaries secure Obligations under
the ABL Facility.


 


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


 


“Series of Priority Lien Debt” means, severally, the Indebtedness
outstanding under the First Lien Term Loan 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.


 


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


 


(1)          Separate Collateral;


 


(2)          ABL Collateral;


 


(3)          any properties and assets in which the
Collateral Trustee is required to release its Liens pursuant to the provisions
of Section 4.1 of the Collateral Trust Agreement; and


 


(4)          any properties and assets that no longer
secure the Senior Secured Notes or any Obligations in respect thereof pursuant
to the provisions of Section 4.4 of the Collateral Trust Agreement;


 


provided that, in the case
of clauses (3) and (4), 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.


 


36





















 


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


 


“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.


 


“Special Interest” means all special interest then owing pursuant
to the Registration Rights Agreement.


 


“Standard Securitization Undertakings” means all representations, warranties,
covenants, indemnities, performance guarantees and servicing obligations
entered into by the Company or any Subsidiary of the Company (other than a
Receivables Entity) which are customary in connection with any Qualified
Receivables Transaction.


 


“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, 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.


 


“Stock of Subsidiaries” means all Capital Stock of, and Equity
Interests in, Subsidiaries of the Company.


 


“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); provided,
however, that
notwithstanding the foregoing, Rumford L.P. shall not constitute a Subsidiary
of the Company, unless and until the Company directly or indirectly acquires
all of the limited partner interests in Rumford L.P.


 


“Subsidiary 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.


 


“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 shown on the most recent internal balance
sheet of the Company prepared on a consolidated basis (excluding Unrestricted
Subsidiaries) in accordance with GAAP.


 


37





















 


“Treasury Rate” means, as of any redemption date, the yield to
maturity as of such redemption date of United States Treasury securities with a
constant maturity (as compiled and published in the most recent Federal Reserve
Statistical Release H.15 (519) that has become publicly available at least
two Business Days prior to the redemption date (or, if such Statistical Release
is no longer published, any publicly available source of similar market data))
most nearly equal to the period from the redemption date to May 1, 2009; provided, however, that if the period from the redemption date to May 1, 2009, is
less than one year, the weekly average yield on actually traded United States
Treasury securities adjusted to a constant maturity of one year will be used.


 


“Trustee” means HSBC Bank USA, National Association, until a successor replaces
it in accordance with the applicable provisions of this Indenture and thereafter
means the successor serving hereunder.


 


“UCC” means the
Uniform Commercial Code as in effect from time to time in the State of New York
or, when the context implies, the Uniform Commercial Code as in effect from
time to time in any other applicable jurisdiction.


 


“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;


 


(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 unless such
Guarantee or credit support is released upon its designation as an Unrestricted
Subsidiary.


 


“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.


 


38





















 


“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.


 


Section 1.02                                Other
Definitions.


 


	
  Term

  	
   

  	
  Defined

  in

  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

  	
   

  
	
  “Legal Defeasance”

  	
   

  	
  8.02

  	
   

  
	
  “Offer Amount”

  	
   

  	
  3.09

  	
   

  
	
  “Offer Period”

  	
   

  	
  3.09

  	
   

  
	
  “Paying Agent”

  	
   

  	
  2.03

  	
   

  
	
  “Payment Default”

  	
   

  	
  6.01

  	
   

  
	
  “Permitted Debt”

  	
   

  	
  4.09

  	
   

  
	
  “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 and the Subsidiary
Guarantees;


 


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


 


“indenture to be qualified” means this Indenture;


 


39





















 


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


 


“obligor” on the Notes and the Subsidiary Guarantees means the Company and the
Guarantors, respectively, and any successor obligor upon the Notes and the
Subsidiary 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 and not otherwise defined herein have the meanings so
assigned to them either in the TIA or SEC rule.


 


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


 


(7) references to
sections of or rules under the Securities Act, the Exchange Act or the TIA 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 Exhibits Al and A2 hereto. The Notes may have notations, legends or
endorsements required by law, stock exchange rule or usage to which the Company
is subject, if any. Each Note will be dated the date of its authentication. The
Notes shall be issued in denominations of $2,000 and integral multiples of
$1,000 in excess of $2,000.


 


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
Exhibits Al or A2 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 Al hereto (but
without the Global Note Legend thereon and without the “Schedule of
Exchanges


 


40





















 


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 thereof and transfers of interest therein. Any
endorsement of a Global Note to reflect the amount of any increase or decrease
in the aggregate principal amount of outstanding Notes represented thereby 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.


 


(c)                                  Temporary
Global Notes. Notes offered and sold in reliance on Regulation S will be issued
initially in the form of the Regulation S Temporary Global Note, which will be
deposited on behalf of the purchasers of the Notes represented thereby with the
Trustee, at its New York office, as custodian for the Depositary, and registered
in the name of the Depositary or the nominee of the Depositary for the accounts
of designated agents holding on behalf of Euroclear or Clearstream, duly
executed by the Company and authenticated by the Trustee as hereinafter
provided. The Restricted Period will be terminated upon the receipt by the
Trustee of:


 


(1) a written
certificate from the Depositary, together with copies of certificates from
Euroclear and Clearstream certifying that they have received certification of
non-United States beneficial ownership of 100% of the aggregate principal
amount of the Regulation S Temporary Global Note (except to the extent of any
beneficial owners thereof who acquired an interest therein during the
Restricted Period pursuant to another exemption from registration under the
Securities Act and who will take delivery of a beneficial ownership interest in
a 144A Global Note bearing a Private Placement Legend, all as contemplated by
Section 2.06(b) hereof); and


 


(2) an Officers’
Certificate from the Company.


 


Following the termination of the Restricted
Period, beneficial interests in the Regulation S Temporary Global Note will be
exchanged for beneficial interests in the Regulation S Permanent Global Note
pursuant to the Applicable Procedures. Simultaneously with the authentication
of the Regulation S Permanent Global Note, the Trustee will cancel the
Regulation S Temporary Global Note. The aggregate principal amount of the
Regulation S Temporary Global Note and the Regulation S Permanent Global Note
may from time to time be increased or decreased by adjustments made on the
records of the Trustee and the Depositary or its nominee, as the case may be,
in connection with transfers of interest as hereinafter provided.


 


(3) Euroclear and Clearstream Procedures Applicable. The
provisions of the “Operating Procedures of the Euroclear System” and “Terms and
Conditions Governing Use of Euroclear” and the “General Terms and Conditions of
Clearstream Banking” and “Customer Handbook” of Clearstream will be applicable
to transfers of beneficial interests in the Regulation S Temporary Global Note
and the Regulation S Permanent Global Note that are held by Participants
through Euroclear or Clearstream.


 


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.


 


41





















 


A Note will not be valid until
authenticated by the manual signature of the Trustee or its authenticating
agent as provided below. The signature will be conclusive evidence that the
Note has been authenticated under this Indenture.


 


The aggregate principal amount of Notes
which may be authenticated and delivered under this Indenture is unlimited.


 


The Trustee will, upon receipt of a written
order of the Company signed by at least one Officer (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 Company may, subject to Article 4
and the terms of this Indenture and applicable law, issue Additional Notes and
Exchange Notes under this Indenture. The Trustee may appoint an authenticating
agent acceptable to the Company to authenticate Notes.  Unless otherwise provided in the appointment,
an authenticating agent may authenticate Notes whenever the Trustee may do so.
Each reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent 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, and the Trustee hereby agrees to so initially act.


 


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 or Special Interest, 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
for the purpose of making payments on the Notes 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, as Paying Agent,
other than to account to the Trustee and the Company for any funds disbursed.
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


 


42





















 


held by it as Paying Agent. Upon any Event of
Default under Sections 6.01(7) and 6.01(8) hereof 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 or
cause the Registrar to 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 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:


 


(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; provided that
in no event shall the Regulation S Temporary Global Note be exchanged by the
Company for Definitive Notes prior to (A) the expiration of the Restricted
Period and (B) the receipt by the Registrar of any certificates required
pursuant to Rule 903(b)(3)(ii)(B) under the Securities Act; 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. 
None of the Company, the Trustee nor any agent of the Company or the
Trustee will have any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial interests of a Global
Note or maintaining, supervising or


 


43





















 


reviewing any records relating to such beneficial
interests. 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; provided, however, that
prior to the expiration of the Restricted Period, transfers of beneficial
interests in the Regulation S Temporary Global Note may not be made to a U.S.
Person or for the account or benefit of a U.S. Person (other than an Initial
Purchaser). 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


 


(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; provided
that in no event shall Definitive Notes be issued upon the transfer
or exchange of beneficial interests in the Regulation S Temporary Global Note
prior to (A) the expiration of the Restricted Period and (B) the receipt by the
Registrar of any certificates required pursuant to Rule 903 under the
Securities Act.


 


Upon consummation of an Exchange Offer by the
Company in accordance with Section 2.06(f) hereof, the requirements of
this Section 2.06(b)(2) shall be deemed to have been satisfied upon
receipt by the Registrar of the instructions contained in the Letter of
Transmittal delivered by the Holder of such beneficial interests in the
Restricted Global Notes. Upon satisfaction of all of the requirements for
transfer or exchange of beneficial interests in Global Notes contained in this
Indenture and the Notes or


 


44


















 


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 the following:


 


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


 


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


 


(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 exchange or transfer is effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement and the holder of the
beneficial interest to be transferred, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the applicable Letter of
Transmittal that it is not (i) a Broker-Dealer, (ii) a Person participating in
the distribution of the Exchange Notes or (iii) a Person who is an affiliate
(as defined in Rule 144) of the Company;


 


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


 


(C)
such transfer is effected by a Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement; or


 


(D)
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 certifications in item
(4) thereof;


 


45





















 


and, in each such
case set forth in this subparagraph (D), if the Registrar so requests or if the
Applicable Procedures so require, an Opinion of Counsel in form reasonably
acceptable to the Registrar to the effect that such exchange or transfer 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 (B) or (D) 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 (B) or (D) 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 of
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 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


 


(F)
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,


 


46





















 


the Trustee shall cause the aggregate principal
amount of the applicable Global Note to be reduced accordingly pursuant to
Section 2.06(h) 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
Regulation S Temporary Global Note to Definitive Notes. Notwithstanding
Sections 2.06(c)(1)(A) and (C) hereof, a beneficial interest in the
Regulation S Temporary Global Note may not be exchanged for a Definitive Note
or transferred to a Person who takes delivery thereof in the form of a
Definitive Note prior to (A) the expiration of the Restricted Period and (B) the
receipt by the Registrar of any certificates required pursuant to Rule 903(b)(3)(ii)(B)
under the Securities Act, except in the case of a transfer pursuant to an
exemption from the registration requirements of the Securities Act other than
Rule 903 or Rule 904.


 


(3) 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 exchange or transfer is effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement and the holder of such
beneficial interest, in the case of an exchange, or the transferee, in the case
of a transfer, certifies in the applicable Letter of Transmittal that it is not
(i) a Broker-Dealer, (ii) a Person participating in the distribution of the
Exchange Notes or (iii) a Person who is an affiliate (as defined in Rule 144)
of the Company;


 


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


 


(C)
such transfer is effected by a Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement; or


 


(D)
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 certifications in item (4) thereof;


 


47





















 


and, in each such case set forth in this
subparagraph (D), if the Registrar so requests or if the Applicable Procedures
so require, an Opinion of Counsel in form reasonably acceptable to the
Registrar to the effect that such exchange or transfer 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.


 


(4) 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(h) hereof, and the Company will execute and the Trustee will
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 pursuant to this Section 2.06(c)(4)
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)(4) 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 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


 


48





















 


(F)
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, increase or cause to be increased the aggregate principal
amount of, in the case of clause (A) above, the appropriate Restricted Global
Note, in the case of clause (B) above, the 144A Global Note and in the case of
clause (C) above, the Regulation S Global Note.


 


(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 exchange or transfer is effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement and the Holder, in the case
of an exchange, or the transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (i) a Broker-Dealer, (ii) a
Person participating in the distribution of the Exchange Notes or (iii) a
Person who is an affiliate (as defined in Rule 144) of the Company;


 


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


 


(C)
such transfer is effected by a Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement; or


 


(D)
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 certifications in item (4) thereof;


 


and, in each such case set forth in this
subparagraph (D), if the Registrar so requests or if the Applicable Procedures
so require, an Opinion of Counsel in form reasonably acceptable to the
Registrar to the effect that such exchange or transfer 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.


 


49





















 


(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 subparagrapbs (2)(B), (2)(D) 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 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 the following:


 


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


 


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


 


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


 


(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 exchange or transfer is
effected pursuant to the Exchange Offer in accordance with the Registration
Rights Agreement and the Holder, in the case of an exchange, or the transferee,
in the case of a transfer, certifies in the applicable Letter of Transmittal
that it is not (i) a Broker-Dealer, (ii) a Person participating in the
distribution


 


50





















 


of the Exchange
Notes or (iii) a Person who is an affiliate (as defined in Rule 144) of the
Company;


 


(B) any such transfer is effected pursuant to the
Shelf Registration Statement inaccordance with the Registration Rights
Agreement;


 


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


 


(D) 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
certifications in item (4) thereof;


 


and, in each such case set forth in this
subparagraph (D), if the Registrar so requests, an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect that such exchange or
transfer 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)                                    Exchange
Offer. Upon the occurrence of the Exchange Offer in accordance with the
Registration Rights Agreement, the Company will issue and, upon receipt of an
Authentication Order in accordance with Section 2.02 hereof and the
documents required by Section 13.04 hereof, the Trustee will authenticate:


 


(1) one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
principal amount of the beneficial interests in the Restricted Global Notes
accepted for exchange in the Exchange Offer by Persons that certify in the
applicable Letters of Transmittal that (A) they are not Broker-Dealers, (B)
they are not participating in a distribution of the Exchange Notes and (C) they
are not affiliates (as defined in Rule 144) of the Company; and


 


(2) Unrestricted
Definitive Notes in an aggregate principal amount equal to the principal amount
of the Restricted Definitive Notes accepted for exchange in the Exchange Offer
by Persons that certify in the applicable Letters of Transmittal that (A) they
are not Broker-Dealers, (B) they are not participating in a distribution of the
Exchange Notes and (C) they are not affiliates (as defined in Rule 144) of the
Company.


 


51





















 


Concurrently with the issuance of such
Notes, the Trustee will cause the aggregate principal amount of the applicable
Restricted Global Notes to be reduced accordingly, and the Company will execute
and the Trustee will authenticate and deliver to the Persons designated by the
Holders of Definitive Notes so accepted Unrestricted Definitive Notes in the
appropriate principal amount.


