Exhibit 10.19


 










 


NEWPAGE CORPORATION


 


AND EACH OF THE GUARANTORS PARTY HERETO


 


12% SENIOR SUBORDINATED NOTES DUE 2013


 










 


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

  	
   

  	
   

  
	
  Section 4.08

  	
  Dividend and Other Payment
  Restrictions Affecting Subsidiaries

  	
   

  	
   

  
	
  Section 4.09

  	
  Incurrence of Indebtedness and
  Issuance of Disqualified Stock and Preferred Stock

  	
   

  	
   

  



 


i





















 


	
  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

  	
  No Layering of Debt

  	
   

  	
   

  
	
  Section 4.17

  	
  Payments for Consent

  	
   

  	
   

  
	
  Section 4.18

  	
  Additional Subsidiary Guarantees

  	
   

  	
   

  
	
  Section 4.19

  	
  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

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  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

  	
   

  	
   

  



 


ii





















 


	
  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

  
	
  SUBORDINATION

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 10.01

  	
  Agreement to Subordinate

  	
   

  	
   

  
	
  Section 10.02

  	
  Liquidation; Dissolution;
  Bankruptcy

  	
   

  	
   

  
	
  Section 10.03

  	
  Default on Designated Senior Debt

  	
   

  	
   

  
	
  Section 10.04

  	
  Acceleration of Notes

  	
   

  	
   

  
	
  Section 10.05

  	
  When Distribution Must Be Paid Over

  	
   

  	
   

  
	
  Section 10.06

  	
  Notice by Company

  	
   

  	
   

  
	
  Section 10.07

  	
  Subrogation

  	
   

  	
   

  
	
  Section 10.08

  	
  Relative Rights

  	
   

  	
   

  
	
  Section 10.09

  	
  Subordination May Not Be
  Impaired by Company

  	
   

  	
   

  
	
  Section 10.10

  	
  Distribution or Notice to
  Representative

  	
   

  	
   

  
	
  Section 10.11

  	
  Rights of Trustee and Paying Agent

  	
   

  	
   

  
	
  Section 10.12

  	
  Authorization to Effect
  Subordination

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 11

  
	
  SUBSIDIARY GUARANTEES

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 11.01

  	
  Guarantee

  	
   

  	
   

  
	
  Section 11.02

  	
  Subordination of Subsidiary
  Guarantee

  	
   

  	
   

  
	
  Section 11.03

  	
  Limitation on Guarantor Liability

  	
   

  	
   

  
	
  Section 11.04

  	
  Execution and Delivery of
  Subsidiary Guarantee

  	
   

  	
   

  
	
  Section 11.05

  	
  Guarantors May Consolidate,
  etc., on Certain Terms

  	
   

  	
   

  
	
  Section 11.06

  	
  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

  	
   

  	
   

  
	
  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

  	
   

  	
   

  



 


iii





















 


	
  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
  REGULATION S 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 12% Senior Subordinated Notes due 2013 (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.


 


“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 Senior Secured
Notes and the Notes.


 


“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


 


1





















 


(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:


 


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


 


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


 


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


 


(4) the 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;


 


(5) 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;


 


(6) 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;


 


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


 


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


 


2





















 


(9) 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;


 


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


 


(11) 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 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


 


3





















 


(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 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;


 


4





















 


(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.


 


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


 


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


 


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


 


(3) the consummation of any transaction (including,
without limitation, any merger or consolidation), the result of which is that
any “person” (as defined above), other than 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.


 


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


 


“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


 


5





















 


(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


 


(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);


 


6





















 


(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;


 


(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;


 


7





















 


(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.


 


“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 that certain (i) Revolving 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


 


8





















 


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 and (ii) Term Loan Credit and Guaranty
Agreement, dated the date of this Indenture, by and among the Company, the
guarantors party thereto, the lenders party thereto and Goldman Sachs Credit
Partners L.P., as Administrative Agent, and
certain other agents and arrangers, in each case 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.


 


“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 A1 hereto except that such Note shall
not bear the Global Note Legend and shall not have the “Schedule of Exchanges
of Interests in the Global Note” attached thereto.


 


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


 


“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.


 


“Designated
Senior Debt” means:


 


(1) any Indebtedness outstanding under the Credit Agreements;


 


9





















 


(2) after payment in full of all Obligations under the Credit
Agreements other than all Senior Secured Notes issued under the Senior Secured
Note Indentures; and


 


(3) after payment in full of all Obligations under the Credit Agreements,
any other Senior Debt permitted under this Indenture the principal amount of
which is $25.0 million or more and that has been designated by the Company as “Designated
Senior Debt.”


