Exhibit 10.17


 










 


 


NEWPAGE CORPORATION


 


AND EACH OF THE
GUARANTORS PARTY HERETO


 


FLOATING RATE SENIOR
SECURED NOTES DUE 2012


 










 


 


INDENTURE


 


Dated as of May 2, 2005


 










 


 


HSBC Bank USA, National
Association


 


Trustee


 










 





















 


CROSS-REFERENCE TABLE*


 


	
  Trust
  Indenture

  Act Section

  	
   

  	
   

  	
  Indenture Section

  
	
  310

  	
  (a)(l)

  	
   

  	
  7.10

  
	
   

  	
  (a)(2)

  	
   

  	
  7.10

  
	
   

  	
  (a)(3)

  	
   

  	
  N.A.

  
	
   

  	
  (a)(4)

  	
   

  	
  N.A.

  
	
   

  	
  (a)(5)

  	
   

  	
  7.10

  
	
   

  	
  (b)

  	
   

  	
  7.10

  
	
   

  	
  (c)

  	
   

  	
  N.A.

  
	
  311

  	
  (a)

  	
   

  	
  7.11

  
	
   

  	
  (b)

  	
   

  	
  7.11

  
	
   

  	
  (c)

  	
   

  	
  N.A.

  
	
  312

  	
  (a)

  	
   

  	
  2.05

  
	
   

  	
  (b)

  	
   

  	
  12.03

  
	
   

  	
  (c)

  	
   

  	
  12.03

  
	
  313

  	
  (a)

  	
   

  	
  7.06

  
	
   

  	
  (b)(2)

  	
   

  	
  7.06;
  7.07

  
	
   

  	
  (c)

  	
   

  	
  7.06;
  12.02

  
	
   

  	
  (d)

  	
   

  	
  7.06

  
	
  314

  	
  (a)

  	
   

  	
  4.03;12.02;
  12.05

  
	
   

  	
  (c)(1)

  	
   

  	
  12.04

  
	
   

  	
  (c)(2)

  	
   

  	
  12.04

  
	
   

  	
  (c)(3)

  	
   

  	
  N.A.

  
	
   

  	
  (e)

  	
   

  	
  12.05

  
	
   

  	
  (f)

  	
   

  	
  N.A.

  
	
  315

  	
  (a)

  	
   

  	
  7.01

  
	
   

  	
  (b)

  	
   

  	
  7.05;
  12.02

  
	
   

  	
  (c)

  	
   

  	
  7.01

  
	
   

  	
  (d)

  	
   

  	
  7.01

  
	
   

  	
  (e)

  	
   

  	
  6.11

  
	
  316

  	
  (a) (last sentence)

  	
   

  	
  2.09

  
	
   

  	
  (a)(1)(A)

  	
   

  	
  6.05

  
	
   

  	
  (a)(1)(B)

  	
   

  	
  6.04

  
	
   

  	
  (a)(2)

  	
   

  	
  N.A.

  
	
   

  	
  (b)

  	
   

  	
  6.07

  
	
   

  	
  (c)

  	
   

  	
  2.12

  
	
  317

  	
  (a)(1)

  	
   

  	
  6.08

  
	
   

  	
  (a)(2)

  	
   

  	
  6.09

  
	
   

  	
  (b)

  	
   

  	
  2.04

  
	
  318

  	
  (a)

  	
   

  	
  12.01

  
	
   

  	
  (b)

  	
   

  	
  N.A.

  
	
   

  	
  (c)

  	
   

  	
  12.01

  
					



 










N.A. means not applicable.


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


 





















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  ARTICLE 1

  DEFINITIONS AND INCORPORATION

  BY REFERENCE

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 1.01

  	
   

  	
  Definitions

  	
   

  
	
  Section
  1.02

  	
   

  	
  Other Definitions

  	
   

  
	
  Section
  1.03

  	
   

  	
  Incorporation
  by Reference of Trust Indenture Act

  	
   

  
	
  Section
  1.04

  	
   

  	
  Rules of
  Construction

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE
  2

  THE NOTES

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 2.01

  	
   

  	
  Form and Dating

  	
   

  
	
  Section
  2.02

  	
   

  	
  Execution and
  Authentication

  	
   

  
	
  Section
  2.03

  	
   

  	
  Registrar and
  Paying Agent

  	
   

  
	
  Section
  2.04

  	
   

  	
  Paying Agent to
  Hold Money in Trust

  	
   

  
	
  Section 2.05

  	
   

  	
  Holder Lists

  	
   

  
	
  Section
  2.06

  	
   

  	
  Transfer and
  Exchange

  	
   

  
	
  Section
  2.07

  	
   

  	
  Replacement Notes

  	
   

  
	
  Section
  2.08

  	
   

  	
  Outstanding Notes

  	
   

  
	
  Section 2.09

  	
   

  	
  Treasury Notes

  	
   

  
	
  Section 2.10

  	
   

  	
  Temporary Notes

  	
   

  
	
  Section 2.11

  	
   

  	
  Cancellation

  	
   

  
	
  Section 2.12

  	
   

  	
  Defaulted
  Interest

  	
   

  
	
  Section 2.13

  	
   

  	
  CUSIP Numbers

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE
  3

  REDEMPTION AND PREPAYMENT

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 3.01

  	
   

  	
  Notices to Trustee

  	
   

  
	
  Section 3.02

  	
   

  	
  Selection of Notes to Be Redeemed or
  Purchased

  	
   

  
	
  Section 3.03

  	
   

  	
  Notice of Redemption or Purchase

  	
   

  
	
  Section 3.04

  	
   

  	
  Effect of Notice of Redemption or
  Purchase

  	
   

  
	
  Section 3.05

  	
   

  	
  Deposit of Redemption or Purchase
  Price

  	
   

  
	
  Section 3.06

  	
   

  	
  Notes Redeemed or Purchased in Part

  	
   

  
	
  Section 3.07

  	
   

  	
  Optional Redemption

  	
   

  
	
  Section 3.08

  	
   

  	
  Mandatory
  Redemption

  	
   

  
	
  Section 3.09

  	
   

  	
  Offer to Purchase by Application of
  Excess Proceeds

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE
  4

  COVENANTS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 4.01

  	
   

  	
  Payment of Notes

  	
   

  
	
  Section 4.02

  	
   

  	
  Maintenance of Office or Agency

  	
   

  
	
  Section 4.03

  	
   

  	
  Reports

  	
   

  
	
  Section 4.04

  	
   

  	
  Compliance Certificate

  	
   

  
	
  Section 4.05

  	
   

  	
  Taxes

  	
   

  
	
  Section 4.06

  	
   

  	
  Stay, Extension and Usury Laws

  	
   

  
	
  Section 4.07

  	
   

  	
  Restricted Payments

  	
   

  



 


i





















 


	
  Section 4.08

  	
   

  	
  Dividend and Other Payment
  Restrictions Affecting Subsidiaries

  	
   

  
	
  Section 4.09

  	
   

  	
  Incurrence of Indebtedness and
  Issuance of Disqualified Stock and Preferred Stock

  	
   

  
	
  Section 4.10

  	
   

  	
  Asset Sales

  	
   

  
	
  Section 4.11

  	
   

  	
  Transactions with Affiliates

  	
   

  
	
  Section 4.12

  	
   

  	
  Liens

  	
   

  
	
  Section 4.13

  	
   

  	
  Business Activities

  	
   

  
	
  Section 4.14

  	
   

  	
  Corporate Existence

  	
   

  
	
  Section 4.15

  	
   

  	
  Offer to Repurchase Upon Change of
  Control

  	
   

  
	
  Section 4.16

  	
   

  	
  Payments for Consent

  	
   

  
	
  Section 4.17

  	
   

  	
  No Amendment to Subordination
  Provisions

  	
   

  
	
  Section 4.18

  	
   

  	
  Limitation on Sale and Leaseback
  Transactions

  	
   

  
	
  Section 4.19

  	
   

  	
  Additional Subsidiary Guarantees

  	
   

  
	
  Section 4.20

  	
   

  	
  Designation of Restricted and
  Unrestricted Subsidiaries

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE
  5

  SUCCESSORS  

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Section
  5.01

  	
   

  	
  Merger,
  Consolidation, or Sale of Assets 

  	
   

  
	
  Section
  5.02

  	
   

  	
  Successor
  Corporation Substituted

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE
  6

  DEFAULTS AND REMEDIES

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Section
  6.01

  	
   

  	
  Events of Default

  	
   

  
	
  Section 6.02

  	
   

  	
  Acceleration

  	
   

  
	
  Section 6.03

  	
   

  	
  Other Remedies

  	
   

  
	
  Section
  6.04

  	
   

  	
  Waiver of Past
  Defaults

  	
   

  
	
  Section
  6.05

  	
   

  	
  Control by Majority

  	
   

  
	
  Section
  6.06

  	
   

  	
  Limitation on Suits

  	
   

  
	
  Section
  6.07

  	
   

  	
  Rights of
  Holders to Receive Payment

  	
   

  
	
  Section
  6.08

  	
   

  	
  Collection Suit
  by Trustee

  	
   

  
	
  Section
  6.09

  	
   

  	
  Trustee May
  File Proofs of Claim

  	
   

  
	
  Section 6.10

  	
   

  	
  Priorities

  	
   

  
	
  Section 6.11

  	
   

  	
  Undertaking for Costs

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE
  7

  TRUSTEE

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Section
  7.01

  	
   

  	
  Duties of Trustee

  	
   

  
	
  Section
  7.02

  	
   

  	
  Rights of Trustee

  	
   

  
	
  Section
  7.03

  	
   

  	
  Individual
  Rights of Trustee

  	
   

  
	
  Section
  7.04

  	
   

  	
  Trustee’s
  Disclaimer

  	
   

  
	
  Section
  7.05

  	
   

  	
  Notice of Defaults

  	
   

  
	
  Section
  7.06

  	
   

  	
  Reports by
  Trustee to Holders

  	
   

  
	
  Section
  7.07

  	
   

  	
  Compensation
  and Indemnity

  	
   

  
	
  Section
  7.08

  	
   

  	
  Replacement of
  Trustee

  	
   

  
	
  Section
  7.09

  	
   

  	
  Successor
  Trustee by Merger, etc.