 


(g)                                 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:


 


“THE NOTES EVIDENCED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT
(A) BY THE INITIAL INVESTOR (1) TO A PERSON WHO THE SELLER REASONABLY BELIEVES
IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT OR (3)
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY
RULE 144 THEREUNDER (IF AVAILABLE) OR (B) BY SUBSEQUENT INVESTORS, AS SET FORTH
IN (A) ABOVE AND, IN ADDITION, TO AN INSTITUTIONAL ACCREDITED INVESTOR IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, IN
EACH CASE, IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF
THE UNITED STATES.”


 


(B)
Notwithstanding the foregoing, any Global Note or Definitive Note issued
pursuant to subparagraphs (b)(4), (c)(3), (c)(4), (d)(2), (d)(3), (e)(2),
(e)(3) or (f) 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 2.01 AND 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.


 


52





















 


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.”


 


(3) Regulation S Temporary Global Note Legend The
Regulation S Temporary Global Note will bear a Legend in substantially the
following form:


 


“THE RIGHTS ATTACHING TO THIS REGULATION S
TEMPORARY GLOBAL NOTE, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE
FOR CERTIFICATED NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN).
NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY
GLOBAL NOTE SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON.”


 


(h)                                 Cancellation
and/or Adjustment of Global Notes. At such time as all beneficial interests in
a particular Global Note have been exchanged for Definitive Notes or a
particular Global Note has been redeemed, repurchased or 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.


 


(i) 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 or the Trustee 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).


 


53





















 


(3) 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.


 


(4) 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 mailing of a
notice of redemption of the Notes to be redeemed under Section 3.02 hereof
and ending at the close of business on the day of such mailing;


 


(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;


 


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


 


(D)
to register the transfer of or to exchange a Note tendered and not withdrawn in
connection with a Change of Control Offer or an Asset Sale Offer.


 


(5) 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, premium and Special Interest, if any, 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.


 


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


 


(7) 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.


 


(8) The Trustee
shall have no obligation or duty to monitor, determine or inquire as to compliance
with any restrictions on transfer imposed under this Indenture or under
applicable law with respect to any transfer of any interest in any Note
(including any transfers between or among depositary participants or beneficial
owners of interests in any Global Note) other than to require delivery of such
certificates and other documentation or evidence as are expressly required by,
and to do so if and when expressly required by the terms of, this Indenture,
and to examine the same to determine compliance as to form with the express
requirements hereof.


 


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


 


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 of like tenor and principal amount and bearing a number not
contemporaneously outstanding if the Trustee’s requirements


 


54





















 


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. The Company may charge for its expenses in replacing
a Note, including reasonable fees and expenses of its counsel and of the
Trustee and its counsel.


 


Every replacement Note issued in accordance
with this Section 2.07 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.


 


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 Affiliate of
the Company or any Guarantor (other than Notes held by any Person that is an
Affiliate of the Company as of the date of this Indenture and that is regulated
by any banking or insurance authority), will be considered as though
not outstanding, except that for the purposes of determining whether the
Trustee will be protected in conclusively relying on any such direction, waiver
or consent, only Notes that a Responsible Officer of the Trustee knows are so
owned will be so disregarded (except to the extent that such Notes are held by
any Person that is an Affiliate of the Company as of the date of this Indenture
and such Person is regulated by any banking or insurance authority).


 


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.


 


55





















 


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 dispose of such canceled Notes (subject to the record
retention requirement of the Exchange Act) in accordance with its customary
procedures. Upon the Company’s written request, 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 or Special Interest, if any, 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.


 


Section 2.13                                CUSIP Numbers


 


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


 


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 or purchase shall occur;


 


(2) the
redemption or purchase date;


 


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


 


56





















 


(4) the
redemption or purchase price.


 


The Company may cancel any optional
redemption referenced in such Officers’ Certificate if such cancellation takes
place (1) at least 30 days in advance of the redemption date and (2) prior to a
notice of redemption being mailed to any Holder.


 


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 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 minimum amounts of $2,000 or whole multiples of $1,000 in
excess of $2,000; 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 equal to or in excess of $2,000, 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 or Purchase.


 


Subject to the provisions of
Section 3.09 hereof, at least 30 days but not more than 60 days before a
redemption or purchase date, the Company will mail or cause to be mailed, by
first class mail, a notice of redemption or purchase 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. Failure to
give notice of redemption, or any defect therein to any Holder selected for redemption
shall not impair or affect the validity of the redemption of any other Note
redeemed in accordance with the provisions of this Indenture.


 


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


 


(1) the
redemption or purchase date;


 


(2) the
redemption or purchase price;


 


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


 


57





















 


Note (unless such unredeemed or unpurchased
portion is equal to less than $2,000 in principal amount) or transferred by
book entry transfer upon cancellation of the original Note;


 


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


 


(5) that Notes
called for redemption or purchase must be surrendered to the Paying Agent to
collect the redemption or purchase price and become due on the date fixed for
redemption or purchase;


 


(6) that, unless
the Company defaults in paying the redemption or purchase price, interest and
Special Interest, if any, on Notes or portions of Notes called for redemption
or purchase to accrue on and after the redemption or purchase date;


 


(7) the paragraph
of the Notes and/or Section of this Indenture pursuant to which the Notes
called for redemption or purchase are being redeemed or purchased; 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 or Purchase.


 


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 10:00 am Eastern Time on any 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 and Special Interest, if
any, on all Notes to be redeemed or purchased on that date. The Trustee or the
Paying Agent will promptly, and in any event within two Business Days after the
redemption or purchase date, 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 and Special
Interest, if any, 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. 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.


 


58





















 


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 Company a new Note equal in principal amount to the unredeemed
or unpurchased portion of the Note surrendered, No Notes in denominations of
$2,000 or less shall be redeemed in part or purchased in part unless all of the
Notes held by the Holder are to be redeemed or purchased.


 


Section 3.07                                Optional
Redemption.


 


(a)                                  At any time prior
to May 1, 2008,
the Company may on any one or more occasions redeem up to 30% of the aggregate
principal amount of the Notes issued under this Indenture at a redemption price
of 110%, of the principal amount thereof, plus accrued and unpaid interest and
Special Interest, if any, to the redemption date, with the net cash proceeds of
one or more Equity Offerings by the Company or a contribution to the common
equity capital of the Company from the net proceeds of one or more Equity
Offerings by a direct or indirect parent of the Company; provided that:


 


(1) at least 70%
of the aggregate principal amount of the Notes originally issued under this
indenture (excluding the Notes held by the Company and its Subsidiaries)
remains outstanding immediately after the occurrence of such redemption; and


 


(2) the
redemption occurs within 90 days of the date of the closing of such Equity
Offering.


 


(b)                                 Except pursuant
to clauses (a) and (d) of this Section 3.07, the Notes will not be
redeemable at the Company’s option prior to May 1, 2009. The Company is not
prohibited by the terms of this Indenture, however, from acquiring the Notes
pursuant to an issuer tender offer, in open market transactions or otherwise,
so long as such acquisition does not otherwise violate the terms of this
Indenture.


 


(c)                                  On or after May
1, 2009, the Company may redeem all or a part of the Notes upon not less than
30 nor more than 60 days’ prior notice, at the redemption prices (expressed as
percentages of principal amount) set forth below plus accrued and unpaid
interest and Special Interest, if any, on the Notes redeemed, to the applicable
redemption date, if redeemed during the twelve-month period beginning on May 1
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

  	
   

  
	
  2009

  	
   

  	
  106.00

  	
  %

  
	
  2010

  	
   

  	
  103.00

  	
  %

  
	
  2011
  and thereafter

  	
   

  	
  100.00

  	
  %

  



 


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.


 


(d)                                 At any time prior
to May 1, 2009 the Company may also 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 100% of the
principal amount of Notes redeemed plus the
Applicable Premium as of, and accrued and unpaid interest and Special Interest,
if any, to the date of redemption (the “Redemption Date”), subject to the
rights of the Holders on the relevant record date to receive interest due on
the relevant interest payment date.


 


59





















 


(e)                                  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 (an “Asset
Sale Offer”) to all Holders to purchase all or any part (equal to $2,000 or any
integral multiple of $1,000 in excess of $2,000) of that Holder’s Notes, the
Company will follow the procedures specified below.


 


The Asset Sale Offer shall be made to all
Holders and all holders of other Indebtedness that is pari passu with the Notes 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 pari passu Indebtedness (on a pro rota 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 pursuant to Section 4.01 hereof.


 


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 and Special Interest, if any, will be paid to the
Person, in cash, 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 any Notes purchased pursuant to an Asset Sale Offer may elect
to have such Notes purchased in denominations of $2,000 or integral multiples
of $1,000 in excess of $2,000 only;


 


60





















 


(6) that Holders
electing to have Notes purchased pursuant to any Asset Sale Offer will be
required to surrender such Notes, 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 prior to the close of
business at least three Business Days preceding 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 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 pari passu
Indebtedness surrendered by Holders thereof exceeds the Offer Amount, the
Company will select the Notes and other pari passu
Indebtedness to be purchased on a pro rata basis
based on the principal amount of Notes and such other pari passu
Indebtedness surrendered (with such adjustments as may be deemed appropriate by
the Company so that only Notes in denominations of $2,000, or integral
multiples of $1,000 in excess of $2,000 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 (to the extent that such
unpurchased portion is equal to $2,000 in principal amount or an integral
multiple of $1,000 in excess of $2,000) of the Notes surrendered (or
transferred by book-entry transfer).


 


On of 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 properly tendered and not withdrawn pursuant to the
Asset Sale Offer, or if less than the Offer Amount has been tendered, all Notes
properly tendered and not withdrawn, 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 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 Holder properly tendered, and not withdrawn, 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; provided that each
new Note will be in a principal amount of $2,000 or integral multiples of
$1,000 in excess of $2,000. 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, or as soon as practicable
after, 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 and Special Interest, if any,
on the Notes on the dates and in the manner provided in the Notes Principal,


 


61





















 


premium, if any, and interest and Special
Interest, if any, 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. Such Paying Agent shall return to the Company
promptly, and in any event, no later than three Business Days following the
date of payment, any money (including accrued interest) that exceeds such
amount of principal, premium, if any, and interest paid on the Notes. The
Company will pay all Special Interest, if any, in the same manner on the dates
and in the amounts set forth in the Registration Rights Agreement. 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.


 


The Company will pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
principal at the rate equal to 1% 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 and Special Interest, if any, (without regard
to any applicable grace period) at the same rate to the extent lawful.


 


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


 


Section 4.02                                Maintenance
of Office or Agency.


 


The Company will maintain in the Borough of
Manhattan, the City of New York, an office or agency (which may be an office of
the Trustee or an affiliate of the Trustee, Registrar or co-registrar) where
Notes may be presented or surrendered for registration of transfer or for
exchange and where notices and demands to or upon the Company in respect of the
Notes and this Indenture may be served. The Company 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.


 


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 or cause the Trustee to
furnish to the Holders, within the time periods specified in the SEC’s rules
and regulations (together with extensions granted by the SEC):


 


(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


 


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(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.


 


Notwithstanding the foregoing, the
requirement to furnish current, quarterly and annual reports to Holders will be
deemed satisfied prior to the commencement to the Exchange Offer contemplated
by the Registration Rights Agreement or the effectiveness of a Shelf
Registration Statement if the information that would have been contained in
such reports is included in the registration statement relating to the Exchange
Offer and/or the Shelf Registration Statement, or any amendments thereto, and
filed with the SEC within the time periods contemplated above; provided, however, that the
financial and other information relating to the quarter ended March 31,
2005 need not be filed until May 31, 2005.


 


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 Company’s consolidated financial statements by the Company’s
certified independent accountants. In addition, following the consummation of
the Exchange Offer contemplated by the Registration Rights Agreement, 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 (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 after consummation of the
Exchange Offer contemplated by the Registration Rights Agreement, 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 the Company and the Guarantors are
not required to file with the SEC the reports required by paragraphs (a) and
(b) of this Section 4.03, they will furnish to the Holders and to
securities analysts and prospective investors, upon their request, the
information required to be delivered pursuant to Rule 144A (d)(4) under the
Securities Act.


 


Delivery of such reports, information and
documents to the Trustee pursuant to such provisions is for informational
purposes only and the Trustee’s receipt of such shall not constitute
constructive notice of any information contained therein or determinable from
information contained therein, including the Company’s compliance with the
covenants hereunder (as to which the Trustee may conclusively rely on Officers’
Certificates).


 


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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 60 days after the end of each fiscal year,
an Officers’ Certificate, one of the signers of which will be the Chief
Executive Officer or Chief Financial Officer, stating that a review of the
activities of the Company and its Subsidiaries during the preceding fiscal year
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 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 is not in default in the
performance or observance of any of the terms, provisions and conditions of
this Indenture (or, if a Default or Event of Default has occurred, describing
all such Defaults or Events of Default of which he or she may have knowledge
and what action the Company is taking or proposes to take with respect thereto)
and that to the best of his or her knowledge no event has occurred and remains
in existence by reason of which payments on account of the principal of or
interest, if any, on the Notes is prohibited or if such event has occurred, a
description of the event and what action the Company is taking or proposes to
take with respect thereto.


 


(b)                                 So long as not
contrary to the then current recommendations of the American Institute of
Certified Public Accountants, the year-end financial statements delivered
pursuant to Section 4.03 above shall be accompanied by a written statement
of the Company’s independent registered public accountants (who shall be a firm
of established national reputation) that in making the examination necessary
for certification of such financial statements, nothing has come to their
attention that would lead them to believe that the Company has violated any
provisions of Article 4 or Article 5 hereof or, if any such violation
has occurred, specifying the nature and period of existence thereof, it being
understood that such accountants shall not be liable directly or indirectly to
any Person for any failure to obtain knowledge of any such violation.


 


(c)                                  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.


 


Section 4.06                                Stay,
Extension and Usury Laws.


 


The Company and each of the Guarantors
covenant (to the extent that it may lawfully do so) that they 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 they may lawfully do so) hereby expressly waives all benefit or advantage
of any such law, and covenants that they 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.