 


“Disqualified
Stock” means any Capital Stock that, by its terms (or
by the terms of any security into which it is convertible, or for which it is
exchangeable, in each case, at the option of the holder of the Capital Stock),
or upon the happening of any event, matures or is mandatorily redeemable,
pursuant to a sinking fund obligation or otherwise, or redeemable at the option
of the holder of the Capital Stock, in whole or in part, on or prior to the
date that is 91 days after the date on which the Notes mature.  Notwithstanding the preceding sentence, any
Capital Stock that would constitute Disqualified Stock solely because the
holders of the Capital Stock have the right to require the Company to
repurchase such Capital Stock upon the occurrence of a change of control or an
asset sale will not constitute Disqualified Stock if the terms of such Capital
Stock provide that the Company may not repurchase or redeem any such Capital
Stock pursuant to such provisions unless such repurchase or redemption complies
with Section 4.07 hereof. The amount of Disqualified Stock deemed to be
outstanding at any time for 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.


 


“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 Notes and the Senior Secured 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


 


10





















 


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.


 


“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).


 


“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.


 


“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 A1 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 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


 


11





















 


(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 Floating Rate Senior Unsecured PIK
Note Indenture, dated May 2, 2005, between NewPage Holdings
Corporation and HSBC Bank USA, National Association.


 


“HoldCo Notes” means the Floating Rate Senior Unsecured PIK Notes issued by NewPage Holdings
Corporation pursuant to the HoldCo indenture, any exchange notes issued in
connection with any registration of such notes, and any additional Floating
Rate Senior Unsecured PIK Notes issued by NewPage Holdings Corporation as
payment of interest and special interest, if any, pursuant to the Holdco
Indenture.


 


“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;


 


(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.  An addition, the term “Indebtedness” includes
all Indebtedness of others secured by a Lien on any


 


12





















 


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
term “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 $200,000,000 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, J.P. Morgan Securities Inc. and
Lehman Brothers Inc.


 


“Insolvency or
Liquidation Proceeding” means:


 


(1)                                  any case commenced by or against the Company
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, any
receivership or assignment for the benefit of creditors relating to the Company
or any similar case or proceeding relative to the Company 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, 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 are determined and
any payment or distribution is or may be made on account of such claims.


 


“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.


 


“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


 


13





















 


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 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
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.


 


14





















 


“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.


 


“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.


 


“Net Proceeds” means the aggregate cash proceeds received by the Company or any of its
Restricted Subsidiaries in respect of any Asset Sale (including, without
limitation, any cash received upon the sale or other disposition of any
non-cash consideration, including Designated Non-cash Consideration, received
in any Asset Sale), net of the direct costs relating to such Asset Sale,
including, without limitation, legal, accounting and investment banking fees,
appraisal and insurance adjuster fees and sales commissions, and any relocation
expenses incurred as a result of the Asset Sale, taxes paid or payable as a
result of the Asset Sale, in each case, after taking into account, without
duplication, (1) any amounts required to be applied to the repayment of
Indebtedness, other than Senior Debt, secured by a Lien on the asset or assets
that were the subject of such Asset Sale, (2) 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, (3) any reserves for adjustment in respect of the sale price
of such asset established in accordance with GAAP, and (4) 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


 


15





















 


(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.


 


“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 the 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 documents governing any such Indebtedness, 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.


 


“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.


 


“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


 


16





















 


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;


 


(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 the Senior Secured Notes and the 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


 


17





















 


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;


 


(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
Junior Securities” means:


 


(1) common Equity Interests in the Company or any Guarantor; or


 


(2) debt securities that are subordinated to all Senior Debt and any
debt securities issued in exchange for Senior Debt to substantially the same
extent as, or to a greater extent than, the Notes and the Subsidiary Guarantees
are subordinated to Senior Debt under this Indenture.


 


“Permitted Liens” means;


 


(1) Liens on assets of the Company or any of its Restricted
Subsidiaries securing Senior Debt that was permitted by the terms of this
Indenture to be incurred;


 


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


 


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


 


18





















 


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


 


(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;


 


(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; 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;


 


19





















 


(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;


 


(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 (3), (4), (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 when 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 HoldCo Notes and the related registration rights
agreement when due, in an aggregate amount not to exceed $1.5 million per annum; and


 


20





















 


(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 lessor 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 carrybacks of tax
attributes (such as net operating losses) of the Company and such Subsidiaries from
other taxable years and (ii) the net amount of the relevant tax that the
direct or indirect 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:


 


21





















 


(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;


 


(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.


 


“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.


 


“Pro
Forma Cost 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 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:


 


22





















 


(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 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


 


23





















 


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).


 


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.


 


24





















 


“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 Al 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).


 


“Representatives” means the trustee, agent or representatives, if any, or an issuer of
Senior Debt.