  	
   

  
	
  Section
  7.10

  	
   

  	
  Eligibility;
  Disqualification

  	
   

  
	
  Section
  7.11

  	
   

  	
  Preferential
  Collection of Claims Against Company

  	
   

  



 


ii





















 


	
   

  	
   

  	
  ARTICLE
  8

  LEGAL DEFEASANCE AND COVENANT DEFEASANCE

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Section
  8.01

  	
   

  	
  Option to
  Effect Legal Defeasance or Covenant Defeasance

  	
   

  
	
  Section
  8.02

  	
   

  	
  Legal
  Defeasance and Discharge

  	
   

  
	
  Section
  8.03

  	
   

  	
  Covenant
  Defeasance

  	
   

  
	
  Section
  8.04

  	
   

  	
  Conditions to
  Legal or Covenant Defeasance

  	
   

  
	
  Section
  8.05

  	
   

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

  	
   

  
	
   

  	
   

  	
  Miscellaneous
  Provisions

  	
   

  
	
  Section
  8.06

  	
   

  	
  Repayment to
  Company

  	
   

  
	
  Section 8.07

  	
   

  	
  Reinstatement

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE
  9

  AMENDMENT, SUPPLEMENT AND WAIVER

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Section
  9.01

  	
   

  	
  Without Consent
  of Holders

  	
   

  
	
  Section
  9.02

  	
   

  	
  With Consent of
  Holders

  	
   

  
	
  Section
  9.03

  	
   

  	
  Compliance with
  Trust Indenture Act

  	
   

  
	
  Section
  9.04

  	
   

  	
  Revocation and
  Effect of Consents

  	
   

  
	
  Section
  9.05

  	
   

  	
  Notation on or
  Exchange of Notes

  	
   

  
	
  Section
  9.06

  	
   

  	
  Trustee to Sign
  Amendments, etc.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE
  10

  COLLATERAL AND SECURITY

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Section
  10.01

  	
   

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

  	
   

  
	
  Section
  10.02

  	
   

  	
  Ranking of
  Parity Liens

  	
   

  
	
  Section
  10.03

  	
   

  	
  Release of
  Liens in Respect of Notes

  	
   

  
	
  Section
  10.04

  	
   

  	
  Relative Rights

  	
   

  
	
  Section
  10.05

  	
   

  	
  Compliance with
  Trust Indenture Act

  	
   

  
	
  Section
  10.06

  	
   

  	
  Collateral Trustee

  	
   

  
	
  Section
  10.07

  	
   

  	
  Further
  Assurances; Insurance

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE
  11

  	
   

  
	
   

  	
   

  	
  SUBSIDIARY GUARANTEES

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 11.01

  	
   

  	
  Guarantee

  	
   

  
	
  Section
  11.02

  	
   

  	
  Limitation on
  Guarantor Liability

  	
   

  
	
  Section
  11.03

  	
   

  	
  Execution and
  Delivery of Subsidiary Guarantee

  	
   

  
	
  Section
  11.04

  	
   

  	
  Guarantors May
  Consolidate, etc., on Certain Terms

  	
   

  
	
  Section 11.05

  	
   

  	
  Releases

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE
  12

  	
   

  
	
   

  	
   

  	
  SATISFACTION AND DISCHARGE

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Section
  12.01

  	
   

  	
  Satisfaction
  and Discharge

  	
   

  
	
  Section
  12.02

  	
   

  	
  Application of
  Trust Money

  	
   

  
	
  Section
  12.03

  	
   

  	
  Repayment to
  the Company

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE
  13

  	
   

  
	
   

  	
   

  	
  MISCELLANEOUS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Section
  13.01

  	
   

  	
  Trust Indenture
  Act Controls

  	
   

  
	
  Section 13.02

  	
   

  	
  Notices

  	
   

  



 


iii





















 


	
  Section
  13.03

  	
   

  	
  Communication
  by Holders with Other Holders of Notes

  	
   

  
	
  Section
  13.04

  	
   

  	
  Certificate and
  Option as to Conditions Precedent

  	
   

  
	
  Section
  13.05

  	
   

  	
  Statements
  Required in Certificate or Opinion

  	
   

  
	
  Section
  13.06

  	
   

  	
  Rules by
  Trustee and Agents

  	
   

  
	
  Section
  13.07

  	
   

  	
  No Personal
  Liability of Directors, Officers, Employees and Stockholders

  	
   

  
	
  Section 13.08

  	
   

  	
  Governing Law

  	
   

  
	
  Section
  13.09

  	
   

  	
  No Adverse
  Interpretation of Other Agreements

  	
   

  
	
  Section 13.10

  	
   

  	
  Successors

  	
   

  
	
  Section 13.11

  	
   

  	
  Severability

  	
   

  
	
  Section 13.12

  	
   

  	
  Counterpart
  Originals

  	
   

  
	
  Section
  13.13

  	
   

  	
  Table of Contents,
  Headings, etc.

  	
   

  



 


	
   

  	
   

  	
  EXHIBITS

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Exhibit A1

  	
  FORM OF NOTE

  	
   

  	
   

  
	
  Exhibit A2 

  	
  FORM OF 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 Floating Rate Senior Secured Notes
due 2012 (the “Notes”):


 


ARTICLE I

DEFINITIONS AND
INCORPORATION

BY REFERENCE


 


Section
1.01          Definitions.


 


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


 


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


 


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


 


1





















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


2





















 


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


 


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


 


“Affiliate” of any
specified Person means any other Person directly or indirectly controlling or
controlled by or under direct or indirect common control with such specified
Person. For purposes of this definition, “control,” as used with respect to any
Person, means the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of such Person, whether
through the ownership of voting securities, by agreement or otherwise; provided that beneficial ownership of 10%
or more of the Voting Stock of a Person will be deemed to be control. For
purposes of this definition, the terms “controlling,” “controlled by” and “under
common control with” have correlative meanings.


 


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


 


“Applicable
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 if 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;


 


3





















 


(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;


 


(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 as at such time of determination, 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:


 


(l)  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





















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Calculation Agent” means HSBC Bank USA, National Association and any successor thereto.


 


“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;


 


5





















 


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


 


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


 


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


 


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


 


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


 


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


 


“Casualty Event” means
any taking under power of eminent domain or similar proceeding and any insured
loss, in each case relating to property or other assets that constituted Shared
Collateral.


 


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


 


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


 


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


 


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


 


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


 


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


 


6





















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(4)  depreciation, amortization
(including amortization of intangibles but excluding amortization of prepaid
cash expenses that were paid in a prior period) and other non-cash expenses
(excluding any such non-cash expense to the extent that it represents an accrual
of or reserve for cash expenses in any future period or amortization of a
prepaid cash expense that was paid in a prior period) of such Person and its
Restricted Subsidiaries for such period to the extent that such depreciation,
amortization and other non-cash expenses were deducted in computing such
Consolidated Net Income; plus


 


(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


 


7





















 


such Person for such period. In the event that the specified Person or
any of its Restricted Subsidiaries incurs, assumes, guarantees, repays,
repurchases, redeems, defeases or otherwise discharges any Indebtedness (other
than ordinary working capital borrowings) or issues, repurchases or redeems
Disqualified Stock subsequent to the commencement of the period for which the
Consolidated Coverage Ratio is being calculated and on or prior to the date on
which the event for which the calculation of the Consolidated Coverage Ratio is
made (the “Calculation Date”), then the Consolidated Coverage Ratio will be
calculated giving pro forma effect to such incurrence, assumption, guarantee,
repayment, repurchase, redemption, defeasance or other discharge of
Indebtedness, or such issuance, repurchase or redemption of Disqualified Stock,
and the use of the proceeds therefrom, as if the same had occurred at the
beginning of the applicable four-quarter reference period.


 


In addition, for purposes of calculating the
Consolidated Coverage Ratio:


 


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


 


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


 


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


 


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


 


(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 Parents Entities
plus all Indebtedness of Subsidiaries of any Parent Entity (other than
Unrestricted


 


8





















 


Subsidiaries of the Company), with letters of credit
being deemed to have a principal amount for this purpose equal to the face
amount thereof, whether or not drawn, to:


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“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


 


9





















 


any
agreement, instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that Restricted Subsidiary or its stockholders;


 


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


 


(4)  all goodwill impairment
charges will be excluded;


 


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


 


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


 


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


 


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


 


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


 


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


 


“Credit Agreements” means each of the ABL Facility and the First Lien Term Loan Agreement,
including any related notes, Guarantees, collateral documents, instruments and
agreements executed in connection therewith, and, in each case, as amended,
restated, modified, renewed, refunded, replaced (whether upon or after
termination or otherwise) or refinanced (including by means of a receivables
financing or sales of debt securities to institutional investors) in whole or
in part from time to time, including any agreement extending the maturity of,
refinancing, replacing or otherwise restructuring (including increasing the
amount of available borrowings or letters of credit thereunder or adding
Subsidiaries of the Company as additional borrowers or guarantors thereunder)
all or any portion of the Indebtedness under such agreement or any successor or
replacement agreement and whether by the same or any other agent, lender or
group of lenders.


 


“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.


 


10





















 


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


 


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


 


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


 


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


 


“Determination Date” means, with respect to an Interest Period, the second London Banking
Day preceding the first day of such Interest Period.


 


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


 


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


 


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


 


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


 


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


 


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


 


11





















 


may become obligated to pay upon the maturity of, or pursuant to any
mandatory redemption provisions of, such Disqualified Stock, exclusive of
accrued dividends.


 


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


 


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


 


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


 


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


 


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


 


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


 


12





















 


Shared Collateral by reason of any such enforcement or realization
shall be reduced, and any concurrent or subsequent payment or distribution that
is to be made in cash to the remaining holders of Priority Lien Obligations
from or on account of Shared Collateral by reason of any such enforcement or
realization shall be increased, to the extent necessary to cause the aggregate
amount of all payments and distributions made in cash to all holders of
Priority Lien Obligations (whether made from or on account of Separate
Collateral or from or on account of Shared Collateral) by reason of any such
enforcement or realization to be distributed equally and ratably as fully as if
the Separate Collateral had been Shared Collateral.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“First Lien Term Loan Agreement” means that certain Term Loan Credit and Guaranty Agreement, dated as of
the date hereof, by and among the Company, the guarantors party thereto, the


 


13





















 


lenders party thereto, Goldman Sachs Credit Partners L.P., as
Administrative Agent, Joint Lead Arranger, Joint Bookrunner and Co-Syndication
Agent and UBS Securities LLC, as Joint Lead Arranger, Joint Bookrunner and
Co-Syndication Agent.