 


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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 or distributions
payable in Equity Interests (other than Disqualified Stock) 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;


 


(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 Subsidiary Guarantee
(excluding any intercompany Indebtedness between or among the Company and any
of its Restricted Subsidiaries), except (i) a payment of interest or principal
at the Stated Maturity thereof or (ii) the purchase, repurchase or other
acquisition of any such Indebtedness in anticipation of satisfying a sinking
fund obligation, principal installment or final maturity, in each case, due
within one year of the date of such purchase, repurchase or other acquisition;
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 proforma effect
thereto as if such Restricted Payment had been made at the beginning of the
applicable four-quarter period, have been permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Consolidated 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), (5), (6), (7), (8), (1)) and (13) 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 internal financial statements are available at
the time of such Restricted Payment (or, if such Consolidated Net Income for
such period is a deficit, less 100% of such deficit); plus


 


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(B)
100% of the aggregate Qualified Proceeds and 100% of the Fair Market Value of
property other than cash, 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 and other than Excluded Contributions); plus


 


(C)
to the extent that any Restricted Investment is sold for cash, is otherwise
disposed of or is repurchased, redeemed, liquidated or repaid, 100% of the
aggregate amount so received in cash and the Fair Market Value of other
property so received subsequent to the date of this Indenture (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 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)
50% of any dividends received by the Company or a 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) 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 and shall not constitute Excluded
Contributions;


 


(3) the purchase,
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 Subsidiary 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) so long as no
Default has occurred and is continuing or would be caused thereby, there
purchase, 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, consultant or employee of the Company
or any of its Restricted Subsidiaries, and any


 


66





















 


dividend payment or other distribution by
the Company or a Restricted Subsidiary to a direct or indirect parent holding
company of the Company utilized for the repurchase, redemption or other
acquisition or retirement for value of any Equity Interests of such direct or
indirect parent holding company held by any current or former officer,
director, employee or consultant of the Company or any of its Restricted
Subsidiaries or, in each case to the extent applicable, their respective
estates, spouses, former spouses or family members or other permitted
transferees, in each case, pursuant to any equity subscription agreement, stock
option agreement., shareholders’ agreement or similar agreement or benefit plan
of any kind; provided that the
aggregate price paid for all such repurchased, redeemed, acquired or retired
Equity Interests may not exceed $5.0 million in any calendar year period (with
unused amounts in any immediately preceding calendar year being Carried over to
the two immediately succeeding calendar years subject to a maximum carry-over
amount of $10.0 million in any calendar year); provided
further that such amount in any calendar year may be increased by an
amount not to exceed:


 


(A)
the cash proceeds from the sale of Equity Interests of the Company and, to the
extent contributed to the Company as common equity capital, Equity Interests of
any of the Company’s direct or indirect parent entities, in each case to
officers, directors, employees or consultants of the Company, any of its
Subsidiaries or any of its direct or indirect parent entities that occurs after
the date of this Indenture, to the extent the cash proceeds from the sale of
such Equity Interests have not otherwise been applied to the payment of
Restricted Payments by virtue of clause (3)(B) of Section 4.07(a) hereof; provided that such cash proceeds shall not constitute
Excluded Contributions, plus


 


(B)
the cash proceeds of key man life insurance policies received by the Company
and its Restricted Subsidiaries after the date of this Indenture less


 


(C)
the amount of any Restricted Payments previously made pursuant to clauses (A)
and (B) of this clause (5);


 


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


 


(7) so long as no
Default has occurred and is continuing or would be caused thereby, the declaration
and payment of regularly scheduled or accrued dividends to holders of any class
or series of Disqualified Stock of the Company or any Restricted Subsidiary of
the Company issued on or after the date of this Indenture in accordance with
the Consolidated Coverage Ratio test described in Section 4.09(a) hereof;


 


(8) Permitted
Payments to Parent;


 


(9) so long as no
Default has occurred and is continuing or would be caused thereby, upon the
occurrence of a Change of Control and within 60 days after completion of a
Change of Control Offer pursuant to Section 4.15 hereof (including the
purchase of all Notes tendered), any purchase or redemption of Indebtedness of
the Company that is contractually subordinated to the Notes or any Subsidiary
Guarantee that is required to be repurchased or redeemed pursuant to the terms
thereof as a result of such Change of Control, at a purchase price not greater
than 101% of the outstanding principal amount thereof (plus accrued
and unpaid interest); provided that,
prior to such repayment or repurchase, the Company shall have made the Change
of Control Offer with respect to the Notes as required by Section 4.15
hereof, and the Company shall have repurchased


 


67





















 


all Notes validly tendered for payment and
not withdrawn in connection with such Change of Control Offer;


 


(10) so long as
no Default has occurred and is continuing or would be caused thereby, after the
completion of an Asset Sale Offer pursuant to Section 4.10 hereof (including
the purchase of all Notes tendered), any purchase or redemption of Indebtedness
of the Company that is contractually subordinated to the Notes or any
Subsidiary Guarantee that is required to be repurchased or redeemed pursuant to
the terms thereof as a result of such Asset Sale, at a purchase price not
greater than 100% of the outstanding principal amount thereof (plus accrued
and unpaid interest) with any Excess Proceeds that remain after consummation of
an Asset Sale Offer; provided that,
prior to such repayment or repurchase, the Company shall have made the Asset
Sale Offer with respect to the Notes as required by Section 4.10 hereof,
and the Company shall have repurchased all Notes validly tendered for payment
and not withdrawn in connection with such Asset Sale Offer;


 


(11) any payment
solely to reimburse the Principal or its Affiliates for actual out-of-pocket
expenses, not including fees paid directly or indirectly to Principal or its
Affiliates, in connection with the Acquisition or for the provision of third
party services to the Company and its Subsidiaries;


 


(12) the
redemption, repurchase or other acquisition for value of any common Equity
Interests of any Foreign Subsidiary of the Company that are held by a Person
that is not an Affiliate of the Company or to the extent required to satisfy
applicable laws, rules or regulations in an aggregate amount since the date of
this Indenture not to exceed $1.0 million; provided that the consideration for such redemption,
repurchase or other acquisition is not in excess of either (x) the Fair Market
Value of such common Equity Interests or (y) such amount required by applicable
laws, rules or regulations;


 


(13) Restricted
Payments that are made with Excluded Contributions; and


 


(14) so long as
no Default has occurred and is continuing or would be caused thereby, other
Restricted Payments in an aggregate amount since the date of this Indenture not
to exceed $25.0 million.


 


(c)                                  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. The Fair Market Value of any assets
or securities that are required to be valued by this Section 4.07 will be
determined by the Board of Directors of the Company whose resolution with
respect thereto will be delivered to the Trustee. The Board of Directors’
determination must be based upon an opinion or appraisal issued by an
accounting, appraisal or investment banking firm of national standing if the
Fair Market Value exceeds $25.0 million.


 


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:


 


68





















 


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


 


(b)                                 However, the
restrictions in Section 4.08(a) hereof will not apply to encumbrances or
restrictions existing under or by reason of:


 


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


 


(2) the Senior
Secured Note Indentures, the Senior Secured Notes and the related Guarantees,
the Senior Subordinated Note Indenture, the Senior Subordinated Notes and the
related Guarantees;


 


(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 and licenses entered into in the
ordinary course of business;


 


(6) purchase
money obligations for property acquired in the ordinary course of business 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 all or substantially all of the Capital
Stock or assets of a Restricted Subsidiary that restricts distributions by that
Restricted Subsidiary pending such 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;


 


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


 


(10) customary
limitations on the disposition or distribution of assets or property in joint
venture agreements, asset sale agreements, options, sale-leaseback agreements,
stock sale agreements, lease agreements, licenses 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;


 


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


 


(12) provisions
in agreements or instruments that prohibit the payment of dividends or the
making of other distributions with respect to any Capital Stock of a Person
other than on a pro rata basis;


 


(13) any
encumbrance or restriction existing under or by reason of Indebtedness or other
contractual requirement of a Receivables Entity or any Standard Securitization
Undertaking, in each case in connection with a Qualified Receivables
Transaction; provided that such restrictions
apply only to such Receivables Entity and Receivables and Related Assets;


 


(14) any
encumbrance or restriction contained in any Indebtedness incurred by a Foreign
Subsidiary pursuant to clause (17) of the definition of Permitted Debt that
applies only to such Foreign Subsidiary;


 


(15) any
encumbrance or restriction contained in any Indebtedness incurred by the
Company or a Guarantor subsequent to the date of this Indenture pursuant to clause
(18) of the definition of Permitted Debt; and


 


(16) restrictions
in other Indebtedness incurred in compliance with Section 4.09 hereof; provided that such restrictions, taken as a whole, are, in
the good faith judgment of the Company’s Board of Directors, no more materially
restrictive with respect to such encumbrances and restrictions than those
contained in the existing agreements referenced in clauses (1) and (2) of this
Section 4.08(b) above.


 


Section 4.09                                Incurrence
of Indebtedness and Issuance of Disqualified Stock and Preferred Stock.


 


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


 


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(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 the Guarantee thereof by the Guarantors) of
revolving credit 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) not to exceed the greater of:


 


(A)
$350.0 million less the aggregate amount of all
Net Proceeds of Asset Sales or Casualty Events applied by the Company or any of
its Restricted Subsidiaries since the date of this Indenture to repay any
revolving credit Indebtedness under a Credit Facility and effect a
corresponding commitment reduction there under pursuant to Section 4.10
hereof and less the aggregate
principal amount of all Indebtedness incurred under clause (2) of this
paragraph then outstanding, plus the
amount of any reasonable fees, underwriting discounts, premiums, prepayment
penalties and other costs and expenses incurred in connection with extending,
refinancing, renewing, replacing or refunding any Credit Facility under which
Indebtedness is incurred pursuant to this clause (1) or


 


(B)
the amount of the Borrowing Base as of the date of such incurrence;


 


(2) Indebtedness
incurred by a Receivables Entity in a Qualified Receivables Transaction that is
not recourse to the Company or any of its Restricted Subsidiaries (except for
Standard Securitization Undertakings); provided,
however, that after giving effect to arty
such incurrence, the aggregate amount of all indebtedness incurred under this
clause (2) and then outstanding does not exceed $350.0 million less:


 


(A)
the aggregate principal amount of all Indebtedness incurred under clause (1) of
this paragraph and


 


(B)
the aggregate amount of all Net Proceeds of Asset Sales or Casualty Events
applied by the Company or any of its Restricted Subsidiaries since the date of
this Indenture to repay any revolving credit Indebtedness under a Credit
Facility and effect a corresponding commitment reduction there under pursuant
to Section 4.10 hereof plus the
amount of any reasonable fees, underwriting discounts, premiums, prepayment
penalties and other costs and expenses incurred in connection with extending,
refinancing, renewing, replacing or refunding any Credit Facility or any
Indebtedness incurred pursuant to this clause (2);


 


(3) the
incurrence by the Company (and the Guarantee thereof by the Guarantors) of term
Indebtedness under Credit Facilities in an aggregate principal amount at any
one time outstanding under this clause (3) not to exceed $750.0 million less the aggregate amount of all Net Proceeds of Asset Sales or
Casualty Events applied by the Company or any of its Restricted Subsidiaries
since the date of this Indenture to repay any term Indebtedness under a Credit
Facility and effect a corresponding commitment reduction thereunder pursuant to
Section 4.10 hereof;


 


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


 


(5) the
incurrence by the Company and the Guarantors of Indebtedness represented by the
Senior Secured Notes and the Senior Subordinated Notes and their related
Guarantees to be


 


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issued on the date
hereof, the Senior Secured Note Indentures, the Senior Subordinated Note
Indenture and the related Exchange Notes and the related Guarantees to be
issued pursuant to the Registration Rights Agreement;


 


(6) the incurrence
by the Company or any of its Restricted Subsidiaries of Attributable Debt in
connection with a Sale/Leaseback Transaction or 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, development, construction, installation or
improvement of property, plant or equipment used in the business of the Company
or any of its Restricted Subsidiaries, in an aggregate principal amount at any
time outstanding, including all Permitted Refinancing Indebtedness incurred to
renew, refund, refinance, replace, defease or discharge any Indebtedness
incurred pursuant to this clause (6), not to exceed 3% of Total Assets on the
date of incurrence;


 


(7) 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 (4), (5), (6), (17), (18) or
(19) of this Section 4.09(b);


 


(8) 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 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 Subsidiary
Guarantee, in the case of a Guarantor, and


 


(B)
(i) any subsequent issuance or transfer of Equity Interests that results
in any such Indebtedness being held by a Person other than the 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 (8);


 


(9) 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 (9);


 


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


 


(11) 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;


 


(12) the
incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness
incurred in respect of Insurance Financing Arrangements and Indebtedness
incurred in respect of workers’ compensation claims, self- insurance
obligations, bankers’ acceptances, performance, completion and surety bonds,
completion guarantees and similar obligations in the ordinary course of
business;


 


(13) 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;


 


(14) the
incurrence by the Company or a Restricted Subsidiary of Indebtedness arising
from agreements of the Company or such Restricted Subsidiary providing for
indemnification, adjustment of purchase price or similar obligations, in each
case, incurred or assumed in connection with the sale or other disposition of
any business, assets or Capital Stock of the Company or any Restricted
Subsidiary of the Company, other than guarantees of Indebtedness incurred by
any Person acquiring all or any portion of such business, assets or Capital
Stock; provided that (A) the maximum
aggregate liability in respect of all such Indebtedness shall at no time exceed
the gross proceeds, whether or not cash, actually received by the Company and
its Restricted Subsidiaries in connection with such disposition and
(B) such Indebtedness is not reflected in the balance sheet of the Company
or any of its Restricted Subsidiaries (contingent obligations referred to in a
footnote to financial statements and not otherwise reflected on the balance
sheet will not be deemed to be reflected on such balance sheet for purposes of
this clause (14));


 


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


 


(16) the
incurrence of Indebtedness consisting of guarantees of loans or other
extensions of credit to or on behalf of current or former officers, directors,
employees, or consultants of the Company, any Restricted Subsidiary of the
Company, or any direct or indirect parent of the Company for the purpose of
permitting such Persons to purchase Capital Stock of the Company or any direct
or indirect parent of the Company in an amount not to exceed $10.0 million at
any one time outstanding;


 


(17) the
incurrence by a Foreign Subsidiary of additional Indebtedness in an aggregate
principal amount, including all Permitted Refinancing Indebtedness incurred to
renew, refund, refinance, replace, defease or discharge any Indebtedness
incurred pursuant to this clause (17), not to exceed $35.0 million at any time
outstanding;


 


(18) the
incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness
in connection with the acquisition of all of the Capital Stock of a Person that
becomes a


 


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Restricted Subsidiary or
all or substantially all of the assets of a Person, in each case, engaged in a
Permitted Business having an aggregate principal amount at any one time
outstanding, including all Permitted Refinancing Indebtedness incurred to
renew, refund, refinance, replace, defease or discharge any Indebtedness
incurred pursuant to this clause (18), not to exceed an amount equal to 100% of
the Net Cash Proceeds received by the Company from the issuance or sale (other
than to a Subsidiary of the Company) of its Capital Stock (other than
Disqualified Stock) or as a contribution to the equity capital of the Company
(other than as Disqualified Stock), in each case subsequent to the date of the
indenture; provided, however, that such Net Cash
Proceeds shall be excluded from clause (3)(B) of
Section 4.07(a) and shall not constitute Excluded Contributions; and


 


(19) the
incurrence by the Company or any of the Guarantors of additional Indebtedness
in an aggregate principal amount (or accreted value, as applicable) at any time
outstanding, including all Permitted Refinancing Indebtedness incurred to
renew, refund, refinance, replace, defease or discharge any Indebtedness
incurred pursuant to this clause (19), not to exceed $75.0 million.