 


“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.


 


“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.


 


25





















 


“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.


 


“SEC” means the Securities and Exchange Commission.


 


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


 


“Senior Debt” means:


 


(1) all Indebtedness of the Company or any Guarantor
outstanding under Credit Facilities (including interest accruing on or after
the filing of any petition in bankruptcy or for reorganization of the Company
or any Guarantor, regardless of whether or not a claim for post-filing interest
is allowed in such proceedings) and all Hedging Obligations with respect
thereto whether outstanding on the date of this Indenture or incurred
thereafter;


 


(2) all of the Senior Secured Notes and the related Guarantees issued
under the Senior Secured Note Indentures (including interest accruing on or
after the filing of any petition in bankruptcy or for reorganization of the Company
or any Subsidiary Guarantor, regardless of whether or not a claim for
post-filing interest is allowed in such proceedings);


 


(3) any other Indebtedness of the Company or any Guarantor permitted to
be incurred under the terms of this Indenture, unless the instrument under
which such Indebtedness is incurred expressly provides that it is on a parity
with or subordinated in right of payment to the Notes or any Subsidiary
Guarantee; and


 


(4) all Obligations with respect to the items
listed in the preceding clauses (1), (2) and (3).


 


Notwithstanding
anything to the contrary in the preceding, Senior Debt will not include:


 


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


 


(2) any intercompany Indebtedness of the Company or any of its
Subsidiaries to the Company or any of its Affiliates (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);


 


(3) any trade payables;


 


(4) the portion of any Indebtedness that is incurred in violation of
this Indenture; or


 


(5) Indebtedness which is classified as non-recourse in accordance with
GAAP or any unsecured claim arising in respect thereof by reason of the application
of Section 1111(b)(1) of the Bankruptcy Code.


 


26





















 


“Senior Secured
Fixed Rate Notes” means the 10.0% Senior Secured Fixed Rate
Notes due 2012 issued pursuant to the Senior Secured Fixed Rate Note Indenture.


 


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


 


“Senior Secured
Floating Rate Notes” means the Senior Secured Floating Rate 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 Senior Secured
Floating Rate Notes and the Senior Secured Fixed Rate Notes.


 


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


 


“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.


 


“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


 


27





















 


(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.


 


“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.


 


“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


 


28





















 


(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.


 


“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 Blockage Notice” 

  	
   

  	
  10.03

  
	
  “Payment Default”

  	
   

  	
  6.01

  
	
  “Permitted Debt” 

  	
   

  	
  4.09

  
	
  “Purchase Date” 

  	
   

  	
  3.09

  
	
  “Redemption Date” 

  	
   

  	
  3.07

  
	
  “Registrar” 

  	
   

  	
  2.03

  
	
  “Restricted Payments” 

  	
   

  	
  4.07

  



 


29





















 


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;


 


“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


 


30





















 


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 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.


 


31


















 


(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.


 


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.


 


32





















 


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, interest or Special Interest, if any, 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 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


 


33





















 


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
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


 


34





















 


(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 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 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:


 


35





















 


(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;


 


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 or Exchange of Beneficial Interests
for Definitive Notes.


 


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


 


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


 


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


 


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


 


(D) if such beneficial interest is being transferred pursuant to an
exemption from the registration requirements of the Securities Act in
accordance with Rule 144, a


 


36





















 


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,


 


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 in 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:


 


37





















 


(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;


 


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;


 


38





















 


(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


 


(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;


 


39





















 


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.


 


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


 


If any such exchange or transfer from a Definitive Note to a beneficial
interest is effected pursuant to subparagraphs (2)(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.


 


40





















 


(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 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 in accordance 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


 


41





















 


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.


 


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


 


42





















 


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.”


 


(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.


 


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(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).


 


(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.


 


44





















 


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 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).


 


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Section 2.10                             Temporary Notes.


 


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


 


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


 


Section 2.11                                Cancellation.


 


The
Company at any time may deliver Notes to the Trustee for cancellation. The
Registrar and Paying Agent will forward to the Trustee any Notes surrendered to
them for registration of transfer, exchange or payment. The Trustee and no one
else will cancel all Notes surrendered for registration of transfer, exchange,
payment, replacement or cancellation and will 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.


 


46





















 


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


 


(4)
the redemption or purchase price.


 


The
Company may cancel any optional redemption referenced in such Officer’s
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.


 


47





















 


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 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 ceases 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.


 


48





















 


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.


 


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 112% 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

  	
  %

  
	
  2010

  	
   

  	
  103

  	
  %

  
	
  2011 and thereafter

  	
   

  	
  100

  	
  %

  



 


49





















 


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.