 


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


 


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


 


“GAAP” means generally
accepted accounting principles which are in effect on the date of this
Indenture set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as have been approved by a
significant segment of the accounting profession or in the rules and
regulations of the SEC governing the inclusion of financial statements (including
pro forma financial statements) in periodic reports required to be filed
pursuant to Section 13 of the Exchange Act, including opinions and
pronouncements in staff accounting bulletins and similar written statements
from the accounting staff of the SEC.


 


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


 


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


 


“Global Notes” means,
individually and collectively, each of the Restricted Global Notes and the
Unrestricted Global Notes deposited with or on behalf of and registered in the
name of the Depository or its nominee, substantially in the form of Exhibit 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


 


14





















 


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


 


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


 


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


 


(1)  interest rate swap
agreements (whether from fixed to floating or from floating to fixed), interest
rate cap agreements, interest rate collar agreements and other agreements or arrangements
designated for the purpose of fixing, hedging or swapping interest rate risk;


 


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


 


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


 


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


 


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


 


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


 


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


 


(1)  in respect of borrowed
money;


 


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


 


(3)  in respect of banker’s
acceptances;


 


(4)  representing Capital Lease
Obligations;


 


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


 


(6)  representing any Hedging
Obligations,


 


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


 


15





















 


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 $225,000,000 aggregate principal amount of Notes issued under this
Indenture on the date hereof.


 


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


 


“Insolvency or Liquidation Proceeding” means:


 


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


 


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


 


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


 


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


 


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


 


16





















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Interest Period” means,
for purposes of the Notes, the period commencing on and including an interest
payment date and ending on and including the day immediately preceding the next
succeeding interest payment date, with the exception that the first Interest
Period shall commence on and include the date of this Indenture and end on and
include August 1, 2005.


 


“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


 


17





















 


disposes of any Equity Interests of any direct or indirect Restricted
Subsidiary of the Company such that, after giving effect to any such sale or
disposition, such Person is no longer a Subsidiary of the Company, the Company
will be deemed to have made an Investment on the date of any such sale or
disposition equal to the Fair Market Value of the Company’s Investments in such
Subsidiary that were not sold or disposed of in an amount determined as
provided in Section 4.07(c) hereof. Except as otherwise provided in this
Indenture, the amount of an Investment will be determined at the time the
Investment is made and without giving effect to subsequent changes in value.


 


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


 


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


 


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


 


“LIBOR”
means, with respect to an Interest Period, the rate (expressed as a percentage per annum) for deposits in U.S. dollars
for a three month period beginning on the second London Banking Day after the
Determination Date that appears on Telerate Page 3750 as of 11:00 a.m., London
time, on the Determination Date. If Telerate Page 3750 does not include such a
rate or is unavailable on a Determination Date, the Calculation Agent will
request the principal London office of each of four major banks in the London
interbank market, as selected by the Calculation Agent (after consultation with
the Company), to provide such bank’s offered quotation (expressed as a
percentage per annum), as
of approximately 11:00 a.m., London time, on such Determination Date, to prime
banks in the London interbank market for deposits in a Representative Amount in
U.S. dollars for a three month period beginning on the second London Banking
Day after the Determination Date. If at least two such offered quotations are
so provided, the rate for the Interest Period will be the arithmetic mean of
such quotations. If fewer than two such quotations are so provided, the
Calculation Agent will request each of three major banks in New York City, as
selected by the Calculation Agent (after consultation with the Company), to
provide such bank’s rate (expressed as a percentage per
annum), as of
approximately 11:00 a.m., New York City time, on such Determination Date, for
loans in a Representative Amount in U.S. dollars to leading European banks for
a three month period beginning on the second London Banking Day after the
Determination Date. If at least two such rates are so provided, the rate for
the Interest Period will be the arithmetic mean of such rates. If fewer than
two such rates are so provided, then the rate for the Interest Period will be
the rate in effect with respect to the immediately preceding Interest Period.
Notwithstanding the foregoing, LIBOR for the first Interest Period will be
3.17%.


 


“Lien”
means, with respect to any asset, any mortgage, lien, pledge, charge, security
interest or encumbrance of any kind in respect of such asset, whether or not
filed, recorded or otherwise perfected under applicable law, including any
conditional sale or other title retention agreement, any lease in the nature
thereof, any option or other agreement to sell or give a security interest in
such asset.


 


“Lien Sharing and Priority Confirmation” means:


 


(1)           as to any Series of Parity Lien Debt, the written agreement of the
holders of such Series of Parity Lien Debt, as set forth in the indentures,
credit agreement or other agreement


 


18


















 


governing
such Series of Parity Lien Debt, for the enforceable benefit of all holders of
each existing and future Series of Priority Lien Debt and Parity Lien Debt,
each existing and future Priority Lien Representative and Parity Lien
Representative and each existing and future holder of Permitted Liens:


 


(a)           that all Parity Lien Obligations will be and are secured equally and
ratably by all Parity Liens at any time granted by the Company or any Guarantor
to secure any Obligations in respect of such Series of Parity Lien Debt,
whether or not upon property otherwise constituting Shared Collateral for such
Series of Parity Lien Debt, and that all such Parity Liens will be enforceable
by the Collateral Trustee for the benefit of all holders of Parity Lien Obligations
equally and ratably; provided that
the holders of any future Parity Lien Debt that constitutes a “security” for
purposes of the Securities Act of 1933, as amended, will not be entitled to be
secured by any Separate Collateral;


 


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


 


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


 


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


 


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


 


(a)           that all Priority Lien Obligations will be and are secured equally and
ratably by all Priority Liens at any time granted by the Company or any other
Pledgor to secure any Obligations in respect of such Series of Priority Lien
Debt, whether or not upon property otherwise constituting collateral for such
Series of Priority Lien Debt, and that all such Priority Liens will be
enforceable by the Collateral Trustee for the benefit of all holders of
Priority Lien Obligations equally and ratably; provided
that the holders of any future Priority Lien Debt that constitutes a
“security” for purposes of the Securities Act of 1933, as amended, will not be
entitled to be secured by any Separate Collateral;


 


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


 


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


 


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


 


19





















 


“London Banking Day” means any business day in which dealings in
U.S. dollar deposits are transacted in the London interbank market.


 


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


 


“Non-Recourse Debt” means Indebtedness:


 


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


 


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


 


(3)  as to which (a) the explicit
terms provide that there is no recourse against any assets of the Company or
any of its Restricted Subsidiaries or (b) the lenders have been notified in


 


20





















 


writing
that they will not have any recourse to the stock or assets of the Company or
any of its Restricted Subsidiaries.


 


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


 


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


 


“Notes” has the meaning assigned to it in the
preamble to this Indenture. The Initial Notes and any Additional Notes
subsequently issued under this Indenture will be treated as a single class for
all purposes under this Indenture, including, without limitation, waivers,
amendments, redemptions and offers to purchase, and unless the context
otherwise requires, all references to the Notes shall include the Initial Notes
and any Additional Notes.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Parity Lien Debt” means:


 


(1)           the Senior Secured Notes issued on the date of the Senior Secured Note
Indentures (including any related Exchange Notes) and the related Subsidiary
Guarantees and all other


 


21





















 


Obligations
of the Company or the Guarantors under the Senior Secured Note Indentures; and


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Parity Lien Documents” means, collectively, the Note Documents and
the indenture, credit agreement or other agreement governing each other Series
of Parity Lien Debt and the Security Documents (other than any Security
Documents that do not secure Parity Lien Obligations).


 


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


 


“Parity Lien Representative” means:


 


(1)           in the case of each series of the Senior Secured Notes, the applicable
trustee for such series; or


 


(2)           in the case of any other Series of Parity Debt, the trustee, agent or
representative of the holders of such Series of Parity Lien Debt who maintains
the transfer register for such Series of Parity Lien Debt and (a) is appointed
as a Parity Lien Representative (for purposes related to the administration of
the Security Documents) pursuant to an indenture, credit


 


22





















 


agreement
or other agreement governing such Series of Parity Lien Debt, together with its
successors in such capacity, and (b) has become a party to the Collateral Trust
Agreement by executing a joinder in the form required under the Collateral
Trust Agreement.


 


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


 


“Permitted Business” means any business engaged in by the Company
or any of its Restricted Subsidiaries on the date of the original issuance of
the Notes and any business or other activities that are reasonably similar,
ancillary, complementary or related to, or a reasonable extension, development
or expansion of, the businesses in which the Company and its Restricted
Subsidiaries are engaged on the date of original issuance of the Notes.


 


“Permitted Investments” means:


 


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


 


(2)  any Investment in Cash
Equivalents;


 


(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;


 


23





















 


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


 


(9)  repurchases of Senior
Secured Notes;


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Permitted Liens” means:


 


(l)  any Liens held by the
Collateral Trustee securing (A) Priority Lien Debt in an aggregate principal
amount not exceeding the Priority Lien Cap and (B) all related Priority Lien
Obligations;


 


(2)  Liens held by the Collateral
Trustee equally and ratably securing (A) the Senior Secured Notes to be issued
on the date of this Indenture (and the related exchange notes) and all future
Parity Lien Debt that was permitted by all applicable Secured Debt Documents to
be incurred and (B) all related Parity Lien Obligations; provided, that,
notwithstanding the foregoing, any future Parity Lien Debt that does not
constitute a “security” for purposes of the


 


24





















 


Securities
Act of 1933, as amended, will be permitted to be secured by Separate Collateral
pursuant to the clause (2) even if the Liens held by the collateral trustee
securing such Indebtedness do not equally and ratably secure the senior secured
notes to be issued on the date of the senior secured note indentures (and the
related exchange notes) and any future Parity Lien Debt that constitutes a “security”
for purposes of the Securities Act of 1933, as amended.