 


(c)                                  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 Subsidiary Guarantees 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 or any such Guarantor, as applicable, solely by reason of being
unsecured or by reason of being secured on a first or junior Lien basis.


 


(d)                                 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 (19)
above, or is entitled to be incurred pursuant to Section 4.09(a) hereof,
the Company (in its sole discretion) 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 exceptions
provided by clauses (1) and (3) of Section 4.09(b). 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 or preferred stock in the form of additional shares of the
same class of Disqualified Stock or preferred stock will not be deemed to be an
incurrence of Indebtedness or an issuance of Disqualified Stock or preferred
stock for purposes of this Section 4.09; provided,
in each such case, that the amount of any such accrual, accretion or payment is
included in Interest Expense 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.


 


(e) 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


 


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(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.  For purposes of this provision (but not the
definition of Net Proceeds), each of the following will be deemed to be cash:


 


(A)      Cash
Equivalents;


 


(B)        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
Guarantee) that are assumed by the transferee of any such assets pursuant to a
customary assumption agreement that releases the Company or such Restricted
Subsidiary from further liability;


 


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


 


(D)       any
Designated Non-cash Consideration received by the Company or any Restricted
Subsidiary thereof in such Asset Sale having a Fair Market Value, taken
together with all other Designated Non-cash Consideration received pursuant to
this clause (D) that is at that time outstanding, not to exceed the
greater of (x) $50 million or (y) 2.5% of Total Assets at the time of receipt
of such Designated Non-cash Consideration, with the Fair Market Value of each
item of Designated Non-cash Consideration being measured at the time received
without giving effect to subsequent changes in value;


 


(E)         any
stock or assets of the kind referred to in clauses (4) or (6) of
Section 4.10(b); and


 


(F)         cash
held in escrow as security for any purchase price settlement, for damages in
respect of a breach of representations and warranties or certain covenants or
for payment of other contingent obligations in connection with the Asset Sale.


 


(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 at its option:


 


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


 


(2)          to
repay any Indebtedness secured by a Permitted Lien on the assets that were the
subject of such Asset Sale or Casualty Event;


 


(3)          if
such assets were sold by a Restricted Subsidiary that is not a Guarantor, to
repay any Indebtedness of such Restricted Subsidiary or any other Restricted
Subsidiary that (a) is not a Guarantor and (b) directly or indirectly
owns all of the Capital Stock of such Restricted Subsidiary;


 


(4)          to
acquire all or substantially all of the assets of, or any Capital Stock of,
another 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;


 


(5)          to
make a capital expenditure (including the rebuilding, repair, replacement or
construction of improvements to affected property with the Net Proceeds from
Casualty Events); or


 


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


 


Pending the final
application of any Net Proceeds, the Company may temporarily reduce revolving
credit borrowings or otherwise invest the Net Proceeds in any manner that is
not prohibited by this Indenture.


 


(c)                                  Any
Net Proceeds from Asset Sales or Casualty Events that are not applied or
invested as provided in Section 4.10(b) will constitute Excess
Proceeds.  When the aggregate amount of
Excess Proceeds exceeds $20.0 million, within ten days thereof, the Company
will make an Asset Sale Offer in accordance with the procedures set forth in
Section 3.09 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 in
accordance with Section 3.09 hereof 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 and Special Interest, if any, to the date of purchase and
will be payable in cash.  If any Excess
Proceeds remain after consummation of an Asset Sale Offer, the Company may use
those Excess Proceeds for any purpose not otherwise prohibited by this
Indenture.  If the aggregate principal
amount of the Notes and other 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-I 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 the provisions of 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.


 


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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


 


(2) the Company
delivers to the Trustee:


 


(A)
with respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $10.0 million, a
resolution of the Board of Directors 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 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 $25.0 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 consulting
or employment agreement or arrangements, incentive compensation plan, stock
option or stock ownership plan, employee benefit plan, severance arrangements,
officer or director indemnification agreement or any similar arrangement
entered into by the Company or any of its Restricted Subsidiaries for the
benefit of directors, officers, employees and consultants of the Company or a
direct or indirect parent of the Company and payments and transactions pursuant
thereto, including, without limitation, those payments described in the
Offering Circular under the headings “Management-Employment
Agreements/Employment Letters” and “Management—Compensation of Directors”;


 


(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 employees of the Company;


 


(5) any issuance
of Equity Interests (other than Disqualified Stock) of the Company or any
contribution to the capital of the Company (other than as Disqualified Stock);


 


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


 


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(7) any payment
solely to reimburse Principal or its Affiliates for actual out-of-pocket
expenses, not including fees paid directly or indirectly to Principal or its
Affiliates, in connection with the Acquisition or for the provision of third
party services to the Company and its Subsidiaries;


 


(8) any agreement
or arrangements as in effect on the date of this Indenture and described in the
Offering Circular under the heading “Certain Relationships and Related Parly Transactions,”
and any renewals, extensions or replacements of any such agreement or
arrangements (so long as such renewals, extensions or replacements are not
taken as a whole, materially less favorable to the Holders as determined by the
Board of Directors of the Company in its reasonable good faith judgment) and
the transactions contemplated thereby;


 


(9) loans or
advances to employees in the ordinary course of business not to exceed $10.0
million in the aggregate at any one time outstanding;


 


(10) Permitted
Payments to Parent;


 


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


 


(12) sales or
purchases of goods or services, in each case in the ordinary course of
business, on terms no less favorable to the Company or the applicable
Restricted Subsidiary than those that are actually being obtained substantially
contemporaneously in comparable transactions with Persons that are not
Affiliates of the Company, and otherwise in compliance with the terms of this
Indenture;


 


(13) transactions
effected as part of a Qualified Receivables Transaction;


 


(14) repurchases
of Senior Subordinated Notes and Senior Secured Notes if repurchased on the
same terms as offered to Persons that are not Affiliates of the Company; and


 


(15) any
Investment of the Company or any of its Restricted Subsidiaries existing on the
date of this Indenture and any extension, modification or renewal of such
existing Investments, to the extent not involving any additional Investment
other than as the result of the accrual or accretion of interest or original
issue discount or the issuance of pay-in-kind securities, in each case pursuant
to the terms of such Investments as in effect on the date of this Indenture.


 


Section 4.12                                Liens.


 


The Company will not and
will not permit any of its Restricted Subsidiaries to, create, incur, assume or
otherwise cause or suffer to exist or become effective any Lien of any kind
(other than Permitted Liens) upon any of their property or assets, now owned or
hereafter acquired.


 


Section 4.13                                Business Activities.


 


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.


 


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Section 4.14                                Corporate Existence.


 


Subject to Article 5
and Section 11.05 hereof, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect:


 


(1) its corporate
existence, and the corporate, limited liability company, partnership or other
existence of each of its Restricted Subsidiaries, in accordance with the
respective organisational documents (as the same may be amended from time to
time) of the Company or any such Restricted Subsidiary; and


 


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


 


Section 4.15                                Offer to Repurchase Upon Change of Control.


 


(a)                                  Upon
the occurrence of a Change of Control, the Company will make an offer (a “Change of Control Offer”) to each Holder to repurchase all
or any part (equal to $2,000 or an integral multiple of $1,000 in excess of
$2,000) 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 and Special Interest, if any, 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 thirty 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 or accepted for payment 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 Company, a Depositary, if appointed by the Company, or a
Paying Agent at the address specified in the notice prior to the close of
business at least three Business Days preceding the Change of Control Payment Date;


 


(6) 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 close of
business on the second Business Day preceding the Change of Control Payment
Date, a facsimile transmission or letter setting forth the name of the Holder,
the principal amount of Notes


 


79





















 


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
(to the extent that such unpurchased portion is equal to $2,000 in principal
amount or an integral multiple of $1,000 in excess of $2,000) or transferred by
book-entry transfer.


 


The Company will comply
with the requirements of Rule 14e-l 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 of Control. To the extent that the provisions of any
securities laws or regulations conflict with the provisions of this
Section 4.15 hereof, the Company will comply with the applicable
securities laws and regulations and will not be deemed to have breached its
obligations under 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 and not withdrawn
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 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 Change of Control Payment Date) mail to
each Holder of Notes properly tendered, and not withdrawn, the Change of
Control Payment for such Notes, and the Trustee will promptly authenticate and
mail (or cause to be transferred by book entry) to each Holder a new Note equal
in principal amount to any unpurchased portion of the Notes surrendered, if
any; provided that each new Note will be in
denominations of $2,000 or integral multiples of $1,000 in excess of $2,000.
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.


 


(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 this
Section 4.15 hereof 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. A Change of Control
Offer may be made in advance of a Change of Control, conditional upon such
Change of Control, if a definitive agreement is in place for the Change of
Control at the time of making of the Change of Control Offer. Notes repurchased
pursuant to a Change of Control Offer will be retired and cancelled.


 


Section 4.16                                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
for or as an inducement to any consent, waiver or amendment of any of the terms
or provisions of this Indenture or


 


80





















 


the Notes unless such
consideration is offered to be paid and is paid to all Holders that consent,
waive or agree to amend in the time frame set forth in the solicitation
documents relating to such consent, waiver or agreement.


 


Section 4.17                                No Amendment to Subordination Provisions


 


Without the consent of
the Holders of at least a majority in aggregate principal amount of the Notes
then outstanding, the Company will not amend, modify or alter the Senior
Subordinated Note Indenture in any way to:


 


(1)          increase
the rate of or change the time for payment of interest on any Senior
Subordinated Notes;


 


(2)          increase
the principal of, advance the final maturity date of or shorten the Weighted
Average Life to Maturity of any Senior Subordinated Notes;


 


(3)          alter the
redemption provisions or the price or terms at which the Company is required to
offer to purchase any Senior Subordinated Notes; or


 


(4)          amend
the provisions of Article 10 of the Senior Subordinated Note Indenture.


 


Section 4.18                                Limitation on Sale and Leaseback Transactions


 


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


 


(1)          the
Company or such Restricted Subsidiary, as applicable, would be entitled to
(a) incur Indebtedness in an amount equal to the Attributable Debt
relating to such Sale/Leaseback Transaction pursuant to Section 4.09 of
this Indenture and (b) create a Lien to secure such Attributable Debt
pursuant to Section 4.12 of this Indenture.


 


(2)          the
gross cash proceeds received by the Company or any such Restricted Subsidiary
in connection with such Sale/Leaseback Transaction are at least equal to the
Fair Market Value of the property that is the subject of that Sale/Leaseback
Transaction; and


 


(3)          the
Company or such Restricted Subsidiary applies the Net Proceeds of such
transaction in compliance with Sections 3.09 and 4.10 of this Indenture.


 


Section 4.19                                Additional Subsidiary Guarantees.


 


If the Company or any of
its Restricted Subsidiaries acquires or creates another Domestic Subsidiary
after the date of this Indenture, then the Company will cause that newly
acquired or created Domestic Subsidiary to become a Guarantor and execute a
Subsidiary Guarantee pursuant to a supplemental indenture in substantially the
form attached as Exhibit E hereto and deliver an Opinion of Counsel
satisfactory in form and substance to the Trustee within 20 Business Days of
the date on which it was acquired or created to the effect that such
supplemental indenture has been duly authorized, executed and delivered by that
Domestic Subsidiary and constitutes a valid and binding agreement of that
Domestic Subsidiary, enforceable in accordance with its terms (subject to
customary exceptions).


 


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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. The Board of
Directors of the Company may redesignate any Unrestricted Subsidiary to be a
Restricted Subsidiary if that redesignation would not cause a Default.


 


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 no longer meet the requirements for designation
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 designate
any Unrestricted Subsidiary to be a Restricted Subsidiary of the Company; 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 or the Consolidated Coverage Ratio is equal to or greater
immediately following such designation than the Consolidated Coverage Ratio
immediately preceding such designation calculated on a pro forma basis as if
such designation had occurred at the beginning of the four-quarter reference
period; and (2) no Default or Event of Default would be in existence
following such designation.


 


ARTICLE 5

SUCCESSORS


 


Section 5.01                                Merger, Consolidation, or Sale of Assets.


 


(a)                                  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:


 


(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 an entity organized or existing under the laws of
the United States, any state of the United States or the District of Columbia; provided that, in the case such Person is not a corporation,
a co-obligor of the Notes is a corporation;


 


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(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 Registration Rights Agreement pursuant
to agreements reasonably satisfactory to the Trustee;


 


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


 


(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-quarter period:


 


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


 


(B)
would have a Consolidated Coverage Ratio that is greater than the Consolidated
Coverage Ratio of the Company immediately prior to such transaction; and


 


(5) the Company
delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, in
each case stating that such consolidation, merger, sale, assignment, transfer,
conveyance or other disposition complies with this provision and that all
conditions precedent provided for herein relating to such transaction have been
complied with.


 


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


 


(b) This
Section 5.01 will not apply to:


 


(1)          a merger of the Company
with an Affiliate of the Company 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 the
principal of and interest or Special Interest, if any, 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.