 


(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 rata basis, if applicable)
or, if less than the Offer Amount has been tendered, all Notes and other
Indebtedness tendered in response to the Asset Sale Offer. Payment for any
Notes so purchased will be made 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 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;


 


50





















 


(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;


 


(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
or before the Purchase Date, the Company will, to the extent lawful, accept for
payment, on a pro rata basis to
the extent necessary, the Offer Amount of Notes or portions thereof 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.


 


51





















 


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, 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.


 


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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


 


(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


 


53





















 


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).


 


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 of advantage


 


54





















 


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.


 


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 pro forma effect thereto as if such Restricted Payment had been made at
the beginning of the applicable four-quarter period, have been permitted to
incur at least $1.00 of additional Indebtedness pursuant to the 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), (11) 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


 


55





















 


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


 


(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 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;


 


56





















 


(5) so long as no Default has occurred and is continuing or would be
caused thereby, the repurchase, redemption or other acquisition or retirement
for value of any Equity Interests of the Company or any Restricted Subsidiary
of the Company held by any current or former officer, director, consultant or
employee of the Company or any of its Restricted Subsidiaries, and any 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 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


 


57





















 


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
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:


 


58





















 


(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, and this Indenture, the Notes and the related
Subsidiary 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;


 


(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;


 


59





















 


(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.


 


(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”):


 


60





















 


(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 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 thereunder 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 any
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 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 thereunder 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 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 Notes and their related
Guarantees to be issued on the date hereof, the Senior Secured Note Indentures,
this Indenture and the related Exchange Notes and the related Guarantees to be
issued pursuant to the Registration Rights Agreement;


 


61





















 


(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);


 


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


 


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(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 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,


 


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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)
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.


 


(d)
The amount of any Indebtedness outstanding as of any date will be:


 


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


 


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


 


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


 


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


 


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


 


Section 4.10                                Asset Sales.


 


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


 


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(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 (2) or (4) 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, the Company (or the applicable Restricted
Subsidiary, as the case may be) may apply such Net Proceeds at its option:


 


(1)           to repay or prepay Senior Debt and, if the Senior Debt repaid is
revolving credit Indebtedness, to correspondingly reduce commitments with
respect thereto;


 


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


 


(3)           to make a capital expenditure; or


 


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(4)           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
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 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 in accordance with Section 3.09 hereof to purchase the maximum
principal amount of Notes and such other pari
passu Indebtedness 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 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. Upon completion of each Asset Sale Offer, the amount
of Excess Proceeds will be reset at zero.


 


(d) The Company will comply with the
requirements of Rule 14e-1 under the Exchange Act and any other securities
laws and regulations thereunder to the extent those laws and regulations are applicable
in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To
the extent that the provisions of any securities laws or regulations conflict
with 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.


 


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


 


66





















 


(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;


 


(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 Party 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;


 


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(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 Secured Notes and 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) securing Indebtedness upon any of their property or assets, now owned or
hereafter acquired, unless all payments due under this Indenture and the Notes
are secured on an equal and ratable basis with the obligations so secured until
such time as such obligations are no longer secured by a Lien; provided that if such Indebtedness is by
its terms expressly subordinated to the Notes or any Subsidiary Guarantee, the
Lien securing such Indebtedness shall be subordinate and junior to the Lien
securing the Notes and the Subsidiary Guarantees with the same relative
priority as such subordinate or junior Indebtedness shall have with respect to
the Notes and Subsidiary Guarantees.


 


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.


 


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 organizational 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


 


68





















 


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 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-1 under the Exchange Act and any other securities laws and
regulations thereunder to the extent those laws and regulations are applicable
in connection with the repurchase of the Notes as a result of a Change of Control.
To the extent that the


 


69





















 


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 the
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.


 


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


 


(c) Notwithstanding anything to the
contrary in this Section 4.15, the Company will not be required to make a
Change of Control Offer upon a Change of Control if (1) a third party makes
the Change of Control Offer in the manner, at the times and otherwise in
compliance with the requirements set forth in 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          No Layering of Debt.


 


The Company will not incur, create, issue,
assume, guarantee or otherwise become liable for any Indebtedness that is
contractually subordinate or junior in right of payment to any Senior Debt of
the Company and senior in right of payment to the Notes. No Guarantor will
incur, create, issue, assume, guarantee or otherwise become liable for any
Indebtedness that is contractually subordinate or junior in right of payment to
the Senior Debt of such Guarantor and senior in right of payment to such
Guarantor’s Subsidiary Guarantee. No such Indebtedness will be considered to be
senior by virtue of being secured on a first or junior priority basis. For
purposes of this Section 4.16, no Indebtedness will be deemed to be
contractually subordinated in right of payment or junior in respect to any
other Indebtedness of the Company or a Guarantor solely by virtue of being
unsecured or by virtue of the fact that the holders of


 


70





















 


secured indebtedness have
entered into intercreditor agreements giving one or more of such holders priority
over the other holders in the collateral held by them.