 


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


 


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


 


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


 


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


 


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


 


(8)  Liens for taxes, assessments
or governmental charges or claims that are not yet delinquent or that are being
contested in good faith by appropriate proceedings promptly instituted and
diligently concluded; provided that any reserve or other
appropriate provision as is required in conformity with GAAP has been made
therefor;


 


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


 


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


 


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


 


(12)  Liens to secure any
Permitted Refinancing Indebtedness permitted to be incurred under this
Indenture (other than Revolving Credit Debt, Parity Debt or Priority Lien
Debt); provided, however, that the new Lien shall be limited
to all or part of the same property and assets


 


25





















 


that
secured or, under the written agreements pursuant to which the Indebtedness
being refinanced arose, could secure the original Lien (plus improvements and accessions to, such
property or proceeds or distributions thereof);


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(1)  payments to any direct or
indirect parent of the Company to permit such direct or indirect parent to pay
reasonable accounting, legal and administrative expenses of such Person when due,
in an aggregate amount for all such Persons not to exceed $2.0 million per annum (or


 


26





















 


$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


 


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


 


27





















 


(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, defeated
or discharged; and


 


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


 


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


 


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


 


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


 


(d)  such Disqualified Stock is
issued either by the Company or by the Restricted Subsidiary who is the issuer
of the Indebtedness or Disqualified Stock being renewed, refunded, refinanced,
replaced, defeased or discharged.


 


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


 


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


 


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


 


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


 


“Priority Lien Cap” means, as of any date, an amount equal to the
sum of (i) the amount permitted to be borrowed on that date under clause (1) of
the definition of Permitted Debt plus (ii)
the amount permitted to be borrowed on that date under clauses (3) and (19) of
the definition of Permitted Debt plus
(iii) up to $75.0 million of additional Indebtedness otherwise permitted to be
incurred plus (iv) an amount
equal to (A) 33% times (B) the Fair Market Value of all Permitted Businesses
acquired by the Company or any of its Restricted Subsidiaries since the date of
this Indenture (measured as of the date of their respective acquisitions and
without giving effect to subsequent changes in value) reduced by the Fair
Market Value of ABL Collateral held by such businesses on the date acquired less (y) the amount of Revolving Credit
Debt outstanding on that date and less (z)
the amount of Parity Lien Debt incurred after


 


28





















 


the date of this Indentures the net proceeds of which are used to repay
Priority Lien Debt (it being understood that, for the purposes of this
provision, no assets acquired in any acquisition will be considered to have a
Fair Market Value in excess of $300.0 million unless an opinion as to the Fair
Market Value of such acquired Permitted Businesses and such ABL Collateral has
been provided by an accounting, appraisal or investment banking firm of
national standing). For purposes of this definition, all letters of credit will
be valued at the face amount thereof, whether or not drawn and all Hedging
Obligations will be valued at zero.


 


“Priority Lien Debt” means:


 


(1)           Indebtedness of the Company (which may be guaranteed by the Guarantors)
under the First Lien Term Loan Agreement that was permitted to be incurred and
secured under each applicable Secured Debt Document (or as to which the lenders
under such credit agreement obtained an Officers’ Certificate at the time of
incurrence to the effect that such Indebtedness was permitted to be incurred
and secured by all applicable Secured Debt Documents);


 


(2)           any other Indebtedness of the Company (which may be guaranteed by the
Guarantors) that is secured by a Priority Lien that was permitted to be
incurred and so secured under each applicable Secured Debt Document; provided, in the case of
any Indebtedness referred to in this clause (2), that:


 


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


 


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


 


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


 


(3)           Hedging Obligations of the Company (which may be guaranteed by the
Guarantors) incurred to hedge or manage interest rate risk with respect to
Priority Lien Debt or Parity Lien Debt, or to protect the Company against
fluctuations in currency exchange rates or commodity prices; provided that:


 


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


 


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


 


29





















 


“Priority Lien Documents” means the First Lien Term Loan Agreement and any other indenture,
credit agreement or other agreement pursuant to which any Priority Lien Debt is
incurred and the related Security Documents (other than any Security Documents
that do not secure Priority Lien Obligations).


 


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


 


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


 


“Pro Forma 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)(l) hereof to be placed on
all Notes issued under this Indenture except where otherwise permitted by the
provisions of this Indenture.


 


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


 


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


 


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


 


(1)  Cash Equivalents; and


 


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


 


“Qualified Receivables Transaction” means any transaction or series of transactions that may be entered
into by the Company or any Restricted Subsidiary pursuant to which the Company
or any Restricted Subsidiary may sell, convey, contribute to capital or
otherwise transfer to a Receivables Entity, or may grant a security interest in
or pledge, any Receivables or interests therein and any assets related


 


30





















 


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 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:


 


31





















 


(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.


 


“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.


 


32





















 


“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).


 


“Representative
Amount” means a principal amount of not less than
$1,000,000 for a single transaction in the relevant market at the relevant
time.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Revolving
Credit Agent” means, at any time:


 


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


 


(2)           in the case of any other revolving credit Indebtedness, the trustee,
agent or representative of the holders of such revolving credit Indebtedness
who maintains the transfer register for such revolving credit Indebtedness and
(a) is appointed as a Revolving Credit Agent (for


 


33





















 


purposes
related to the administration of the Security Documents) pursuant to the
agreement governing such revolving credit Indebtedness, together with its
successors in such capacity, and (b) has become a party to the Collateral Trust
Agreement by executing a joinder in the form required under the Collateral
Trust Agreement.


 


“Revolving
Credit Debt” means:


 


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


 


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


 


provided further that no Indebtedness will be considered to be “Revolving Credit Debt”
if on the date it was incurred the aggregate principal amount of all
outstanding Revolving Credit Debt exceeds the Revolving Credit Debt Cap as of
such date (unless the lenders under the applicable Credit Facility obtained an
Officers’ Certificate at or before the time of incurrence to the effect that
such Indebtedness was permitted
to be incurred and secured by all applicable Secured Debt Documents).


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


34





















 


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


 


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


 


“SEC” means the Securities and Exchange Commission.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(3)           the Interest Expense attributable to discontinued operations, as
determined in accordance with GAAP, and operations or businesses (and ownership
interests therein) disposed of prior to the Leverage Calculation Date, will be
excluded, but only to the extent that the


 


35





















 


obligations
giving rise to such Interest Expense will not be obligations of the specified
Person or any of its Restricted Subsidiaries following the Leverage Calculation
Date;


 


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


 


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


 


(6)           if any Indebtedness bears a floating rate of interest, the interest
expense on such Indebtedness will be calculated as if the rate in effect on the
Leverage Calculation Date had been the applicable rate for the entire period
(taking into account any Hedging Obligation applicable to such Indebtedness if
such Hedging Obligation has a remaining term as at the Leverage Calculation
Date in excess of 12 months).


 


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


 


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


 


“Security
Documents” means the Collateral Trust Agreement, the
Intercreditor Agreement, each Lien Sharing and Priority Confirmation, and all
security agreements, pledge agreements, collateral assignments, mortgages,
deeds of trust, collateral agency agreements, control agreements or other
grants or transfers for security executed and delivered by the Company or any
other Pledgor creating (or purporting to create) a Lien upon Collateral in
favor of the Collateral Trustee, in each case, as amended, modified, renewed,
restated or replaced, in whole or in part, from time to time, in accordance
with its terms and the provisions of Section 8.1 of the Collateral Trust
Agreement.


 


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


 


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


 


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


 


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


 


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


 


36





















 


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


 


“Series of
Priority Lien Debt” means, severally, the Indebtedness
outstanding under the First Lien Term Loan Agreement and any other Credit
Facility that constitutes Priority Lien Debt.


 


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


 


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


 


(1)           Separate Collateral;


 


(2)           ABL Collateral;


 


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


 


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


 


provided that, in the case of clauses (3) and (4), if such Liens are required to
be released as a result of the sale, transfer or other disposition of any
properties or assets of the Company or any other Pledgor, such assets or
properties will cease to be excluded from the Collateral if the Company or any
other Pledgor thereafter acquires or reacquires such assets or properties.


 


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


 


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


 


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


 


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


 


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


 


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


 


37





















 


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


 


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


 


(2)  any partnership (a) the sole
general partner or the managing general partner of which is such Person or a
Subsidiary of such Person or (b) the only general partners of which are that Person
or one or more Subsidiaries of that Person (or any combination thereof); provided, however, that notwithstanding the foregoing,
Rumford L.P. shall not constitute a Subsidiary of the Company, unless and until
the Company directly or indirectly acquires all of the limited partner interests
in Rumford L.P.


 


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


 


“Telerate Page
3750” means
the display designated at “Page 3750” on the Moneyline Telerate service (or
such other page as may replace Page 3750 on that service).


 


“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.


 


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


 


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


 


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


 


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


 


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


 


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


 


(2)  except as permitted by
Section 4.11 hereof, is not party to any agreement, contract, arrangement or
understanding with the Company or any Restricted Subsidiary of the Company


 


38





















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 1.02           Other Definitions.


 


	
  Term

  	
   

  	
  Defined

  in

  Section

  
	
  “Affiliate Transaction”

  	
   

  	
  4.11

  
	
  “Asset Sale Offer”

  	
   

  	
  3.09

  
	
  “Authentication Order”

  	
   

  	
  2.02

  
	
  “Change of Control Offer”

  	
   

  	
  4.15

  
	
  “Change of Control Payment”

  	
   

  	
  4.15

  
	
  “Change of Control Payment Date”

  	
   

  	
  4.15

  
	
  “Covenant Defeasance”

  	
   

  	
  8.03

  
	
  “DTC”

  	
   

  	
  2.03

  
	
  “Event of Default”

  	
   

  	
  6.01

  
	
  “Excess Proceeds”

  	
   

  	
  4
  10

  
	
  “incur”

  	
   

  	
  4.09

  
	
  “Legal Defeasance”

  	
   

  	
  8.02

  
	
  “Offer Amount”

  	
   

  	
  3.09

  
	
  “Offer Period”

  	
   

  	
  3
  09

  
	
  “Paying Agent”

  	
   

  	
  2.03

  
	
  “Payment Default”

  	
   

  	
  6.01

  



 


39





















 


	
  Term

  	
   

  	
  Defined

  in

  Section

  
	
  “Permitted Debt”

  	
   

  	
  4.09

  
	
  “Purchase Date”

  	
   

  	
  3.09

  
	
  “Redemption Date”

  	
   

  	
  3.07

  
	
  “Registrar”

  	
   

  	
  2.03

  
	
  “Restricted Payments”

  	
   

  	
  4.07

  



 


Section 1.03           Incorporation by Reference
of Trust Indenture Act.