 


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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, or Special Interest, if any, with
respect to 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 for 30 days after notice to the
Company by the Trustee or the Holders of at least 25% in aggregate principal
amount of the Notes, including Additional Notes, if any, then outstanding to
comply with the provisions of Sections 4.10, 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, including Additional Notes, if any, then outstanding to
comply with any of the other agreements in this Indenture or 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, 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 (or the payment of which is
guaranteed by 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), 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 principal of, or interest or premium, if any, on,
such Indebtedness prior to the expiration of the grace period provided in such
Indebtedness on the date of such default (a “Payment
Default”); or


 


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


 


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


 


(6) failure by the
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 to pay final and
non-appealable judgments entered by a court or courts of competent jurisdiction
aggregating in excess of $25.0 million (net of any amounts covered by insurance
or pursuant to which the Company is indemnified to the extent that the third
party under such agreement acknowledges its obligations thereunder), which
judgments are not paid, discharged or stayed for a period of 60 days and, in
the event such judgment is covered by insurance, an enforcement proceeding has
been commenced by any creditor upon such judgment or decree that is not
promptly stayed;


 


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(7) the occurrence of any
of the following:


 


(A) except as
permitted by this Indenture, any Security Document is held in any judicial
proceeding to be unenforceable or invalid or ceases for any reason to be in
full force or effect; 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 Shared Collateral, individually or in the aggregate, having a Fair Market
Value of not more than $25.0 million ceases to be an enforceable and perfected
second-priority Lien, subject only to Permitted Liens;


 


(B) any Parity
Lien purported to be granted under any Security Document on Shared Collateral,
individually or in the aggregate, having a Fair Market Value in excess of $25.0
million ceases to be an enforceable and perfected second-priority Lien (subject
only to Permitted Liens) for any reason other than a failure of the Collateral
Trustee or any of its agents to take any action within its control; 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) generally is not
paying 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


 


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(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 Subsidiary 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 Subsidiary Guarantee;


 


(11) the payment
of any dividend by any Parent Entity with the proceeds of an incurrence of
Indebtedness or an issuance of preferred stock that is consummated after the
date of this Indenture and on or prior to May 2, 2007 unless after giving
effect to such incurrence or issuance and the payment of such dividend the
Consolidated Group Leverage Ratio would be less than 4.5 to 1.0; and


 


(12) Parent or any
of its Subsidiaries purchases, repurchases, redeems or otherwise acquires or
retires for value any Holdco Notes other than with the proceeds of a sale of
common equity of Parent or a contribution to the common equity capital of
Parent (other than from the Company or one of its Subsidiaries).


 


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; provided that so long as any
Indebtedness permitted to be incurred pursuant to the Credit Facilities is
outstanding, such acceleration will not be effective until the earlier of
(1) the acceleration of such Indebtedness under the Credit Facilities or
(2) five Business Days after receipt by the Company of written notice of
such acceleration.


 


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 or Special Interest, 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 and Special Interest, if any, and
interest on the Notes or to enforce the performance of any provision of the
Notes or this Indenture.


 


The Trustee may maintain
a proceeding even if it does not possess any of the Notes or does not produce
any of them in the proceeding. A delay or omission by the Trustee or any Holder
in exercising


 


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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
written notice to the Trustee may on behalf of the Holders of all of the Notes
waive any existing Default or Event of Default and its consequences hereunder,
except a continuing Default or Event of Default in the payment of the principal
of, premium or Special Interest, if any, or interest on, the Notes (including
in connection with an offer to purchase); provided, however, that 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 that conflicts with law
or this Indenture that the Trustee determines may be unduly prejudicial to the rights
of other Holders 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)                                  within
such 60-day period, Holders of a majority in aggregate principal amount of the
then outstanding Notes have not given the Trustee a direction inconsistent with
such request.


 


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


 


Section 6.07                                Rights of Holders to Receive Payment.


 


Notwithstanding any other
provision of this Indenture, the right of any Holder to receive payment of
principal, premium and Special Interest, 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


 


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enforcement of any such
payment on or after such respective dates, shall not be impaired or affected
without the consent of such Holder.


 


Section 6.08                                Collection Suit by Trustee.


 


If an Event of Default
specified in Section 6.01(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 and Special Interest, 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 allowed in any judicial
proceedings relative to the Company (or any other obligor upon the Notes), its
creditors or its property and shall be entitled and empowered to collect,
receive and distribute any money or other property payable or deliverable on
any such claims and any custodian in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee, and in the
event that the Trustee shall consent to the making of such payments directly to
the Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.07
hereof. To the extent that the payment of any such compensation, expenses,
disbursements and advances of the Trustee, 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, to the extent such money is not
required to be paid to the Collateral Trustee for application in accordance
with the Collateral Trust Agreement, it shall pay out the money in the
following order:


 


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


 


Second:                     to
Holders for amounts due and unpaid on the Notes for principal, premium and
Special Interest, 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 and Special Interest, if any and interest, respectively; and


 


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


 


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


 


Section 6.11                                Undertaking for Costs.


 


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


 


ARTICLE 7

TRUSTEE


 


Section 7.01                                Duties of Trustee.


 


(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, in the case of any certificates or opinions
required to be delivered hereunder, 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.


 


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(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.


 


Section 7.02                                Rights of Trustee.


 


(a)                                  The
Trustee may conclusively rely upon any document believed by it to be genuine
and to have been signed or presented by the proper Person.  The Trustee need not investigate any fact or
matter stated in 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 of its selection 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 (other than an agent who is an
employee of the Trustee) 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.


 


(g)                                 The
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other document, but the Trustee, in its discretion,
may make such further inquiry or investigation into such facts or matters as it
may see fit, and, if the Trustee shall determine to make such further inquiry
or investigation, it shall be entitled to examine the books, records and premises
of the Company personally or by agent or attorney at the sole cost of the
Company and shall incur no liability or additional liability of any kind solely
by reason of such inquiry or investigation.


 


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


 


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


 


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


 


(k)                                  The
Trustee may execute and perform its obligations under the Collateral Trust
Agreement and the other Security Documents.


 


(l)                                     The
permissive rights of the Trustee enumerated herein shall not be construed as
duties.


 


(m)                               The
Trustee shall at no time have any responsibility or liability for or with
respect to the legality, validity or enforcement of any Collateral or any
arrangement or agreement between the Company and any Person with respect
thereto, or the perfection or priority of any security interest created in any
of the Collateral or the maintenance of any such perfection and priority, or
for or with respect to the sufficiency of the Collateral.


 


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 if it is known to the Trustee, the Trustee
will mail to Holders a notice of the Default or Event of Default within 90 days
after it occurs. Except in the case of a Default or Event of Default in payment
of principal of, premium or Special Interest, if any, or interest on, any Note,
the Trustee may withhold the notice if and so long as a


 


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committee of its
Responsible Officers in good faith determines that withholding the notice is in
the interests of the Holders.


 


Section 7.06                                Reports by Trustee to Holders.


 


(a)                                  Within
60 days after each March 15 beginning with the March 15 following the
date of this Indenture and for so long as Notes remain outstanding, the Trustee
will mail to the Holders a brief report dated as of such reporting date that
complies with TIA § 313(a) (but if no event described in TIA
§313(a) has occurred within the twelve months preceding the reporting
date, no report need be transmitted). The Trustee also 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 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
in writing when the Notes are listed on any stock exchange and of any delisting
thereof.


 


Section 7.07                                Compensation and Indemnity.


 


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


 


(b)                                 The
Company and the Guarantors, jointly and severally, will indemnify the Trustee
against any and all losses, liabilities or expenses incurred by it arising out
of or in connection with the acceptance or administration of its duties under
this Indenture, the Note Documents or the Collateral Trust Agreement including
the costs and expenses of enforcing this Indenture, the Note Documents or the
Collateral Trust Agreement 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, bad faith or willful misconduct. 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 and the Company and / or Guarantors 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.


 


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


 


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


 


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(e)                                  When
the Trustee incurs expenses or renders services after an Event of Default
specified in Section 6.01(7) or (8) 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. 
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 or national association,
the successor corporation or national association without any further act will
be the successor Trustee.


 


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 $100.0 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.


 


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 and all obligations of the
Guarantors 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 outstanding
Notes (including the Subsidiary 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
Subsidiary 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 Subsidiary
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 and Special Interest, if any, on, such
Notes when such payments are due from the trust referred to in
Section 8.04 hereof;


 


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(2) the
Company’s obligations with respect to such Notes under Article 2
concerning issuing temporary notes, registration of notes, mutilated,
destroyed, lost or stolen notes 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 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.15, 4.16, 4.17, 4.18 and
4.19 hereof and clause (4) of Section 5.01(a) hereof with
respect to the outstanding Notes on and after the date the conditions set forth
in Section 8.04 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 Subsidiary
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 Subsidiary 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(6) and Section 6.01(9) 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:


 


(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 and Special Interest, 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:


 


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(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 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 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.


 


The Collateral will be
released from the Lien securing the Notes, as provided under Section 4.4
of the Collateral Trust Agreement, upon a Legal Defeasance or Covenant
Defeasance in accordance with the provisions of this Article described
above.


 


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


 


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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 and Special Interest, 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.


 


The Trustee shall
promptly, and in any event, no later than three Business Days, pay to the
Company after request therefore, any excess money or non-callable Government
Securities held with respect to the Notes at such time in excess of amounts
required to pay any of the Company’s Obligations then owing with respect to the
Notes.


 


Any 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 or Special Interest, if any, or interest
on, any Note and remaining unclaimed for two years after such principal,
premium or Special Interest, 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 Subsidiary Guarantees will be revived and reinstated as though no
deposit had occurred pursuant to Section 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, premium or Special Interest,
if any, or interest on, any Note following this 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.


 


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ARTICLE 9


AMENDMENT,
SUPPLEMENT AND WAIVER


 


Section 9.01                                Without Consent of Holders.


 


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 Subsidiary
Guarantees without the consent of any Holder:


 


(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 Subsidiary Guarantees in the case of a merger or consolidation or
sale of all or substantially all of the Company’s or Guarantor’s assets, as
applicable;


 


(4) to make any
change that would provide any additional rights or benefits to the Holders 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 Subsidiary Guarantees or the Notes to any provision
of the “Description of Senior Secured Notes” section of the Offering
Circular, to the extent that such provision in that “Description of Senior
Secured Notes” was intended to be a verbatim recitation of a provision of this
Indenture, the Subsidiary Guarantees 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;


 


(8) to allow any
Guarantor to execute a supplemental indenture and or a Subsidiary Guarantee
with respect to the Notes;


 


(9) to make, complete
or confirm any grant of Shared 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; or


 


(10) to comply with
the rules of any applicable securities depository.


 


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 and 13.04 hereof,
the Trustee will join with the Company and 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 adversely affects its 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.


 


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Section 9.02                                With Consent of Holders.


 


Except as provided below
in this Section 9.02, the Company, the Guarantors and the Trustee may
amend or supplement this Indenture (including, without limitation,
Section 3.09, 4.10 and 4.15 hereof) and the Notes and the Subsidiary
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, premium or Special Interest, 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 Subsidiary Guarantees may be waived with the
consent of the Holders of a majority in aggregate principal amount of the then
outstanding Notes (including, without limitation, 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); provided, however,
that any amendment to, or waiver of, the provisions of Article 10 hereof
that adversely affects the right of the Holders will require the consent of the
Holders of at least 75% in aggregate principal amount of the Notes then
outstanding.


 


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
as aforesaid, and upon receipt by the Trustee of the documents described in
Sections 7.02 and 13.04 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 adversely 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 under this Section 9.02 to approve the
particular form of any proposed amendment, supplement, waiver or consent, 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 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 Subsidiary 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 alter or waive any of
the provisions with respect to the redemption of the Notes (except as provided
above with respect to Sections 3.09, 4.10 and 4.15 hereof);


 


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


 


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(4) waive a
Default or Event of Default in the payment of principal of, or premium or
Special Interest, 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
or the rights of Holders to receive payments of principal of, or interest or
premium or Special Interest, if any, on, the Notes;


 


(7) waive a
redemption payment with respect to any Note (other than a payment required by
Sections 3.09, 4.10 or 4.15 hereof);


 


(8) release any
Guarantor from any of its obligations under its Subsidiary 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
Shared Collateral from the Liens securing the Notes issued under this Indenture
will require the consent of the Holders of at least 662/3%
in aggregate principal amount of the then outstanding Notes (including, without
limitation, Additional Notes, if any) voting as a single class.


 


Section 9.03                                Compliance with Trust Indenture Act.


 


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


 


Section 9.04                                Revocation and Effect of Consents.


 


Until an amendment,
supplement or waiver becomes effective, a consent to it by a Holder is a
continuing consent by the Holder and every subsequent Holder or portion of a
Note that evidences the same debt as the consenting Holder’s Note, even if
notation of the consent is not made on any Note. However, any such Holder or
subsequent Holder may revoke the consent as to 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 shall
receive and (subject to Section 7.01 hereof) will be fully protected in
conclusively 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.


 


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 Guarantor 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 Guarantor 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 Guarantor shall be
subject and subordinate to all Priority Liens securing Priority Lien
Obligations up to the Priority Lien Cap.


 


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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 Senior Secured 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                          Release of Liens in Respect of Notes.


 


The Collateral Trustee’s
Liens upon the Shared Collateral shall no longer secure the Notes outstanding
under this Indenture or any other Obligations under this Indenture, and the
right of the Holders of the Notes and such Obligations to the benefits and
proceeds of the Collateral Trustee’s Parity Liens on the Shared 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.


 


Section 10.04                          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, premium and interest and Special Interest, if any, on the
Notes in accordance with their terms or any other obligation of the Company or
any other Guarantor;


 


(b)  affect the
relative rights of Holders of Notes as against any other creditors of the
Company or any Guarantor (other than holders of Priority Liens, Permitted 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 Sections 2.6 and 2.8 of the
Collateral Trust Agreement);


 


(d)  restrict
or prevent any Holder of Notes or any holder of 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


 


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(e) restrict or
prevent any Holder of Notes or any holder of 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 Sections 2.6 and 2.8 of the Collateral Trust Agreement.


 


Section 10.05                          Compliance with Trust Indenture Act.


 


The Company shall comply
with the provisions of TIA §314.


 


To the extent applicable,
the Company shall cause TTA §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 TTA §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.


 


Section 10.06                          Collateral Trustee.


 


(a)                                  The
Company has appointed The Bank of New York to serve as the Collateral Trustee
for the benefit of the holders of:


 


(1) the Notes;


 


(2) all other Parity Lien
Obligations outstanding from time to time; and


 


(3) all Priority Lien
Obligations outstanding from time to time.


 


(b)                                 The
Collateral Trustee (directly or through co-trustees, agents or sub-agents) will
hold, and will be entitled to enforce, all Liens on the Collateral created by
the Security Documents.


 


(c)                                  Except
as provided in the Collateral Trust Agreement or as directed by an Act of
Required Debtholders, the Collateral Trustee will not be obligated:


 


(1) to act upon
directions purported to be delivered to it by any Person;


 


(2) to foreclose
upon or otherwise enforce any Lien; or


 


(3) to take any
other action whatsoever with regard to any or all of the Security Documents,
the Liens created thereby or the Collateral.