 


Section 4.17         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 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 4.18         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).


 


Section 4.19           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


 


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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;


 


(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.


 


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(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.


 


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, whether or not prohibited
by the subordination provisions of this Indenture;


 


(2) 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 this Indenture;


 


(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;


 


(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


 


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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;


 


(7) 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;


 


(8) 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


 


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


 


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


 


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


 


(9) 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;


 


(10) 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


 


(11) 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 (7) or (8) 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. If any
Designated Senior Debt is outstanding, the Company may only pay amounts due on
the Notes of otherwise permitted under Article 10.


 


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.


 


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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 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.


 


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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 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, 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,


 


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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.


 


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;


 


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


 


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


 


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


 


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


 


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


 


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


 


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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.


 


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


 


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


 


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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 SBC 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, including the costs and expenses of enforcing this
Indenture against the Company and the Guarantors (including this Section 7.07)
and defending itself against any claim (whether asserted by the Company, the
Guarantors, any Holder or any other Person) or liability in connection with the
exercise or performance of any of its powers or duties hereunder, except to the
extent any such loss, liability or expense may be attributable to its
negligence, 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.


 


(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.


 


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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.


 


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.


 


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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 expanse 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;


 


(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


 


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(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:


 


(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,


 


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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.


 


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


 


Subject to Section 8.06 hereof, all money and non-callable
Government Securities (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee, collectively for purposes of this Section 8.05,
the “Trustee”)
pursuant to Section 8.04 hereof in respect of the outstanding Notes
will be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as Paying Agent) as the
Trustee may determine, to the Holders of such Notes of all sums due and to
become due thereon in respect of principal, premium 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.


 


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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 the reinstatement of its
obligations, the Company will be subrogated to the rights of the Holders of
such Notes to receive such payment from the money held by the Trustee or Paying
Agent.


 


ARTICLE 9


AMENDMENT, SUPPLEMENT AND WAIVER


 


Section 9.01           Without Consent of Holders.


 


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;


 


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(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 Subordinated Notes” section of the Offering Circular, to the extent
that such provision in that “Description of Senior Subordinated 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;
or


 


(9) 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.


 


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 rights of the Holders will


 


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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;


 


(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);


 


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(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.


 


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.


 


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


SUBORDINATION


 


Section 10.01         Agreement to Subordinate.


 


The Company agrees, and each Holder by accepting a Note agrees, that
the Indebtedness evidenced by the Notes, including the payment of principal,
interest and premium and Special Interest, if any, is subordinated in right of
payment, to the extent and in the manner provided in this Article 10, to the
prior payment in full of all Senior Debt (whether outstanding on the date
hereof or hereafter created,


 


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incurred,
assumed or guaranteed), and that the subordination is for the benefit of the
holders of Senior Debt.


 


Section 10.02         Liquidation; Dissolution;
Bankruptcy.


 


Upon any distribution to creditors of the Company in a liquidation or
dissolution of the Company or in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding relating to the Company or its property, in
an assignment for the benefit of creditors or any marshaling of the Company’s
assets and liabilities:


 


(1) the holders of Senior Debt will be
entitled to receive payment in full of all Obligations due in respect of such
Senior Debt (including interest after the commencement of any bankruptcy
proceeding at the rate specified in the documentation governing the applicable
Senior Debt) before the Holders will be entitled to receive any payment with
respect to the Notes (except that the Holders may receive and retain Permitted
Junior Securities and payments made from any trust created pursuant to Article 8
or Article 12 hereof); and


 


(2) until all Obligations with respect
to Senior Debt (as provided in clause (1) above) are paid in full, any
distribution to which Holders would be entitled but for this Article 10
will be made to holders of Senior Debt (except that the Holders may receive and
retain Permitted Junior Securities and payments made from any trust created
pursuant to Article 8 or Article 12 hereof), as their interests may
appear.


 


Section 10.03         Default on Designated
Senior Debt.