 


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


 


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


 


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


 


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


 


“indenture to be
qualified” means this Indenture;


 


“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.


 


40


















 


ARTICLE 2


THE NOTES


 


Section
2.01           Form and Dating.


 


(a)           General. The
Notes and the Trustee’s certificate of authentication will be substantially in the
form of Exhibits Al and A2 hereto. The Notes may have notations, legends or
endorsements required by law, stock exchange rule or usage to which the Company
is subject, if any. Each Note will be dated the date of its authentication. The
Notes shall be issued in denominations of $2,000 and integral multiples of
$1,000 in excess of $2,000.


 


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


 


(b)           Global Notes. Notes issued in
global form will be substantially in the form of Exhibits Al or A2 hereto
(including the Global Note Legend thereon and the “Schedule of Exchanges of
Interests in the Global Note” attached thereto). Notes issued in definitive
form will be substantially in the form of Exhibit A1 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 thereof.


 


(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


 


41





















 


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


 


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


 


Section 2.02           Execution and Authentication.


 


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


 


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


 


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


 


42





















 


the
Company fails to appoint or maintain another entity as Registrar or Paying
Agent, the Trustee shall act as such. The Company or any of its Subsidiaries
may act as Paying Agent or Registrar.


 


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


 


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


 


Section 2.04           Paying Agent to Hold Money in Trust.


 


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


 


43





















 


Period
and (B) the receipt by the Registrar of any certificates required pursuant to
Rule 903(b)(3)(ii)(B) under the Securities Act; or


 


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


 


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


 


(b)           Transfer
and Exchange of Beneficial Interests in the Global Notes. The
transfer and exchange of beneficial interests in the Global Notes will be
effected through the Depositary, in accordance with the provisions of this
Indenture and the Applicable Procedures. Beneficial interests in the Restricted
Global Notes will be subject to restrictions on transfer comparable to those
set forth herein to the extent required by the Securities Act. None of the
Company, the Trustee nor any agent of the Company or the Trustee will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial interests of a Global Note or
maintaining, supervising or 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)(l).


 


(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


 


44





















 


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


 


(B)
both:


 


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


 


(ii)            instructions
given by the Depositary to the Registrar containing information regarding the
Person in whose name such Definitive Note shall be registered to effect the
transfer or exchange referred to in (1) above; provided
that in no event shall Definitive Notes be issued upon the transfer
or exchange of beneficial interests in the Regulation S Temporary Global Note
prior to (A) the expiration of the Restricted Period and (B) the receipt by the
Registrar of any certificates required pursuant to Rule 903 under the
Securities Act.


 


Upon consummation of an
Exchange Offer by the Company in accordance with Section 2.06(f) hereof, the
requirements of this Section 2.06(b)(2) shall be deemed to have been satisfied
upon receipt by the Registrar of the instructions contained in the Letter of
Transmittal delivered by the Holder of such beneficial interests in the
Restricted Global Notes. Upon satisfaction of all of the requirements for
transfer or exchange of beneficial interests in Global Notes contained in this
Indenture and the Notes or otherwise applicable under the Securities Act, the
Trustee shall adjust the principal amount of the relevant Global Note(s)
pursuant to Section 2.06(h) hereof.


 


(3)  Transfer of Beneficial Interests to Another Restricted Global Note.  A beneficial interest in any
Restricted Global Note may be transferred to a Person who takes delivery
thereof in the form of a beneficial interest in another Restricted Global Note
if the transfer complies with the requirements of Section 2.06(b)(2) above and
the Registrar receives the following:


 


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


 


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


 


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


 


(A)  such
exchange or transfer is effected pursuant to the Exchange Offer in accordance
with the Registration Rights Agreement and the holder of the beneficial
interest to be transferred, in the case of an exchange, or the transferee, in
the case of a


 


45





















 


transfer,
certifies in the applicable Letter of Transmittal that it is not (i) a
Broker-Dealer, (ii) a Person participating in the distribution of the Exchange
Notes or (iii) a Person who is an affiliate (as defined in Rule 144) of the
Company;


 


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


 


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


 


(D)
 the Registrar receives the following:


 


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


 


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


 


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;


 


46





















 


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


 


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


 


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


 


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


 


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


 


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


 


47





















 


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


 


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


 


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


 


(D)  the Registrar receives the following:


 


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


 


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


 


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


 


48





















 


delivery
thereof in the form of a beneficial interest in a Restricted Global Note, then,
upon receipt by the Registrar of the following documentation:


 


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


 


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


 


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


 


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


 


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


 


(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


 


49





















 


(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
(l)(c) thereof; or


 


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


 


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


 


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


 


(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:


 


50





















 


(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, men the
transferor must deliver a certificate in the form of Exhibit B hereto,
including the certifications, certificates and Opinion of Counsel required by
item (3) thereof, if applicable.


 


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


 


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


 


51





















 


the
form of an Unrestricted Definitive Note. Upon receipt of a request to register
such a transfer, the Registrar shall register the Unrestricted Definitive Notes
pursuant to the instructions from the Holder thereof.


 


(f)           Exchange Offer. Upon the occurrence of the Exchange Offer in accordance with
the Registration Rights Agreement, the Company will issue and, upon receipt of
an Authentication Order in accordance with Section 2.02 hereof and the
documents required by Section 13.04 hereof, the Trustee will authenticate:


 


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


 


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


 


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.”


 


52





















 


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


 


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


 


“THIS GLOBAL NOTE
IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR
ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS
NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE
TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.01
AND SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED
IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (3)
THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11
OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR
DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.


 


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


 


53





















 


endorsement will be made
on such Global Note by the Trustee or by the Depositary at the direction of the
Trustee to reflect such reduction; and if the beneficial interest is being
exchanged for or transferred to a Person who will take delivery thereof in the
form of a beneficial interest in another Global Note, such other Global Note
will be increased accordingly and an endorsement will be made on such Global
Note by the Trustee or by the Depositary at the direction of the Trustee to
reflect such increase.


 


(i) General Provisions Relating to Transfers and
Exchanges.


 


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


 


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


 


(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.


 


54





















 


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


 


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


 


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


 


Section 2.07  Replacement
Notes.


 


If any mutilated Note is surrendered to the Trustee or
the Company and the Trustee receives evidence to its satisfaction of the
destruction, loss or theft of any Note, the Company will issue and the Trustee,
upon receipt of an Authentication Order, will authenticate a replacement Note of
like tenor and principal amount and bearing a number not contemporaneously
outstanding if the Trustee’s requirements 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.


 


55





















 


Section 2.09  Treasury
Notes.


 


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


 


Section 2.10  Temporary
Notes.


 


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


 


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.


 


56





















 


Section 2.13  CUSIP
Numbers


 


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


 


ARTICLE 3


REDEMPTION AND PREPAYMENT


 


Section 3.01  Notices to
Trustee.


 


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


 


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


 


(2)
the redemption or purchase date;


 


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


 


(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


 


57





















 


multiple of $1,000 equal
to or in excess of $2,000, shall be redeemed or purchased. Except as provided
in the preceding sentence, provisions of this Indenture that apply to Notes called
for redemption or purchase also apply to portions of Notes called for
redemption or purchase.


 


Section 3.03  Notice of
Redemption or Purchase.


 


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


 


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


 


(1) the
redemption or purchase date;


 


(2)
the redemption or purchase price;


 


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


 


58





















 


Section 3.04  Effect of
Notice of Redemption or Purchase.


 


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


 


Section 3.05  Deposit of
Redemption or Purchase Price.


 


On or prior to 10:00 am Eastern Time on any redemption
or purchase date, the Company will deposit with the Trustee or with the Paying
Agent money sufficient to pay the redemption or purchase price of and accrued
interest and Special Interest, if any, on all Notes to be redeemed or purchased
on that date. The Trustee or the Paying Agent will promptly, and in any event
within two Business Days after the redemption or purchase date, return to the
Company any money deposited with the Trustee or the Paying Agent by the Company
in excess of the amounts necessary to pay the redemption or purchase price of,
and accrued interest and Special Interest, if any, on, all Notes to be redeemed
or purchased.


 


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


 


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 100%, plus LIBOR on the date of redemption,
plus 6.25%, 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.


 


59





















 


(b)          Except
pursuant to clause (a) 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

  	
   

  	
  103.00

  	
  %

  
	
  2010

  	
   

  	
  101.50

  	
  %

  
	
  2011
  and thereafter

  	
   

  	
  100.00

  	
  %

  






 


(d)          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.


 


(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 cash, in whose name a Note is registered at
the close of business on such record date, and no additional interest will be
payable to Holders who tender Notes pursuant to the Asset Sale Offer.


 


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


 


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


 


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


 


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


 


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


 


(5) that Holders electing to have any Notes purchased
pursuant to an Asset Sale Offer may elect to have such Notes purchased in
denominations of $2,000 or integral multiples of $1,000 in excess of $2,000
only;


 


(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


 


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withdrawn,
an amount equal to the purchase price of the Notes tendered by such Holder and
accepted by the Company for purchase, and the Company will promptly issue a new
Note, and the Trustee, upon written request from the Company, will authenticate
and mail or deliver (or cause to be transferred by book entry) such new Note to
such Holder, in a principal amount equal to any unpurchased portion of the Note
surrendered; provided that each new Note will be in a
principal amount of $2,000 or integral multiples of $1,000 in excess of $2,000.
Any Note not so accepted shall be promptly mailed or delivered by the Company
to the Holder thereof. The Company will publicly announce the results of the
Asset Sale Offer on, or as soon as practicable after, the Purchase Date.


 


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


 


ARTICLE 4


COVENANTS


 


Section 4.01  Payment of
Notes.


 


The Company will pay or cause to be paid the principal
of, premium, if any, and interest and Special Interest, if any, on the Notes on
the dates and in the manner provided in the Notes. Principal, 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


 


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


 


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


 


Section 4.03  Reports.


 


(a)           Whether or
not required by the rules and regulations of the SEC, so long as any Notes are
outstanding, the Company will furnish to the Holders or cause the Trustee to
furnish to the Holders, within the time periods specified in the SEC’s rules
and regulations (together with extensions granted by the SEC):


 


(1) all quarterly and annual reports that would be
required to be filed with the SEC on Forms 10-Q and

10-K if the Company were required to file such reports; and


 


(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,


 


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of the financial
condition and results of operations of the Company and its Restricted
Subsidiaries separate from the financial condition and results of operations of
the Unrestricted Subsidiaries of the Company.