 


Section 10.07                          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


 


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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) 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
the title insurance, in the form delivered to the collateral trustee on the
date of the Senior Secured Note Indentures on all existing real property
Collateral and with respect to real property acquired after the date of the
Senior Secured Note Indentures, maintain title insurance in form and substance
comparable to the title insurance policies in effect on the date of the Senior
Secured Note Indentures, on all such after acquired real property Collateral
insuring the Collateral Trustee’s Lien on that property, subject only to
Permitted Liens and other exceptions to title approved by the Priority Lien
Representative as long as there is Priority Lien Debt outstanding and
thereafter, the Collateral Trustee; provided that
title insurance need only be maintained on any particular parcel of real
property having a Fair Market Value of less than $10.0 million 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 properly and liability
insurance carriers. Holders of Secured Obligations, as a class, shall be named
as additional insureds, with a waiver of subrogation, 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 material change, on all
property and casualty insurance policies of the Company and the other Pledgors.


 


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ARTICLE 11

SUBSIDIARY
GUARANTEES


 


Section 11.01                          Guarantee.


 


(a)                                  Subject to this
Article 11, each of the Guarantors hereby, jointly and severally,
unconditionally guarantees to each Holder 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 and Special
Interest, if any, and interest on, the Notes will be promptly paid in full when
due, whether at maturity, by acceleration, redemption or otherwise (including
any interest, if lawful, on overdue principal of, and interest or Special
Interest, if any, on the Notes), and all other Obligations of the Company to
the Holders or the Trustee hereunder or under the Notes 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 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
Subsidiary Guarantee will not be discharged except by complete performance of
the obligations contained in the Notes and this Indenture.


 


(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 Subsidiary 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
Subsidiary 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 Subsidiary Guarantee. 
The Guarantors will


 


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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 Subsidiary 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 Subsidiary 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 Subsidiary 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 Subsidiary Guarantee not constituting a
fraudulent transfer or conveyance.


 


Section 11.03                          Execution and Delivery of
Subsidiary Guarantee.


 


To evidence its Subsidiary Guarantee set forth
in Section 11.01 hereof, each Guarantor hereby agrees that a notation of
such Subsidiary 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 Subsidiary
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
Subsidiary Guarantee.


 


If an Officer whose signature is on this
Indenture or on the Subsidiary Guarantee no longer holds that office at
the time the Trustee authenticates the Note on which a Subsidiary Guarantee is
endorsed, the Subsidiary Guarantee will be valid nevertheless. 


 


The delivery of any Note by the Trustee, after the
authentication thereof hereunder, will constitute due delivery if the
Subsidiary Guarantee set forth in this Indenture on behalf of the Guarantors.


 


In the event that the Company or any of its
Restricted Subsidiaries creates or acquires any Domestic Subsidiary after the
date of this Indenture, if required by Section 4.18 hereof, the Company
will cause such Domestic Subsidiary to comply with the provisions of Section
4.18 hereof and this Article 11, to the extent applicable.


 


Section 11.04                          Guarantors
May Consolidate, etc., on Certain Terms.


 


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:


 


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(a) 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 Subsidiary Guarantee and the Registration
Rights Agreement 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, Sections 3.09 and 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 Subsidiary 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 Subsidiary 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 Subsidiary Guarantees so issued
will in all respects have the same legal rank and benefit under this Indenture
as the Subsidiary Guarantees theretofore and thereafter issued in accordance
with the terms of this Indenture as though all of such Subsidiary 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 Subsidiary Guarantee; provided that such sale or other disposition
complies with the applicable provisions of this Indenture, including without
limitation Section 3.09 and 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 Trustee will execute any documents reasonably
required in order to evidence the release of any Guarantor from its Obligations
under its Subsidiary 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 Subsidiary 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 Subsidiary
Guarantee.


 


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Any Guarantor not released from its obligations
under its Subsidiary Guarantee as provided in this Section 11.05 will
remain liable for the full amount of principal of and interest and premium and
Special Interest, 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 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 and Special Interest, 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 (other than a Default or
Event of Default resulting from the borrowing of funds to be applied to such
deposit) 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


 


(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 provsions of
Section 7.07 hereof, that, by their terms, survive the satisfaction and
discharge of this Indenture.


 


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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 and Special Interest, 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 11.01 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 11.01 hereof; provided that if the Company has made any payment of
principal of, premium or Special Interest, 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.


 


Section 12.03                          Repayment to the Company


 


The Trustee shall promptly, and in any event, no
later than three Business Days, pay to the Company after request therefor, any
excess money or non-callable Government Securities held with respect to the
Notes at such time in excess of amounts required to pay any of the Company’s
Obligations then owing with respect to the Notes.


 


Any 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 or Special Interest, if any, or interest on, any Note and remaining
unclaimed for two years after such principal, premium or Special Interest, 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.


 


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.


 


109





















 


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:


 


If to the Company and/or any Guarantor:


 


NewPage Corporation

Courthouse Plaza, NE

Dayton, Ohio 45463

Attention: Chief Financial Officer


 


With a copy to:


 


Schulte Roth & Zabel LLP

919 Third Avenue

New York, New York 10022

Facsimile No.: (212) 593-5955

Attention: Ronald Risdon


 


If to the Trustee:

HSBC
Bank USA, National Association

452 Fifth Avenue
New
York, New York 10018
Facsimile
No.: (212) 525-1300

Attention: Corporate Trust


 


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.


 


110





















 


Section 13.03                          Communication by Holders
with Other Holders of Notes.


 


Holders may communicate pursuant to TIA
§ 312(b) with other Holders with respect to their rights under this
Indenture or the Notes. The Company, the Trustee, the Registrar and anyone else
shall have the protection of TIA § 312(c).


 


Section 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.


 


Notwithstanding the foregoing, no such Officers’
Certificate or Opinion of Counsel shall be given with respect to the
authentication and delivery of the Initial Notes.


 


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, manager, incorporator (or Person forming a limited liability
company), stockholder, agent or member 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,


 


111





















 


the
Subsidiary Guarantees or for any claim based on, in respect of, or by reason
of, such obligations or their creation. Each Holder by accepting a Note and a
Subsidiary Guarantee waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Notes and the
Subsidiary Guarantees.


 


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 SUBSIDIARY
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 11.06 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]


 


112





















 


SIGNATURES


 


	
  Dated
  as of May 2, 2005

  	
   

  
	
   

  	
  NEWPAGE
  CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Linda M. Sheffield

  	
   

  
	
   

  	
   

  	
  Name: Linda M. Sheffield

  
	
   

  	
   

  	
  Title: Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CHILLICOTHE PAPER INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Linda M. Sheffield

  	
   

  
	
   

  	
   

  	
  Name: Linda M. Sheffield

  
	
   

  	
   

  	
  Title: Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ESCANABA
  PAPER COMPANY

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Peter H. Vogel

  	
   

  
	
   

  	
   

  	
  Name: Peter H. Vogel

  
	
   

  	
   

  	
  Title: President

  
	
   

  	
   

  	
   

  
	
  LUKE

  	
  MEADWESTVACO
  MARYLAND INC. (TO BE NAMED

  PAPER COMPANY)

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Peter H. Vogel

  	
   

  
	
   

  	
   

  	
  Name: Peter H. Vogel

  
	
   

  	
   

  	
  Title: President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MEADWESTVACO
  OXFORD CORPORATION (TO BE

  NAMED RUMFORD PAPER COMPANY)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Peter H. Vogel

  	
   

  
	
   

  	
   

  	
  Name: Peter H. Vogel

  
	
   

  	
   

  	
  Title: President

  



 


Senior
Secured Fixed Rate Indenture


 





















 


	
   

  	
  WICKLIFFE
  PAPER COMPANY

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Linda M. Sheffield

  	
   

  
	
   

  	
   

  	
  Name: Linda M. Sheffield

  
	
   

  	
   

  	
  Title: Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MEADWESTVACO
  ENERGY SERVICES LLC (TO BE

  NAMED NEWPAGE ENERGY
  SERVICES LLC)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Peter H. Vogel

  	
   

  
	
   

  	
   

  	
  Name: Peter H. Vogel

  
	
   

  	
   

  	
  Title: President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  UPLAND
  RESOURCES INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Peter H. Vogel

  	
   

  
	
   

  	
   

  	
  Name: Peter H. Vogel

  
	
   

  	
   

  	
  Title: President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  RUMFORD
  COGENERATION INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Peter H. Vogel

  	
   

  
	
   

  	
   

  	
  Name: Peter H. Vogel

  
	
   

  	
   

  	
  Title: Chief Executive
  Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  RUMFORD
  FALLS POWER COMPANY

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Peter H. Vogel

  	
   

  
	
   

  	
   

  	
  Name: Peter H. Vogel

  
	
   

  	
   

  	
  Title: Chief Executive
  Officer

  



 





















 


	
   

  	
  HSBC
  BANK USA, NATIONAL ASSOCIATION,

  AS TRUSTEE

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Frank J. Godino

  	
   

  
	
   

  	
   

  	
  Name:
  Frank J. Godino

  
	
   

  	
   

  	
  Title:
  Vice President

  



 





















 


[Face of Note]


 


CUSIP/CINS                   


10% Senior Secured Notes due 2012


 


	
  No.         

  	
  $                 

  



 


NEWPAGE CORPORATION


 


promises
to pay to
[                     ]
or registered assigns,


 


the
principal sum of-
                                                                                                                                                               
DOLLARS on May 1, 2012.


 


Interest
Payment Dates: May 1 and November 1




Record
Dates: April 15 and October 15




Dated:                           , 200      


 


 


	
   

  	
  NEWPAGE
  CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


This
is one of the Notes referred to


in the within-mentioned Indenture:


 


	
  HSBC BANK USA, NATIONAL ASSOCIATION,

  as Trustee

  
	
   

  
	
   

  
	
  By:

  	
   

  	
   

  
	
  Authorized Officer

  



 


A-1





















 


[Back of Note]

10% Senior Secured Notes due 2012


 


[Insert the Global Note Legend,
if applicable pursuant to the provisions of the Indenture]




[Insert the Private Placement
Legend, if applicable pursuant to the provisions of the Indenture]


 


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


 


(1) INTEREST.  NewPage Corporation, a
Delaware corporation (the “Company”), promises to pay interest on the principal amount of this Note
at 10% per annum, from
May 2, 2005 until maturity and shall pay the Special Interest, if any,
payable pursuant to the Registration Rights Agreement referred to below.  The Company will pay interest and Special
Interest, if any, semi- annually, in arrears on May 1 and November 1
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 or Special Interest, if
any, on the Notes will accrue from the date of original issuance or, if
interest and Special Interest, if any, has already been paid, from the date it
was most recently paid; provided that if there is no
existing Default in the payment of interest and Special Interest, if any, and
if this Note is authenticated between a record date referred to on the face
hereof and the next succeeding Interest Payment Date, interest and Special
Interest, if any, shall accrue from such next succeeding Interest Payment Date;
provided further that the first
Interest Payment Date shall be November 1, 2005.  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 1%
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 and Special Interest, if any, (without regard to any
applicable grace periods) from time to time on demand at the same rate to the
extent lawful. Interest or Special Interest, if any, on the Notes 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) and Special Interest, if
any, to the Persons who are registered Holders at the close of business on the
April 15 and October 15 next preceding the Interest Payment Date,
even if such Notes are canceled after such record date and on or before such
Interest Payment Date, except as provided in Section 2.12 of the Indenture
with respect to defaulted interest.  The
Notes will be payable as to principal, premium and Special Interest, if any,
and interest at the office or agency of the Company maintained for such purpose
within the City and State of New York, or, at the option of the Company,
payment of interest and Special Interest, if any, 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 and Special Interest, if any, on, all Global Notes and all
other Notes to the extent that the Holders thereof 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, HSBC Bank USA,
National Association, 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.


 


A-2





















 


(4) INDENTURE.  The Company issued the Notes under
an Indenture dated as of May 2, 2005 (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 the
TIA for a statement of such terms. To the extent any provision of this Note
conflicts with the express provisions of the Indenture, the provisions of the
Indenture shall govern and be controlling. The Notes are unsecured obligations
of the Company. Subject to the conditions set forth in the Indenture, the
Company may issue Additional Notes.


 


(5) OPTIONAL REDEMPTION.


 


(a) Except as set forth in
subparagraphs (b) and (c) of this Paragraph 5, the Company will
not have the option to redeem the Notes prior to May 1, 2009. The Company
is not prohibited by the terms of the Indenture, however, from acquiring the
Notes pursuant to an issuer tender offer, in open market transactions or otherwise,
so long as such acquisition does not otherwise violate the terms of the
Indenture. On or after May 1, 2009, the Company will have the option to
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 and Special Interest, if any,
on the Notes redeemed to the applicable redemption date, if redeemed during the
twelve-month period beginning on May 1 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

  	
   

  
	
  2009

  	
   

  	
  106.00

  	
  %

  
	
  2010

  	
   

  	
  103.00

  	
  %

  
	
  2011 and
  thereafter

  	
   

  	
  100.00

  	
  %

  



 


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) Notwithstanding the provisions of
subparagraph (a) of this Paragraph 5, at any time prior to May 1,
2008, the Company may on any one or more occasions redeem up to 30% of the
aggregate principal amount of Notes issued under the Indenture at a redemption
price equal to 110%, of the principal amount thereof, plus accrued and unpaid
interest and Special Interest, if any to the redemption date; with the net cash
proceeds of one or more Equity Offerings by the Company or a contribution to
the common equity capital of the Company from the net proceeds of one or more
Equity Offerings by a direct or indirect parent of the Company; provided that:


 


(A) at least 70% of the aggregate principal
amount of Notes originally issued under the Indenture (excluding Notes held by
the Company and its Subsidiaries) remains outstanding immediately after the
occurrence of such redemption; and


 


(B) the redemption occurs within 90 days of
the date of the closing of such Equity Offering.


 


(c) At any time prior to May 1, 2009,
the Company may also 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 100% of the principal amount
of Notes redeemed plus the
Applicable Premium as of, and accrued and unpaid interest and


 


A-3





















 


Special Interest, if any, to the date of the
redemption (the “Redemption Date”), subject to the rights of the
Holders on the relevant record date to receive interest due on the relevant
interest payment date.


 


(6) MANDATORY
REDEMPTION.