 


(a) The Company may not make any payment or distribution to the
Trustee or any Holder in respect of Obligations with respect to the Notes,
including the payment of principal, interest and premium and Special Interest,
if any, and may not acquire from the Trustee or any Holder any Notes for cash
or property (other than Permitted Junior Securities and payments made from any
trust created pursuant to Article 8 or Article 12 hereof) until all
principal and other Obligations with respect to the Senior Debt have been paid
in full if:


 


(1) a payment default on Designated Senior
Debt occurs and is continuing beyond any applicable grace period in the
agreement, indenture or other document governing such Designated Senior Debt;
or


 


(2) any other default occurs and is
continuing on any series of Designated Senior Debt that permits holders of that
series of Designated Senior Debt to accelerate its maturity and the Trustee
receives a notice of such default (a “Payment Blockage Notice”) from the
Company of the holders of any Designated Senior Debt. If the Trustee receives
any such Payment Blockage Notice, no subsequent Payment Blockage Notice may be
delivered or will be effective for purposes of this Section 10.03 unless
and until (A) at least 360 days have elapsed since the delivery of the
immediately prior Payment Blockage Notice and (B) all scheduled payments
of principal, premium and Special Interest, if any, and interest on the Notes
that have come due have been paid in full in cash.


 


No nonpayment default that existed or was continuing on the date of
delivery of any Payment Blockage Notice to the Trustee will be, or be made, the
basis for a subsequent Payment Blockade Notice unless such default has have
been waived for a period of not less than 90 days.


 


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Notwithstanding the foregoing, the Company may make payment on the
Notes if the Company and the Trustee receive written notice approving such
payment from the holders of any Designated Senior Debt with respect to which
either of the events set forth in clauses (1) and (2) of this clause
(a) has occurred and is continuing.


 


(b) The Company may and will resume payments on and distributions
in respect of the Notes at the first to occur of the following:


 


(1) in the case of a payment default, upon
the date upon which such default is cured or waived, or


 


(2) in the case of any other default, upon
the earlier of (i) the date on which such default is cured or waived,
(ii) 179 days after the date on which the applicable Payment Blockage
Notice is received, or (iii) the date the Trustee receives notice from a
Representative of the Designated Senior Debt, rescinding the Payment Blockage
Notice, unless the maturity of any Designated Senior Debt has been accelerated.


 


Section 10.04         Acceleration of Notes.


 


If payment of the Notes is accelerated because of an Event of Default,
the Company must promptly notify the Representatives of Senior Debt of the
acceleration.


 


Section 10.05        When Distribution Must Be
Paid Over.


 


In the event that the Trustee or any Holder receives any payment of any
Obligations with respect to the Notes, including the payment of principal,
interest and premium and Special Interest, if any, (other than Permitted Junior
Securities and payments made from any trust created pursuant to Article 8
or Article 12 hereof) at a time when (i) the payment is prohibited by
this Article 10, and (ii) the Trustee or such Holder, as applicable,
has actual knowledge that such payment is prohibited by Section 10.03
hereof, such payment will be held by the Trustee or such Holder, as the case
may be, in trust for the benefit of, and will be paid forthwith over and
delivered, upon written request of the holders of Senior Debt or their
Representative as their interests may appear under the agreement, indenture or
other document (if any) pursuant to which such Senior Debt may have been issued
to the Representatives of Senior Debt as their respective interests may appear.


 


With respect to the holders of Senior Debt, the Trustee undertakes to
perform only those obligations on the part of the Trustee as are specifically
set forth in this Article 10, and no implied covenants or obligations with
respect to the holders of Senior Debt will be read into this Indenture against
the Trustee. The Trustee will not be deemed to owe any fiduciary duty to the
holders of Senior Debt, and will not be liable to any such holders if the
Trustee pays over or distributes to or on behalf of Holders or the Company or
any other Person money or assets to which any holders of Senior Debt are then
entitled by virtue of this Article 10, except if such payment is made as a
result of the willful misconduct or gross negligence of the Trustee.


 


Section 10.06         Notice by Company.


 


The Company will promptly notify the Trustee and the Paying Agent of
any facts known to the Company that would cause a payment of any Obligations
with respect to the Notes to violate this Article 10, but failure to give
such notice will not affect the subordination of the Notes to the Senior Debt
as provided in this Article 10.


 


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Section 10.07         Subrogation.


 


After all Senior Debt is paid in full and until the Notes are paid in
full, Holders will be subrogated (equally and ratably with all other
Indebtedness pari passu with the
Notes) to the rights of holders of Senior Debt to receive distributions
applicable to Senior Debt to the extent that distributions otherwise payable to
the Holders have been applied to the payment of Senior Debt. A distribution
made under this Article 10 to holders of Senior Debt that otherwise would
have been made to Holders is not, as between the Company and Holders, a payment
by the Company on the Notes.


 


Section 10.08        Relative Rights.


 


This Article 10 defines the relative rights of Holders and holders
of Senior Debt. Nothing in this Indenture will:


 


(1) impair, as between the Company and
Holders, the obligation of the Company, which is absolute and unconditional, to
pay principal of, premium and interest and Special Interest, if any, on, the
Notes in accordance with their terms;


 


(2) affect the relative rights of Holders and
creditors of the Company other than their rights in relation to holders of
Senior Debt; or


 


(3) prevent the Trustee or any Holder from
exercising its available remedies upon a Default or Event of Default, subject
to the rights of holders and owners of Senior Debt to receive distributions and
payments otherwise payable to Holders.