 


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


 


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


 


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.


 


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Section 4.05  Taxes.


 


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


 


Section 4.06  Stay,
Extension and Usury Laws.


 


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


 


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;


 


65





















 


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


 


(E) 50% of any dividends received by the Company or a
Restricted Subsidiary of the Company that is a Guarantor after the date of this
Indenture from an Unrestricted Subsidiary of the Company, to the extent that
such dividends were not otherwise included in the Consolidated Net Income of
the Company for such period.


 


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


 


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


 


(2) the making of any Restricted Payment in exchange
for, or out of the net cash proceeds of the substantially concurrent sale
(other than to a Subsidiary of the Company) of, Equity


 


66





















 


Interests
of the Company (other than Disqualified Stock) or from the substantially
concurrent contribution of common equity capital to the Company; provided that the amount of any such net cash proceeds that are utilized
for any such Restricted Payment will be excluded from clause (3)(B) of Section 4.07(a)
hereof and shall not constitute Excluded Contributions;


 


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


 


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


 


(5) so long as no Default has occurred and is
continuing or would be caused thereby, 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;


 


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


 


(8) Permitted Payments to Parent;


 


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


 


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(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:


 


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


 


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


 


(3) sell, lease or transfer any of its properties or
assets to the Company or any of its Restricted Subsidiaries.


 


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


 


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


 


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


 


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


 


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


 


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


 


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(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;


 


(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.


 


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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 of 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”):


 


(1) the incurrence by the Company (and the Guarantee
thereof by the Guarantors) of revolving credit Indebtedness and letters of
credit under Credit Facilities in an aggregate principal amount at any one time
outstanding under this clause (1) (with letters of credit being deemed to have
a principal amount equal to the maximum potential liability of the Company and
its Restricted Subsidiaries thereunder) not to exceed the greater of:


 


(A) $350.0 million less
the aggregate amount of all Net Proceeds of Asset Sales or Casualty
Events applied by the Company or any of its Restricted Subsidiaries since the
date of this Indenture to repay any revolving credit Indebtedness under a
Credit Facility and effect a corresponding commitment reduction 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 or Casualty Events applied by the Company or any of its Restricted
Subsidiaries since the date of this Indenture to repay any revolving credit
Indebtedness under a Credit Facility and effect a corresponding commitment
reduction thereunder pursuant to Section 4.10 hereof plus the amount of any reasonable fees, underwriting discounts, premiums,
prepayment penalties


 


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and other costs
and expenses incurred in connection with extending, refinancing, renewing,
replacing or refunding any Credit Facility or any Indebtedness incurred
pursuant to this clause (2);


 


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


 


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


 


(5) the incurrence by the Company and the Guarantors of Indebtedness
represented by the Senior Secured Notes and the Senior Subordinated Notes and
their related Guarantees to be issued on the date hereof, the Senior Secured
Note Indentures, the Senior Subordinated Note Indenture and the related
Exchange Notes and the related Guarantees to be issued pursuant to the
Registration Rights Agreement;


 


(6) the incurrence by the Company or any of its Restricted Subsidiaries
of Attributable Debt in connection with a Sale/Leaseback Transaction or
Indebtedness represented by Capital Lease Obligations, mortgage financings or
purchase money obligations, in each case, incurred for the purpose of financing
all or any part of the purchase price or cost of design, development,
construction, installation or improvement of property, plant or equipment used
in the business of the Company or any of its Restricted Subsidiaries, in an
aggregate principal amount at any time outstanding, including all Permitted
Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease
or discharge any Indebtedness incurred pursuant to this clause (6), not to
exceed 3% of Total Assets on the date of incurrence;


 


(7) the incurrence by the Company or any of its Restricted Subsidiaries
of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of
which are used to renew, refund, refinance, replace, defease or discharge any
Indebtedness (other than intercompany Indebtedness) that was permitted by this
Indenture to be incurred under Section 4.09(a) hereof or clauses (4), (5),
(6), (17), (18) or (19) of this Section 4.09(b);


 


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


 


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


 


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


 


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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;


 


(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));


 


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(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, defease or discharge any Indebtedness
incurred pursuant to this clause (18), not to exceed an amount equal to 100% of
the Net Cash Proceeds received by the Company from the issuance or sale (other
than to a Subsidiary of the Company) of its Capital Stock (other than
Disqualified Stock) or as a contribution to the equity capital of the Company
(other than as Disqualified Stock), in each case subsequent to the date of the
indenture; provided, however, that such Net Cash Proceeds shall
be excluded from clause (3)(B) of Section 4.07(a) and shall not constitute
Excluded Contributions; and


 


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


 


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


 


(d)           For
purposes of determining compliance with this Section 4.09, in the event
that an item of proposed Indebtedness meets the criteria of more than one of
the categories of Permitted Debt described in clauses (1) through (19) above,
or is entitled to be incurred pursuant to Section 4.09(a) hereof, the
Company (in its sole discretion) will be permitted to classify such item of
Indebtedness on the date of its incurrence, or later reclassify all or a portion
of such item of Indebtedness, in any manner that complies with this Section 4.09.
Indebtedness under Credit Facilities outstanding on the date on which Notes are
first issued and authenticated under this Indenture will initially be deemed to
have been incurred on such date in reliance on the exceptions provided by
clauses (1) and (3) of Section 4.09(b). The accrual of interest, the
accretion or amortization of original issue discount, the payment of interest
on


 


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any Indebtedness
in the form of additional Indebtedness with the same terms, the
reclassification of preferred stock as Indebtedness due to a change in
accounting principles, and the payment of dividends on Disqualified Stock or
preferred stock in the form of additional shares of the same class of
Disqualified Stock or preferred stock will not be deemed to be an incurrence of
Indebtedness or an issuance of Disqualified Stock or preferred stock for
purposes of this Section 4.09; provided, in each such case, that the amount
of any such accrual, accretion or payment is included in Interest Expense of
the Company as accrued. Notwithstanding any other provision of this Section 4.09,
the maximum amount of Indebtedness that the Company or any Restricted Subsidiary
may incur pursuant to this Section 4.09 shall not be deemed to be exceeded
solely as a result of fluctuations in exchange rates or currency values.


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 4.10  Asset Sales.


 


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


 


(1)      the Company (or
the Restricted Subsidiary, as the case may be) receives consideration at the
time of the Asset Sale at least equal to the Fair Market Value of the assets or
Equity Interests issued or sold or otherwise disposed of; and


 


(2)      at least 75% of
the consideration received in the Asset Sale by the Company or such Restricted
Subsidiary is in the form of cash. For purposes of this provision (but not the
definition of Net Proceeds), each of the following will be deemed to be cash:


 


(A)    Cash Equivalents;


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(c)            Any
Net Proceeds from Asset Sales or Casualty Events that are not applied or
invested as provided in Section 4.10(b) will constitute Excess Proceeds.
When the aggregate amount of Excess Proceeds exceeds $20.0 million, within ten
days thereof, the Company will make an Asset Sale Offer in accordance with the
procedures set forth in Section 3.09 to all Holders and all holders of
other Parity Lien Debt containing provisions similar to those set forth in this
Indenture with respect to offers to purchase or redeem with the proceeds of
sales of assets in accordance with Section 3.09 hereof to purchase the
maximum principal amount of Notes and such other Parity Lien Debt that may be
purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer
will be equal to 100% of the principal amount


 


76





















 


plus accrued and unpaid
interest and Special Interest, if any, to the date of purchase and will be
payable in cash. If any Excess Proceeds remain after consummation of an Asset
Sale Offer, the Company may use those Excess Proceeds for any purpose not
otherwise prohibited by this Indenture. If the aggregate principal amount of
the Notes and other Parity Lien Debt tendered into such Asset Sale Offer
exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and
such other Parity Lien Debt to be purchased on a pro rata basis.
Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be
reset at zero.


 


(d)           The
Company will comply with the requirements of Rule 14e-l under the Exchange Act
and any other securities laws and regulations thereunder to the extent those
laws and regulations are applicable in connection with 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


 


(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


 


77





















 


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;


 


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


 


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


 


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


 


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


 


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


 


Section 4.12  Liens.


 


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


 


Section 4.13  Business
Activities.


 


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


 


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 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;


 


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


 


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


 


(1) accept for payment all Notes or portions of Notes
properly tendered and not withdrawn pursuant to the Change of Control Offer;


 


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


 


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


 


The Company, the
Depositary, or the Paying Agent, as the case may be, will promptly (but in any
case not later than five days after the Change of Control Payment Date) mail to
each Holder of Notes properly tendered, and not withdrawn, the Change of
Control Payment for such Notes, and the Trustee


 


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will promptly
authenticate and mail (or cause to be transferred by book entry) to each Holder
a new Note equal in principal amount to any unpurchased portion of the Notes
surrendered, if any; provided that
each new Note will be in denominations of $2,000 or integral multiples of
$1,000 in excess of $2,000. The Company will publicly announce the results of
the Change of Control Offer on or as soon as practicable after the Change of
Control Payment Date.


 


(c)           Notwithstanding
anything to the contrary in this Section 4.15, the Company will not be
required to make a Change of Control Offer upon a Change of Control if (1) a
third party makes the Change of Control Offer in the manner, at the times and
otherwise in compliance with the requirements set forth in this Section 4.15
hereof and purchases all Notes properly tendered and not withdrawn under the
Change Control Offer, or (2) notice of redemption has been given pursuant to Section 3.07
hereof, unless and until there is a default in payment of the applicable
redemption price. A Change of Control Offer may be made in advance of a Change
of Control, conditional upon such Change of Control, if a definitive agreement
is in place for the Change of Control at the time of making of the Change of
Control Offer. Notes repurchased pursuant to a Change of Control Offer will be
retired and cancelled.


 


Section 4.16  Payments
for Consent.


 


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


 


Section 4.17  No
Amendment to Subordination Provisions


 


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


 


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


 


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


 


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


 


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


 


Section 4.18  Limitation
on Sate and Leaseback Transactions


 


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


 


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


 


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


 


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


 


Section 4.19  Additional
Subsidiary Guarantees.


 


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


 


Section 4.20  Designation
of Restricted and Unrestricted Subsidiaries.