 


The Company is not 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 $2,000 or an integral multiple of $1,000 in excess of
$2,000) 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 and Special
Interest, if any, 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 30 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 ten days of each
date on which the aggregate amount of Excess Proceeds exceeds $20.0 million,
the Company will commence an offer in accordance with Section 3.09 of the
Indenture to all Holders and all holders of other Indebtedness that is pari passu with the Notes 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 (including any Additional Notes) and such other pari passu Indebtedness 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
and Special Interest, if any, 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 (including any Additional Notes) and other pari passu Indebtedness tendered pursuant
to an Asset Sale Offer is less than the Excess Proceeds, the Company (or such
Restricted Subsidiary) may use such deficiency for any purpose not otherwise
prohibited by the Indenture. If the aggregate principal amount of Notes and
other pari passu Indebtedness
tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the
Trustee shall select the Notes and such other pari
passu Indebtedness to be purchased on a pro rata basis. Holders that are the subject of all 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 OR PURCHASE. Notice of redemption or purchase will be
mailed at least 30 days but not more than 60 days before the redemption or
purchase date to each Holder whose Notes are to be redeemed or purchased 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 $2,000 may be redeemed or purchased in part but
only in integral multiples of $1,000 in excess of $2,000, unless all of the
Notes held by a Holder are to be redeemed.


 


A-4





















 


(9) DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in
registered form without coupons in minimum denominations of $2,000 and integral
multiples of $1,000 in excess of $2,000. 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 will 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 the
mailing of a notice of redemption of Notes to be redeemed or during the period
between a record date and the next succeeding Interest Payment Date.


 


(10) PERSONS
DEEMED OWNERS.  The registered
Holder may be treated as its owner for all purposes. Only registered Holders
will have rights under the Indenture.


 


(11) AMENDMENT,
SUPPLEMENT AND WAIVER. Subject to certain exceptions, the Indenture
or the Notes or the Subsidiary
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, subject to
Section 6.04 and 6.07 of the Indenture, and any existing Default or Event
of Default or compliance with any provision of the Indenture or the Notes or
the Subsidiary Guarantees may be waived with the consent of the Holders of a
majority in aggregate principal amount of the then outstanding Notes including
Additional Notes, if any, voting as a single class.  Without the consent of any Holder, the
Indenture or the Notes or the Subsidiary 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 Subsidiary Guarantees in case of a merger or
consolidation, to make any change that would provide any additional rights or
benefits to the Holders 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 TIA,
to conform the text of the Indenture or the Notes to any provision of the “Description
of Senior Secured Notes” section of the Company’s Offering Circular dated
April 22, 2005,  relating to the initial offering of the Notes, to
the extent that such provision in that “Description of Senior Secured Notes”
was intended to be a verbatim recitation of a provision of the Indenture, the
Subsidiary Guarantees or the Notes, or to provide for the issuance of
Additional Notes in accordance with the limitations set forth in the Indenture,
or to allow any Guarantor to execute a supplemental indenture to the Indenture
and/or a Subsidiary Guarantee with respect to the Notes, or to comply with the
rules of any applicable securities depository.


 


(12) DEFAULTS.
Events of Default include: (i) default for 30 days in the
payment when due of interest on, or Special Interest, if any, with respect to,
the Notes, whether or not prohibited by the subordination provisions of the
Indenture; (ii) default in the payment when due (at maturity, upon
redemption or otherwise) of the principal of, or premium, if any, on, the Notes,
whether or not prohibited by the subordination provisions of the Indenture;
(iii) failure by the Company or any of its Restricted Subsidiaries for 30
days after notice to the Company by the Trustee or the Holders of at least 25%
in aggregate principal amount of the Notes, including Additional Notes, if any
then outstanding to comply with the provisions of Sections 4.10, 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, including
Additional Notes, if any, then outstanding to comply with any of the other
agreements in the Indenture; (v) default under certain other agreements


 


A-5





















 


relating to Indebtedness of the Company which
default results in the acceleration of such Indebtedness prior to its express
maturity; (vi) certain final judgments for the payment of money that
remain undischarged for a period of 60 days; (vii) except as permitted by
the Indenture, any Security Document is held in any judicial proceeding to be
unenforceable or invalid or ceases for any reason to be in full force and
effect, or the Company or any other Pledgor, or any Person acting on behalf of
any of them, denies or disaffirms any obligation of the Company or any other
Pledgor set forth in or arising under any Security Document; (viii) any
Parity Lien purported to be granted under any Security Document on Shared
Collateral, individually or in the aggregate, having a Fair Market Value in
excess of $25.0 million ceases to be an enforceable and perfected
second-priority Lien, subject only to Permitted Liens; and (ix) certain
events of bankruptcy or insolvency described in the Indenture with respect to
the Company or 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.


 


(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
subject to the relevant provisions of the TIA.


 


(14) NO RECOURSE AGAINST OTHERS.   A past, present
or future director, officer, employee, manager, incorporator (or Person forming
a limited liability company),
stockholder, agent or member of the Company or any of the Guarantors, as such,
will not have any liability for any obligations of the Company or the
Guarantors under the Notes, the Subsidiary Guarantees or the Indenture or for
any claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder by accepting a Note and a Subsidiary Guarantee waives and
releases all such liability. The waiver and release are part of the
consideration for the issuance of the Notes and the Subsidiary Guarantees.


 


(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) ADDITIONAL
RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES AND RESTRICTED DEFINITIVE NOTES. In
addition to the rights provided to Holders under the Indenture, Holders of
Restricted Global Notes and Restricted Definitive Notes will have all the
rights set forth in the Registration Rights Agreement dated as of May 2,
2005, among the Company, the Guarantors and the other parties named on the
signature pages thereof or, in the case of Additional Notes, Holders of
Restricted Global Notes and Restricted Definitive Notes will have the rights
set forth in one or more registration rights agreements, if any, among the
Company, the Guarantors and the other parties thereto, relating to rights given
by the Company and the Guarantors to the purchasers of any Additional Notes
(collectively, the “Registration Rights Agreement”).


 


(18) CUSIP
NUMBERS. Pursuant to a recommendation promulgated by the Committee
on Uniform Security Identification Procedures, the Company has caused CUSIP
numbers to be printed on the Notes, and 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


 


A-6





















 


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.


 


(19) GOVERNING
LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE
USED TO CONSTRUE THE INDENTURE, THIS NOTE AND THE SUBSIDIARY 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 and/or the
Registration Rights Agreement. Requests may be made to:


 


NewPage Corporation

Courthouse Plaza, NE

Dayton, OH 45463

Attention:  Chief Financial
Officer


 


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:


 


	
  Date of
  Exchange

  	
   

  	
  Amount of

  decrease in

  Principal Amount

  [at maturity] of

  this Global Note

  	
   

  	
  Amount of

  increase in

  Principal Amount

  [at maturity] of

  this Global Note

  	
   

  	
  Principal Amount

  [at maturity] of

  this Global Note

  following such

  decrease

  (or increase)

  	
   

  	
  Signature of

  authorized

  signatory of

  Trustee or

  Custodian

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


A-10





















 


	
  [Face of Regulation S
  Temporary Global Note]

  



 


CUSIP/CINS                   


 


10% Senior Secured Notes due 2012


 


	
  No.       

  	
  $              

  



 


NEWPAGE CORPORATION


 


promises
to pay to [           ]
or registered assigns,


 


	
  the principal sum of

  	
   

  	
  DOLLARS

  



on
May 1, 2013.


 


Interest
Payment Dates: May 1 and November 1




Record
Dates:  April 15 and October 15




Dated:
                   ,
200  


 


 


	
   

  	
  NEWPAGE
  CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


This
is one of the Notes referred to

in the within-mentioned Indenture:


 


	
  HSBC BANK USA, NATIONAL ASSOCIATION,

  as Trustee

  
	
   

  
	
   

  
	
  By:

  	
   

  	
   

  
	
  Authorized Officer

  



 


A2-1





















 


[Back of Regulation S Temporary Global Note]

10% Senior Secured Notes due 2012


 


THE
RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE CONDITIONS
AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES, ARE AS SPECIFIED
IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE BENEFICIAL
OWNERS OF THIS REGULATION S TEMPORARY GLOBAL NOTE SHALL BE ENTITLED TO RECEIVE
PAYMENT OF INTEREST HEREON


 


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 2.01 AND 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.


 


THE
NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A) BY THE INITIAL
INVESTOR (1) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN
OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER
THE SECURITIES ACT OR (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR
(B) BY SUBSEQUENT INVESTORS, AS SET FORTH IN (A) ABOVE AND, IN
ADDITION, TO AN INSTITUTIONAL ACCREDITED INVESTOR IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES


 


A2-2





















 


ACT,
IN EACH CASE, IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES
OF THE UNITED STATES.


 


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


 


(1) INTEREST.
NewPage Corporation, a Delaware corporation (the “Company”), promises to pay interest on the
principal amount of this Note at 10% per
annum, from May 2, 2005 until
maturity and shall pay the Special Interest, if any, payable pursuant to the
Registration Rights Agreement referred to below.  The Company will pay interest and Special
Interest, if any, semi-annually, in arrears on May 1 and November 1
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 or Special Interest, if
any, on the Notes will accrue from the date of original issuance or, if
interest and Special Interest, if any, has already been paid, from the date it
was most recently paid; provided that
if there is no existing Default
in the payment of interest, and Special interest, if any, and if this Note is
authenticated between a record date referred to on the face hereof and the next
succeeding Interest Payment Date, interest and Special Interest, if any, shall
accrue from such next succeeding Interest Payment Date; provided further that the first Interest
Payment Date shall be November 1, 2005. 
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 1%
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 and Special Interest,
if any, (without regard to any applicable grace periods) from time to time on
demand at the same rate to the extent lawful. Interest or Special Interest, if
any, on the Notes will be computed on the basis of a 360-day year of twelve 30-day months.


 


Until this Regulation S Temporary Global
Note is exchanged for one or more Regulation S Permanent Global Notes, the
Holder hereof shall not be entitled to receive payments of interest hereon;
until so exchanged in full, this Regulation S Temporary Global Note shall in
all other respects be entitled to the same benefits as other Notes under the
Indenture.


 


(2) METHOD
OF PAYMENT. The Company will pay interest on the Notes (except
defaulted interest) and Special Interest, if any, to the Persons who are
registered Holders at the close of business on the April 15 and
October 15 next preceding the Interest Payment Date, even if such Notes
are canceled after such record date and on or before such Interest Payment Date,
except as provided in Section 2.12 of the Indenture with respect to
defaulted interest. The Notes will be payable as to principal, premium and
Special Interest, if any, and interest at the office or agency of the Company
maintained for such purpose within the City and State of New York, or, at the
option of the Company, payment of interest and Special Interest, if any, 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 and Special Interest, if any, on,
all Global Notes and all other Notes to the extent that the Holders thereof
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, HSBC Bank USA, National Association,
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.


 


A2-3





















 


(4) INDENTURE.  The Company issued the Notes under
an Indenture dated as of May 2, 2005 (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 the
TIA for a statement of such terms. To the extent any provision of this Note
conflicts with the express provisions of the Indenture, the provisions of the
Indenture shall govern and be controlling. The Notes are unsecured obligations
of the Company. Subject to the conditions set forth in the Indenture, the
Company may issue Additional Notes.


 


(5) OPTIONAL
REDEMPTION.


 


(a) Except as set forth in
subparagraphs (b) and (c) of this Paragraph 5, the Company will not
have the option to redeem the Notes prior to May 1, 2009. The Company is
not prohibited by the terms of the Indenture, however, from acquiring the Notes
pursuant to an issuer tender offer, in open market transactions or otherwise,
so long as such acquisition does not otherwise violate the terms of the
Indenture. On or after May 1, 2009, the Company will have the option to
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 and Special Interest, if any,
on the Notes redeemed to the applicable redemption date, if redeemed during the
twelve-month period beginning on May 1 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

  	
   

  
	
  2009

  	
   

  	
  106.00

  	
  %

  
	
  2010

  	
   

  	
  103.00

  	
  %

  
	
  2011 and
  thereafter

  	
   

  	
  100.00

  	
  %

  



 


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) Notwithstanding the provisions of
subparagraph (a) of this Paragraph 5, at any time prior to May 1,
2008, the Company may on any one or more occasions redeem up to 30% of the
aggregate principal amount of Notes issued under the Indenture at a redemption
price equal to 110%, of the principal amount thereof, plus accrued and unpaid
interest and Special Interest, if any to the redemption date; with the net cash
proceeds of one or more Equity Offerings by the Company or a contribution to
the common equity capital of the Company from the net proceeds of one or more
Equity Offerings by a direct or indirect parent of the Company; provided that:


 


(A) at least 70% of the aggregate principal
amount of Notes originally issued under the Indenture (excluding Notes held by
the Company and its Subsidiaries) remains outstanding immediately after the
occurrence of such redemption; and


 


(B) the redemption occurs within 90 days of
the date of the closing of such Equity Offering.


 


(c) At any time prior to May 1, 2009,
the Company may also 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 100% of the principal amount
of Notes redeemed plus the
Applicable Premium as of, and accrued and unpaid interest and


 


A2-4





















 


Special Interest, if any, to the date of the
redemption (the “Redemption Date”), subject to the rights of the
Holders on the relevant record date to receive interest due on the relevant
interest payment date


 


(6) MANDATORY REDEMPTION.


 


The Company is not 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 $2,000 or an integral multiple of $1,000 in excess of
$2,000) 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 and Special
Interest, if any, 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 30 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 ten days of each
date on which the aggregate amount of Excess Proceeds exceeds $20.0 million,
the Company will commence an offer in accordance with Section 3.09 of the
Indenture to all Holders and all holders of other Indebtedness that is pari passu with the Notes 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 (including any Additional Notes) and such other pari passu Indebtedness 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
and Special Interest, if any, 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 (including any Additional Notes) and other pari passu Indebtedness tendered pursuant
to an Asset Sale Offer is less than the Excess Proceeds, the Company (or such
Restricted Subsidiary) may use such deficiency for any purpose not otherwise
prohibited by the Indenture. If the aggregate principal amount of Notes and
other pari passu Indebtedness
tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the
Trustee shall select the Notes and such other pari
passu Indebtedness to be purchased on a pro rata basis. Holders 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 OR PURCHASE. Notice of redemption or purchase will be
mailed at least 30 days but not more than 60 days before the redemption or
purchase date to each Holder whose Notes are to be redeemed or purchased 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 $2,000 may be redeemed or
purchased in part but only in integral multiples of $1,000 in excess of $2,000,
unless all of the Notes held by a Holder are to be redeemed.


 


A2-5





















 


(9) DENOMINATIONS,
TRANSFER, EXCHANGE. The Notes are in registered form without coupons
in minimum denominations of $2,000 and integral multiples of $1,000 in excess
of $2,000. 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 will 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 the mailing of a notice of redemption of Notes to be redeemed or
during the period between a record date and the next succeeding Interest
Payment Date.