 


If the Company fails because of this Article 10 to pay principal
of, premium or interest or Special Interest, if any, on, a Note on the due
date, the failure is still a Default or Event of Default.


 


Section 10.09         Subordination May Not
Be Impaired by Company.


 


No right of any holder of Senior Debt to enforce the subordination of
the Indebtedness evidenced by the Notes may be impaired by any act or failure
to act by the Company or any Holder or by the failure of the Company or any
Holder to comply with this Indenture.


 


Section 10.10        Distribution or Notice to
Representative.


 


Whenever a distribution is to be made or a notice given to holders of
Senior Debt, the distribution may be made and the notice given to their
Representative.


 


Upon any payment or distribution of assets of the Company referred to
in this Article 10, the Trustee and the Holders will be entitled
conclusively to rely upon any order or decree made by any court of competent
jurisdiction or upon any certificate of such Representative or of the
liquidating trustee or agent or other Person making any distribution to the
Trustee or to the Holders for the purpose of ascertaining the Persons entitled
to participate in such distribution, the holders of the Senior Debt and other
Indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article 10.


 


Section 10.11         Rights of Trustee and
Paying Agent.


 


Notwithstanding the provisions of this Article 10 or any other
provision of this Indenture, the Trustee will not be charged with knowledge of
the existence of any facts that would prohibit the making


 


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of
any payment or distribution by the Trustee, and the Trustee and the Paying
Agent may continue to make payments on the Notes, unless the Trustee has
received at its Corporate Trust Office at least five Business Days prior to the
date of such payment written notice of facts that would cause the payment of
any Obligations with respect to the Notes to violate this Article 10. Only
the Company or a Representative may give the notice. Nothing in this Article 10
will impair the claims of, or payments to, the Trustee under or pursuant to Section 7.07
hereof.


 


The Trustee in its individual or any other capacity may hold Senior
Debt with the same rights it would have if it were not Trustee. Any Agent may
do the same with like rights.


 


Section 10.12        Authorization to Effect
Subordination.


 


Each Holder, by the Holder’s acceptance thereof, authorizes and directs
the Trustee on such Holder’s behalf to take such action as may be necessary or
appropriate to effectuate the subordination as provided in this Article 10,
and appoints the Trustee to act as such Holder’s attorney-in-fact for any and
all such purposes. If the Trustee does not file a proper proof of claim or
proof of debt in the form required in any proceeding referred to in Section 6.09
hereof at least 30 days before the expiration of the time to file such claim,
the Representatives are hereby authorized to file an appropriate claim for and
on behalf of the Holders.


 


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.


 


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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 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        Subordination of Subsidiary
Guarantee.


 


The Obligations of each Guarantor under its Subsidiary Guarantee
pursuant to this Article 11 will be junior and subordinated to the Senior
Debt of such Guarantor on the same basis as the Notes are junior and
subordinated to Senior Debt of the Company. For the purposes of the foregoing
sentence, the Trustee and the Holders will have the right to receive and/or
retain payments by any of the Guarantors only at such times as they may receive
and/or retain payments in respect of the Notes pursuant to this Indenture,
including Article 10 hereof.


 


Section 11.03        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 11.04         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


 


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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 of 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 11.05        Guarantors
May Consolidate, etc., on Certain Terms.


 


Except as otherwise provided in Section 11.06 hereof, no Guarantor
may sell or otherwise dispose of all or substantially all of its assets to, or
consolidate with or merge with or into (whether or not such Guarantor is the
surviving Person) another Person, other than the Company or another Guarantor,
unless:


 


(1) immediately after giving effect to such
transaction, no Default or Event of Default
exists; and


 


(2) either:


 


(a) 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.


 


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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 11.06         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.


 


Any Guarantor not released from its obligations under its Subsidiary
Guarantee as provided in this Section 11.06 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


 


96





















 


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


 


Section 12.02         Application of Trust Money.


 


Subject to the provisions of Section 8.06 hereof, all money
deposited with the Trustee pursuant to Section 12.01 hereof shall be held
in trust and applied by it, in accordance with the provisions of the Notes and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium 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.


 


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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.


 


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


 


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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.


 


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.


 


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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, 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.