 


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


 


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


 


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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;


 


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


 


(3) failure by the
Company or any of its Restricted Subsidiaries for 30 days after notice to the
Company by the Trustee or the Holders of at least 25% in aggregate principal
amount of the Notes, including Additional Notes, if any, then outstanding to
comply with the provisions of Sections 4.10, 4.15 or 5.01 hereof;


 


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


 


(5) default under
any mortgage, indenture or instrument under which there may be issued or by which
there may be secured or evidenced any Indebtedness for money borrowed by the
Company, any Restricted Subsidiary of the Company that is a Significant
Subsidiary or any group of Restricted Subsidiaries of the Company that, taken
together, would constitute a Significant


 


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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 alter 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 occurrence of any
of the following:


 


(A) except as permitted
by this Indenture, any Security Document is held in any judicial proceeding to
be unenforceable or invalid or ceases for any reason to be in full force or
effect; provided, that it will not be an Event of
Default under this clause (7)(a) if the sole result of the failure of one or
more Security Documents to be fully enforceable is that any Parity Lien
purported to be granted under such Security Documents on Shared Collateral,
individually or in the aggregate, having a Fair Market Value of not more than
$25.0 million ceases to be an enforceable and perfected second-priority Lien,
subject only to Permitted Liens;


 


(B) any Parity Lien
purported to be granted under any Security Document on Shared Collateral,
individually or in the aggregate, having a Fair Market Value in excess of $25.0
million ceases to be an enforceable and perfected second-priority Lien (subject
only to Permitted Liens) for any reason other than a failure of the Collateral
Trustee or any of its agents to take any action within its control; or


 


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


 


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


 


(A) commences a voluntary
case,


 


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


 


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


 


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


 


(E) generally is not
paying its debts as they become due;


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 6.02  Acceleration.


 


In the case of an Event of Default specified in clause (8) or (9) of
Section 6.01 hereof, with respect to the Company, any Restricted Subsidiary of
the Company that is a Significant Subsidiary or any group of Restricted
Subsidiaries of the Company that, taken together, would constitute a
Significant Subsidiary, all outstanding Notes will become due and payable
immediately without further action or


 


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notice. If any
other Event of Default occurs and is continuing, the Trustee or the Holders of
at least 25% in aggregate principal amount of the then outstanding Notes may
declare all the Notes to be due and payable immediately; provided that so long as any Indebtedness permitted to be incurred
pursuant to the Credit Facilities is outstanding, such acceleration will not be
effective until the earlier of (1) the acceleration of such Indebtedness under
the Credit Facilities or (2) five Business Days after receipt by the Company of
written notice of such acceleration.


 


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


 


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


 


Section 6.03  Other
Remedies.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 6.07  Rights of
Holders to Receive Payment.


 


Notwithstanding any other provision of this Indenture, the right of any
Holder to receive payment of principal, premium and Special Interest, if any,
and interest on the Note, on or after the respective due dates expressed in the
Note (including in connection with an offer to purchase), or to bring suit for
the 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


 


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any plan of
reorganization or arrangement or otherwise. Nothing herein contained shall be
deemed to authorize the Trustee to authorize or consent to or accept or adopt
on behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder, or to authorize
the Trustee to vote in respect of the claim of any Holder in any such
proceeding.


 


Section 6.10 Priorities.


 


If the Trustee collects any money pursuant to this Article 6, to the
extent such money is not required to be paid to the Collateral Trustee for
application in accordance with the Collateral Trust Agreement, it shall pay out
the money in the following order:


 


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


 


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


 


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


 


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


 


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Indenture and no others, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and


 


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


 


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


 


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


 


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


 


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


 


(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.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 7.03  Individual
Rights of Trustee.


 


The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may otherwise deal with the Company or any
Affiliate of the Company with the same rights it would have if it were not
Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the SEC for
permission to continue as trustee (if this


 


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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.


 


Section 7.06  Reports by
Trustee to Holders.


 


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


 


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


 


Section 7.07  Compensation
and Indemnity.


 


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


 


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


 


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Collateral Trust
Agreement against the Company and the Guarantors (including this Section 7.07)
and defending itself against any claim (whether asserted by the Company, the
Guarantors, any Holder or any other Person) or liability in connection with the
exercise or performance of any of its powers or duties hereunder, except to the
extent any such loss, liability or expense may be attributable to its
negligence, bad faith or willful misconduct. The Trustee will notify the
Company promptly of any claim for which it may seek indemnity. Failure by the
Trustee to so notify the Company will not relieve the Company or any of the
Guarantors of their obligations hereunder. The Company or such Guarantor will
defend the claim and the Trustee will cooperate in the defense. The Trustee may
have separate counsel and the Company and/or Guarantors will pay the reasonable
fees and expenses of such counsel. Neither the Company nor any Guarantor need pay
for any settlement made without its consent, which consent will not be
unreasonably withheld.


 


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


 


(d)                                 To
secure the Company’s and the Guarantors’ payment obligations in this Section
7.07, the Trustee will have a Lien prior to the Notes on all money or property
held or collected by the Trustee, except that held in trust to pay principal
and interest on particular Notes, Such Lien will survive the resignation or
removal of the Trustee and the satisfaction and discharge of this Indenture.


 


(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 expanses of its agents
and counsel) are intended to constitute expenses of administration under any
Bankruptcy Law.


 


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


 


Section 7.08  Replacement
of Trustee.


 


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


 


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


 


(l) 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.


 


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(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.


 


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.


 


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Section 8.02  Legal
Defeasance and Discharge.


 


Upon the Company’s exercise under Section 8.01 hereof of the option
applicable to this Section 8.02, the Company and each of the Guarantors will,
subject to the satisfaction of the conditions set forth in Section 8.04 hereof,
be deemed to have been discharged from their obligations with respect to all
outstanding Notes (including the Subsidiary Guarantees) on the date the
conditions set forth below are satisfied (hereinafter, “Legal Defeasance”). For
this purpose, Legal Defeasance means that the Company and the Guarantors will
be deemed to have paid and discharged the entire Indebtedness represented by
the outstanding Notes (including the Subsidiary Guarantees), which will
thereafter be deemed to be “outstanding” only for the purposes of Section 8.05
hereof and the other Sections of this Indenture referred to in clauses (1) and
(2) below, and to have satisfied all their other obligations under such Notes,
the Subsidiary Guarantees and this Indenture (and the Trustee, on demand of and
at the expense of the Company, shall execute proper instruments acknowledging
the same), except for the following provisions which will survive until
otherwise terminated or discharged hereunder:


 


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


 


(2) the Company’s
obligations with respect to such Notes under Article 2 concerning issuing
temporary notes, registration of notes, mutilated, destroyed, lost or stolen
notes and Section 4.02 hereof;


 


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


 


(4) this Article
8.


 


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


 


Section 8.03  Covenant
Defeasance.


 


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


 


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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,


 


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;


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 8.06  Repayment
to Company.


 


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


 


Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of, premium or
Special Interest, if any, or interest on, any Note and remaining unclaimed for
two years after such principal, premium or Special Interest, if any, or
interest has become due and payable shall be paid to the Company on its request
or (if then held by the Company) will be discharged from such trust; and the
Holder of such Note will thereafter be permitted to look only to the Company
for payment thereof, and all liability of the Trustee or such Paying Agent with
respect to


 


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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, detect or inconsistency;


 


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


 


(3) to provide for
the assumption of the Company’s or a Guarantor’s obligations to the Holders of
the Notes and Subsidiary Guarantees in the case of a merger or consolidation or
sale of all or substantially all of the Company’s or Guarantor’s assets, as
applicable;


 


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


 


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


 


(6) to conform the
text of this Indenture, the Subsidiary Guarantees or the Notes to any provision
of the “Description of Senior Secured Notes” section of the Offering Circular,
to the extent that such provision in that “Description of Senior Secured Notes”
was intended to be a verbatim recitation of a provision of this Indenture, the
Subsidiary Guarantees or the Notes;


 


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


 


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


 


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


 


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


 


Upon the request of the Company accompanied by a resolution of its
Board of Directors authorizing the execution of any such amended or
supplemental indenture, and upon receipt by the Trustee of the documents
described in Section 7.02 and 13.04 hereof, the Trustee will join with the
Company and the Guarantors in the execution of any amended or supplemental
indenture authorized or permitted by the terms of this Indenture and to make
any further appropriate agreements and stipulations that may be herein
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 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.


 


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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);


 


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


 


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


 


In addition, any amendment to, or waiver of, the provisions of this
Indenture or any Security Document that has the effect of releasing all or
substantially all of the Shared Collateral from the Liens securing the Notes
issued under this Indenture will require the consent of the Holders of at least
662/3% in aggregate principal amount of the then
outstanding Notes (including, without limitation, Additional Notes, if any) voting as a single class.


 


Section 9.03  Compliance
with Trust Indenture Act.


 


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


 


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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


COLLATERAL AND SECURITY


 


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


 


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


 


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


 


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


 


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


 


Section 10.02  Ranking of Parity Liens.


 


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


 


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


 


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


 


Section 10.03  Release of
Liens in Respect of Notes.


 


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


 


(a) upon satisfaction and discharge of this Indenture as set forth
under Article 12 hereof;


 


(b) upon a Legal Defeasance or Covenant Defeasance of the Notes as set
forth under Article 8 hereof;


 


(c) upon payment in full and discharge of all Notes outstanding under
this Indenture and all Obligations that are outstanding, due and payable under
this Indenture at the time the Notes are paid in full and discharged; or


 


(d) in whole or in
part, with the consent of the Holders of the requisite percentage of Notes in accordance
with Article 9 hereof.


 


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Section 10.04  Relative
Rights.


 


Nothing in the Note Documents shall:


 


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


 


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


 


(c) restrict the right of any Holder of Notes to sue for payments that
are then due and owing (but not enforce any judgment in respect thereof against
any Collateral to the extent specifically prohibited under Sections 2.6 and 2.8
of the Collateral Trust Agreement);


 


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


 


(e) restrict or prevent any Holder of Notes or any holder of other
Parity Lien Obligations, the Collateral Trustee or any Parity Lien
Representative from taking any lawful action in an Insolvency or Liquidation
proceeding not specifically restricted or prohibited by Sections 2.6 and 2.8 of
the Collateral Trust Agreement.