 


This Regulation S Temporary Global Note is
exchangeable in whole or in part for one or more Global Notes only (i) on
or after the termination of the 40-day distribution compliance period (as
defined in Regulation S) and (ii) upon presentation of certificates
(accompanied by an Opinion of Counsel, if applicable) required by
Article 2 of the Indenture. Upon exchange of this Regulation S Temporary
Global Note for one or more Global Notes, the Trustee shall cancel this
Regulation S Temporary Global Note.


 


(10) PERSONS DEEMED OWNERS.  The registered Holder may be treated as its
owner for all purposes. Only registered Holders will have rights under the
Indenture.


 


(11) AMENDMENT, SUPPLEMENT AND
WAIVER. Subject to certain exceptions, the Indenture or the Notes or
the Subsidiary 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,
subject to Section 6.04 and 6.07 of the Indenture, and any existing
Default or Event of Default or compliance with any provision of the Indenture
or the Notes or the Subsidiary Guarantees may be waived with the consent of the
Holders of a majority in aggregate principal amount of the then outstanding
Notes including Additional Notes, if any, voting as a single class.  Without the consent of any Holder, the
Indenture or the Notes or the Subsidiary 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 Subsidiary Guarantees in case of a merger or
consolidation, to make any change that would provide any additional rights or
benefits to the Holders 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
TIA, to conform the text of the Indenture or the Notes to any provision of the “Description
of Senior Secured Notes” section of the Company’s Offering Circular dated
April 22, 2005, relating to the initial offering of the Notes, to the extent
that such provision in that “Description of Senior Secured Notes” was intended
to be a verbatim recitation of a provision of the Indenture, the Subsidiary
Guarantees or the Notes, or to provide for the issuance of Additional Notes in
accordance with the limitations set forth in the Indenture, or to allow any
Guarantor to execute a supplemental indenture to the Indenture and/or a
Subsidiary Guarantee with respect to the Notes, or to comply with the
rules of any applicable securities depository.


 


(12) DEFAULTS. Events of Default include:
(i) default for 30 days in the payment when due of interest on, or Special
Interest, if any, with respect to, the Notes, whether or not prohibited by the
subordination provisions of the Indenture; (ii) default in the payment
when due (at maturity, upon redemption or otherwise) of the principal of, or
premium, if any, on, the Notes, whether or not prohibited by the subordination
provisions of the Indenture; (iii) failure by the


 


A2-6





















 


Company or any of its Restricted Subsidiaries for
30 days after notice to the Company by the Trustee or the Holders of at least
25% in aggregate principal amount of the Notes, including Additional Notes, if
any, then outstanding to comply with the provisions of Sections 4.10, 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,
including Additional Notes, if any, then outstanding to comply with any of the
other agreements in the Indenture; (v) default under certain other
agreements relating to Indebtedness of the Company which default results in the
acceleration of such Indebtedness prior to its express maturity; (vi) certain
final judgments for the payment of money that remain undischarged for a period
of 60 days; (vii) except as permitted by the Indenture, any Security
Document is held in any judicial proceeding to be unenforceable or invalid or
ceases for any reason to be in full force and effect, or the Company or any
other Pledgor, or any Person acting on behalf of any of them, denies or
disaffirms any obligation of the Company or any other Pledgor set forth in or
arising under any Security Document; (viii) any Parity Lien purported to
be granted under any Security Document on Shared Collateral, individually or in
the aggregate, having a Fair Market Value in excess of $25.0 million ceases to
be an enforceable and perfected second-priority Lien, subject only to Permitted
Liens; and (ix) certain events of bankruptcy or insolvency described in
the Indenture with respect to the Company or 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.


 


(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 subject to the relevant provisions of the TIA.


 


(14) NO RECOURSE AGAINST OTHERS.
A past, present or future director, officer, employee, manager, incorporator
(or Person forming a limited liability company), stockholder, agent or member
of the Company or any of the Guarantors, as such, will not have any liability
for any obligations of the Company or the Guarantors under the Notes, the
Subsidiary Guarantees or the Indenture or for any claim based on, in respect
of, or by reason of, such obligations or their creation. Each Holder by
accepting a Note and a Subsidiary Guarantee waives and releases all such
liability. The waiver and release are part of the consideration for the
issuance of the Notes and the Subsidiary Guarantees.


 


(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) ADDITIONAL RIGHTS OF
HOLDERS.  In addition to the
rights provided to Holders under the Indenture, Holders of this Regulation S
Temporary Global Note will have all the rights set forth in the Registration
Rights Agreement dated as of May 2, 2005, among the Company, the
Guarantors and the other parties named on the signature pages thereof or,
in the case of Additional Notes, Holders thereof will have the rights set forth
in one or more registration rights agreements, if any, among the Company, the
Guarantors and the other parties thereto, relating to rights given by the
Company and the Guarantors to the purchasers of any Additional Notes
(collectively, the “Registration Rights Agreement”).


 


A2-7





















 


(18) CUSIP
NUMBERS. Pursuant to a recommendation promulgated by the Committee
on Uniform Security Identification Procedures, the Company has caused CUSIP
numbers to be printed on the Notes, and 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.


 


(19) GOVERNING LAW.  THE INTERNAL LAW OF THE STATE OF NEW YORK
WILL GOVERN AND BE USED TO CONSTRUE THE INDENTURE, THIS NOTE AND THE SUBSIDIARY
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 and/or the
Registration Rights Agreement. Requests may be made to:


 


 


NewPage Corporation

Courthouse Plaza, NE

Dayton, OH 45463

Attention:  Chief Financial Officer


 


A2-8





















 


	
  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).


 


A2-9





















 


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).


 


A2-10





















 


SCHEDULE OF EXCHANGES OF INTERESTS IN
THE REGULATION S TEMPORARY GLOBAL NOTE


 


The following exchanges of a part of this
Regulation S Temporary Global Note for an interest in another Global Note, or
exchanges of a part of another other Restricted Global Note for an interest in
this Regulation S Temporary Global Note, have been made:


 


	
  Date of
  Exchange

  	
   

  	
  Amount of

  decrease in

  Principal Amount

  [at maturity] of

  this Global Note

  	
   

  	
  Amount of

  increase in

  Principal Amount

  [at maturity] of

  this Global Note

  	
   

  	
  Principal Amount

  [at maturity] of

  this Global Note

  following such

  decrease

  (or increase)

  	
   

  	
  Signature of

  authorized

  signatory of

  Trustee or

  Custodian

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


A2-11





















 


EXHIBIT B


 


FORM OF CERTIFICATE OF TRANSFER


 


NewPage Corporation

Courthouse Plaza, NE

Dayton, OH 45463


 


<in
form of>


 


HSBC
Bank USA, National Association

452 Fifth Avenue

New York, NY 10018


 


Re: 10% Senior Secured Notes Due May 1, 2012


 


Reference is hereby made to the Indenture, dated
as of May 2, 2005 (the “Indenture”), among
NewPage Corporation, as issuer (the “Company”), the Guarantors party thereto and HSBC Bank USA, National
Association, as trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.


 


                        , (the “Transferor”) owns and proposes to transfer the
Note[s] or interest in such Note[s] specified in Annex A hereto, in the
principal amount of $                         in
such Note[s] or interests (the “Transfer”),
to                                                   (the
“Transferee”), as further specified in Annex A
hereto. In connection with the Transfer, the Transferor hereby certifies that:


 


[CHECK ALL THAT APPLY]


 


1.   o   Check if Transferee will take delivery of a
beneficial interest in the 144A Global Note or a 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 144A 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 Regulation S Temporary Global
Note, the Regulation S Permanent 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, (iii) the
transaction


 


B-1





















 


is
not part of a plan or scheme to evade the registration requirements of the
Securities Act and (iv) if the proposed transfer is being made prior to
the expiration of the Restricted Period, the transfer is not being made to a
U.S. Person or for the account or benefit of a U.S. Person (other than an
Initial Purchaser).  Upon consummation of
the proposed transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will be subject to the
restrictions on Transfer enumerated in the Private Placement Legend printed on
the Regulation S Permanent Global Note, the Regulation S Temporary 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 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;


 


4.   o   Check if Transferee will
take delivery of a beneficial interest in an Unrestricted Global Note or of at
Unrestricted Definitive Note.


 


(a)   o   Check if Transfer is pursuant to Rule 144. (i) The
Transfer is being effected pursuant to and in accordance with Rule 144
under the Securities Act and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of any
state of the United States and (ii) the restrictions on transfer contained
in the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Notes, on Restricted Definitive Notes and in the Indenture.


 


(b)   o   Check if Transfer is Pursuant to Regulation S.  (i) The Transfer is being effected
pursuant to and in accordance with Rule 903 or Rule 904 under the
Securities Act and in compliance with the transfer restrictions contained in
the Indenture and any applicable blue sky securities laws of any state of the
United States and (ii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. 
Upon consummation of the proposed Transfer in accordance with the terms
of the Indenture, the transferred beneficial interest or Definitive Note will
no longer be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Global Notes, on Restricted
Definitive Notes and in the Indenture.


 


B-2





















 


(c)   o   Check if Transfer is Pursuant to Other Exemption.
(i) The Transfer is being effected pursuant to and in compliance with an
exemption from the registration requirements of the Securities Act other than
Rule 144, Rule 903 or Rule 904 and in compliance with the
transfer restrictions contained in the Indenture and any applicable blue sky
securities laws of any State of the United States and (ii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities
Act. Upon consummation of the proposed Transfer in accordance with the terms of
the Indenture, the transferred beneficial interest or Definitive Note will not
be subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the Restricted Global Notes or Restricted Definitive Notes
and in the Indenture.


 


This certificate and the statements contained
herein are made for your benefit and the benefit of the Company.


 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [Name
  of Transferor]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  Dated:

  	
   

  	
   

  	
   

  	
   

  
									



 


B-3





















 


ANNEX A TO CERTIFICATE OF TRANSFER


 


1.                                       The Transferor
owns and proposes to transfer the following:


 


[CHECK ONE OF (a) OR (b)]


 


(a)   o   a
beneficial interest in the:


 


(i)   o   144A
Global Note (CUSIP                ),
or


 


(ii)   o   Regulation
S Global Note (CUSIP                ),
or


 


(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   144A
Global Note (CUSIP                ),
or


 


(ii)   o   Regulation
S Global Note (CUSIP                ),
or


 


(iii)   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


 


NewPage Corporation

Courthouse Plaza, NE

Dayton, OH 45463


 


HSBC Bank USA, National
Association

452 Fifth Avenue

New York, NY 10018


 


Re:
10% Senior Secured Notes Due May 1, 2012


 


(CUSIP                 )


 


Reference
is hereby made to the Indenture, dated as of May 2, 2005 (the “Indenture”), among NewPage Corporation, as
issuer (the “Company”), the Guarantors party thereto and HSBC Bank USA, National
Association, 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 lays 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


 


C-1





















 


compliance
with) the transfer restrictions applicable to Restricted Definitive Notes and
pursuant to and in accordance with the Securities Act, (iii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act
and (iv) the beneficial interest is being acquired in compliance with any
applicable blue sky securities laws of any state of the United States.


 


(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 [CHECK ONE] “ 144A Global Note, “ Regulation S 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 NOTATION OF GUARANTEE


 


For value received, each Guarantor (which term
includes any successor Person under the Indenture) has, jointly and severally,
unconditionally guaranteed, to the extent set forth in the Indenture and
subject to the provisions in the Indenture dated as of May 2, 2005 (the “Indenture”) among NewPage Corporation,
(the “Company”), the Guarantors party thereto and
HSBC Bank USA, National Association, as trustee (the “Trustee”), (a) the due and punctual
payment of the principal of, premium and Special Interest, if any, and interest
on, the Notes, whether at maturity, by acceleration, redemption or otherwise
(including any interest, if lawful, on overdue principal of, and interest or
Special Interest, if any, on the Notes), 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 and to the Trustee pursuant to the Subsidiary 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
Subsidiary Guarantee. Each Holder, by accepting the same, (a) agrees to
and shall be bound by such provisions (b) authorizes and directs the
Trustee, on behalf of such Holder, to take such action as may be necessary or
appropriate to effectuate the subordination as provided in the Indenture and
(c) appoints the Trustee attorney-in-fact of such Holder for such purpose;
provided, however, that
the Indebtedness evidenced by this Subsidiary Guarantee shall cease to be so
subordinated and subject in right of payment upon any defeasance of this Note
in accordance with the provisions of the Indenture.


 


Capitalized terms used but not defined herein have
the meanings given to them in the Indenture.


 


	
   

  	
  [NAME OF GUARANTOR[S]]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
					



 


D-1





















 


EXHIBIT E


 


FORM OF SUPPLEMENTAL INDENTURE

TO BE DELIVERED BY SUBSEQUENT GUARANTORS


 


SUPPLEMENTAL
INDENTURE (this “Supplemental Indenture”), dated as of                                              ,
20     , among                                      
(the “Guaranteeing
Subsidiary”), a
subsidiary of NewPage Corporation (or its permitted successor), a Delaware
corporation (the “Company”), the Company, the other
Guarantors (as defined in the Indenture referred to herein) and HSBC Bank USA,
National Association, 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 May 2, 2005
providing for the issuance of 10% Senior Secured Notes due 2012 (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 “Subsidiary 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 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 Subsidiary Guarantee and in the Indenture including but not
limited to Article 11 thereof.


 


3.                                       NO RECOURSE AGAINST OTHERS.  No past, present or future director, officer,
employee, manager, incorporator (or Persons forming a limited liability
company), stockholder or agent or member of the Guaranteeing Subsidiary, as
such, shall have any liability for any obligations of the Company or any
Guaranteeing Subsidiary under the Notes, any Subsidiary 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 by accepting a Note and a
Subsidiary Guarantee waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Notes and the
Subsidiary Guarantees.


 


4.                                       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.


 


E-1





















 


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.


 


E-2





















 


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


 


Dated:                           ,
20    


 


	
   

  	
  [GUARANTEEING SUBSIDIARY]

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  NEWPAGE
  CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CHILLICOTHE
  PAPER INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ESCANABA
  PAPER COMPANY

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MEADWESTVACO
  MARYLAND INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MEADWESTVACO
  OXFORD CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


E-3





















 


	
   

  	
  WICKLIFFE
  PAPER COMPANY

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MEADWESTVACO
  ENERGY SERVICES LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  UPLAND
  RESOURCES INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  RUMFORD
  COGENERATION, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


E-4





















 


	
   

  	
  RUMFORD FALLS POWER COMPANY

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  HSBC
  BANK USA, NATIONAL ASSOCIATION,

  AS TRUSTEE

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


E-5