 


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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]


 


101





















 


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

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  MEADWESTVACO MARYLAND INC.
  (TO BE NAMED

  
	
  LUKE

  	
   

  	
  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

  



 


Subordinated 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                           

  



 


12% Senior Subordinated Notes due 2013


 


	
  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

  	
   

  



 


A-1





















 


[Back of Note]


12% Senior Subordinated Notes due 2013


 


[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 12% 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

  	
  %

  
	
  2010

  	
   

  	
  103

  	
  %

  
	
  2011 and thereafter

  	
   

  	
  100

  	
  %

  



 


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


 


(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 112.0%
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 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


 


(2) 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 Special Interest,
if any, to the date of


 


A-3





















 


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.


 


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 Subordinated 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 Subordinated 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 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 Subsidiary Guarantor, or any
Person acting on behalf of any Subsidiary Guarantor, denies or disaffirms its
obligations under its Subsidiary Guarantee; and (viii) 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) SUBORDINATION. Payment
of principal, interest and premium and Special Interest, if any, on the Notes
is subordinated to the prior payment of Senior Debt on the terms provided in the
Indenture.


 


(14) TRUSTEE DIALINGS 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.


 


(15) 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.


 


(16) AUTHENTICATION.   This Note will not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.


 


(17) ABBREVIATIONS. Customary
abbreviations may be used in the name of a Holder or an assignee, such as: TEN
COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (=
joint tenants with right of survivorship and not as tenants in common), CUST (=
Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).


 


(18) 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”).


 


(19) 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.


 


(20) 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

  



 


12% Senior Subordinated Notes due 2013


 


	
  No.

  	
  $

  



 


NEWPAGE CORPORATION


 


promises
to pay to [           ]
or registered assigns,


 


the principal sum of                                                                                                                                                                 
DOLLARS on May I, 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]


12% Senior Subordinated
Notes due 2013


 


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 12% 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

  	
  %

  
	
  2010

  	
   

  	
  103

  	
  %

  
	
  2011 and
  thereafter

  	
   

  	
  100

  	
  %

  



 


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


 


(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 112.0% 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 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


 


(2)  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 Special


 


A2-4





















 


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 he 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.


 


(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


 


A2-5





















 


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 Subordinated 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 Subordinated 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


 


A2-6





















 


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 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 Subsidiary
Guarantor, or any Person acting on behalf of any Subsidiary Guarantor, denies
or disaffirms its obligations under its Subsidiary Guarantee; and (viii)
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
Subsidiary or any group of Restricted Subsidiaries of the Company that, taken
together, would constitute a Significant Subsidiary.


 


(13) SUBORDINATION. Payment of principal, interest and
premium and Special Interest, if any, on the Notes is subordinated to the prior
payment of Senior Debt on the terms provided in the Indenture.


 


(14) 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.


 


(15) 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.


 


(16) AUTHENTICATION. This
Note will not be valid until authenticated by the manual signature of the
Trustee or an authenticating agent.


 


(17) ABBREVIATIONS. Customary
abbreviations may be used in the name of a Holder or an assignee, such as: TEN
COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (=
joint tenants with right of survivorship and not as tenants in common), CUST (=
Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).


 


(18) 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





















 


(19)         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.


 


(20)         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


 


HSBC
Bank USA, National Association

452 Fifth Avenue

New York, NY 10018


 


 


Re: 12% Senior Subordinated Notes Due May 1,
2013


 


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 is not part of a plan or scheme to evade
the registration requirements of the Securities Act and (iv) if the


 


B-1





















 


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 an
Unrestricted Definitive Note.


 


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


 


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


 


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: 12 % Senior Subordinated Notes Due May 1,
2013


 


(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 laws of any state of the United States.


 


C-1





















 


(c)  o     Check if Exchange is from Restricted Definitive Note to
beneficial interest in an Unrestricted Global Note. In connection with
the Owner’s Exchange of a Restricted Definitive Note for a beneficial interest
in an Unrestricted Global Note, the Owner hereby certifies (i) the beneficial
interest is being acquired for the Owner’s own account without transfer, (ii)
such Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Definitive Notes and pursuant to and in accordance
with the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the beneficial interest is
being acquired in compliance with any applicable blue sky securities laws of any
state of the United States.


 


(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] o 144A Global Note, o 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.


 


C-2





















 


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


 


	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [Insert Name of
  Transferor]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
   

  
							



 


C-3





















 


EXHIBIT D


 


FORM OF 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 12% Senior Subordinated Notes due 2013 (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 of 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 released 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.


 


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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-1





















 


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:

  
	
   

  	
   

  
	
   

  	
  WICKLIFFE PAPER COMPANY

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  MEADWESTVACO ENERGY
  SERVICES LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


E-2





















 


	
   

  	
  UPLAND RESOURCES INC.

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  RUMFORD
  COGENERATION INC.

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  RUMFORD FALLS POWER
  COMPANY

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  HSBC BANK USA, NATIONAL
  ASSOCIATION,

  as Trustee

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


E-3