 


Section 10.05  Compliance
with Trust Indenture Act.


 


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


 


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


 


Section 10.06  Collateral Trustee.


 


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


 


(1) the Notes;


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 10.07  Further
Assurances; Insurance.


 


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


 


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


 


(b) The Company and the other Pledgors shall:


 


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


 


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


 


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


 


(4) maintain the
title insurance, in the form delivered to the collateral trustee on the date of
the Senior Secured Note Indentures on all existing real property Collateral and
with respect to real property acquired after the date of the Senior Secured
Note Indentures, maintain title insurance in form and substance comparable to
the title insurance policies in effect on the date of the Senior Secured Note
Indentures, on all such after acquired real property Collateral insuring the
Collateral Trustee’s Lien on that property, subject only to Permitted Liens and
other exceptions to title approved by the Priority Lien Representative as long
as there is Priority Lien


 


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Debt outstanding and
thereafter, the Collateral Trustee; provided that title insurance need only be
maintained on any particular parcel of real property having a Fair Market Value
of less than $ 10.0 million if and to the extent title insurance is maintained
in respect of Priority Liens on that property; and


 


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


 


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


 


ARTICLE 11


SUBSIDIARY GUARANTEES


 


Section 11.01  Guarantee.


 


(a)                                  Subject
to this Article 11, each of the Guarantors hereby, jointly and severally,
unconditionally guarantees to each Holder authenticated and delivered by the
Trustee and to the Trustee and its successors and assigns, irrespective of the
validity and enforceability of this Indenture, the Notes or the Obligations of
the Company hereunder or thereunder, that:


 


(1) the principal
of, premium and Special Interest, if any, and interest on, the Notes will be
promptly paid in full when due, whether at maturity, by acceleration,
redemption or otherwise (including any interest, if lawful, on overdue
principal of, and interest, or Special Interest, if any, on the Notes), and all
other Obligations of the Company to the Holders or the Trustee hereunder or
under the Notes will be promptly paid in full or performed, all in accordance
with the terms hereof and thereof; and


 


(2) in case of any
extension of time of payment or renewal of any Notes or any of such other
Obligations, that same will be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise.


 


Failing
payment when due of any amount so guaranteed or any performance so guaranteed
for whatever reason, the Guarantors will be jointly and severally obligated to
pay the same immediately. Each Guarantor agrees that this is a guarantee of
payment and not a guarantee of collection.


 


(b)                                 The
Guarantors hereby agree that their obligations hereunder are unconditional,
irrespective of the validity, regularity or enforceability of the Notes or this
Indenture, the absence of any action to enforce the same, any waiver or consent
by any Holder with respect to any provisions hereof or thereof, the recovery of
any judgment against the Company, any action to enforce the same or any other
circumstance which might otherwise constitute a legal or equitable discharge or
defense of a guarantor. Each Guarantor hereby waives diligence, presentment,
demand of payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against the
Company, protest, notice and all demands whatsoever and covenant that this
Subsidiary Guarantee will not be discharged except by complete performance of
the obligations contained in the Notes and this Indenture.


 


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(c)                                  If
any Holder or the Trustee is required by any court or otherwise to return to
the Company, the Guarantors or any custodian, trustee, liquidator or other
similar official acting in relation to either the Company or the Guarantors,
any amount paid by either to the Trustee or such Holder, this 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  Limitation
on Guarantor Liability.


 


Each Guarantor, and by its acceptance of Notes, each Holder, hereby
confirms that it is the intention of all such parties that the Subsidiary
Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance
for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the
Uniform Fraudulent Transfer Act or any similar federal or state law to the
extent applicable to any Subsidiary Guarantee. To effectuate the foregoing
intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree
that the obligations of such Guarantor will be limited to the maximum amount
that will, after giving effect to such maximum amount and all other contingent
and fixed liabilities of such Guarantor that are relevant under such laws, and
after giving effect to any collections from, rights to receive contribution
from or payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under this Article 11, result in the
obligations of such Guarantor under its Subsidiary Guarantee not constituting a
fraudulent transfer or conveyance.


 


Section 11.03  Execution
and Delivery of Subsidiary Guarantee.


 


To evidence its Subsidiary Guarantee set forth in Section 11.01 hereof,
each Guarantor hereby agrees that a notation of such Subsidiary Guarantee
substantially in the form attached as Exhibit E hereto will be endorsed by an
Officer of such Guarantor on each Note authenticated and delivered by the
Trustee and that this Indenture will be executed on behalf of such Guarantor by
one of its Officers.


 


Each Guarantor hereby agrees that its Subsidiary Guarantee set forth in
Section 11.01 hereof will remain in full force and effect notwithstanding any
failure to endorse on each Note a notation of such Subsidiary Guarantee.


 


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


 


The delivery of any Note
by the Trustee, after the authentication thereof hereunder, will constitute due
delivery 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


 


106





















 


cause such
Domestic Subsidiary to comply with the provisions of Section 4.18 hereof and
this Article 11, to the extent applicable.


 


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


 


Except as otherwise provided in Section 11.05 hereof, no Guarantor may
sell or otherwise dispose of all or substantially all of its assets to, or
consolidate with or merge with or into (whether or not such Guarantor is the
surviving Person) another Person, other than the Company or another Guarantor,
unless:


 


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


 


(2) either:


 


(a) the Person
acquiring the property in any such sale or disposition or the Person formed by
or surviving any such consolidation or merger unconditionally assumes all the
obligations of that Guarantor under this Indenture, its Subsidiary Guarantee
and the Registration Rights Agreement on the terms set forth herein or therein,
pursuant to a supplemental indenture in form and substance reasonably
satisfactory to the Trustee; or


 


(b) the Net
Proceeds of such sale or other disposition are applied in accordance with the
applicable provisions of this Indenture, including without limitation, Sections
3.09 and 4.10 hereof.


 


In case of any such consolidation, merger, sale or conveyance and upon
the assumption by the successor Person, by supplemental indenture, executed and
delivered to the Trustee and satisfactory in form to the Trustee, of the
Subsidiary Guarantee endorsed upon the Notes and the due and punctual
performance of all of the covenants and conditions of this Indenture to be
performed by the Guarantor, such successor Person will succeed to and be
substituted for the Guarantor with the same effect as if it had been named
herein as a Guarantor. Such successor Person thereupon may cause to be signed
any or all of the Subsidiary Guarantees to be endorsed upon all of the Notes
issuable hereunder which theretofore shall not have been signed by the Company
and delivered to the Trustee. All the Subsidiary Guarantees so issued will in all respects have the
same legal rank and benefit under this Indenture as the Subsidiary Guarantees
theretofore and thereafter issued in accordance with the terms of this Indenture
as though all of such Subsidiary Guarantees had been issued at the date of the
execution hereof.


 


Except as set forth in Articles 4 and 5 hereof, and notwithstanding
clauses 2(a) and (b) above, nothing contained in this Indenture or in any of
the Notes will prevent any consolidation or merger of a Guarantor with or into
the Company or another Guarantor, or will prevent any sale or conveyance of the
property of a Guarantor as an entirety or substantially as an entirety to the
Company or another Guarantor.


 


Section 11.05  Releases.


 


(a)                                  In
the event of any sale or other disposition of all or substantially all of the
assets of any Guarantor, by way of merger, consolidation or otherwise, or a
sale or other disposition of all of the Capital Stock of any Guarantor, in each
case to a Person that is not (either before or after giving effect to such
transactions) the Company or a Restricted Subsidiary of the Company, then such
Guarantor (in the event of a sale or other disposition, by way of merger,
consolidation or otherwise, of all of the Capital Stock of such Guarantor) or
the corporation acquiring the property (in the event of a sale or other
disposition of all or substantially all of the assets of such Guarantor) will
be released and relieved of any obligations under its Subsidiary Guarantee; provided that such sale or other disposition complies with the


 


107





















 


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 11.05 will remain liable for the full
amount of principal of and interest and premium and Special Interest, if any,
on the Notes and for the other Obligations of any Guarantor under this
Indenture as provided in this Article 11.


 


ARTICLE 12


SATISFACTION AND
DISCHARGE


 


Section 12.01  Satisfaction
and Discharge.


 


This Indenture will be discharged and will cease to be of further
effect as to all Notes issued hereunder, when:


 


(1) either:


 


(a) all Notes that
have been authenticated, except lost, stolen or destroyed Notes that have been
replaced or paid and Notes for whose payment money has been deposited in trust
and thereafter repaid to the Company, have been delivered to the Trustee for
cancellation; or


 


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


 


(2) no Default or
Event of Default has occurred and is continuing on the date of such deposit
(other than a Default or Event of Default resulting from the borrowing of funds
to be applied to such deposit) and the deposit will not result in a breach or
violation of, or constitute a default under, any other instrument to which the
Company or any Guarantor is a party or by which the Company or any Guarantor is
bound;


 


108





















 


(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.


 


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


 


109





















 


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

  
	
   

  
	
  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;


 


110





















 


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.


 


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;


 


111





















 


(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.


 


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.


 


112





















 


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]


 


113





















 


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

  
	
   

  	
   

  	
   

  
	
   

  	
  MEAD WESTVACO MARYLAND INC. (TO BE NAMED

  PAPER COMPANY)

  
	
  LUKE

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Peter H. Vogel

  
	
   

  	
   

  	
  Name: Peter H. Vogel

  
	
   

  	
   

  	
  Title: President

  
	
   

  	
   

  	
   

  
	
   

  	
  MEAD WESTVACO OXFORD CORPORATION (TO BE

  NAMED RUMFORD PAPER COMPANY)

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Peter H. Vogel

  
	
   

  	
   

  	
  Name: Peter H. Vogel

  
	
   

  	
   

  	
  Title: President

  



 


Floating Indenture


 





















 


	
   

  	
  WICKLIFFE PAPER COMPANY

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Linda M.
  Sheffield

  
	
   

  	
   

  	
  Name: Linda M. Sheffield

  
	
   

  	
   

  	
  Title: Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
  MEAD WESTVACO 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 

  	
   

  
	
   

  
	
  Floating Rate Senior
  Secured Notes due 2012

  
	
   

  
	
  No.

  	
   

  	
  $ 

  	
   

  
	
   

  	 

	
  NEWPAGE CORPORATION

  	 

	
   

  	 

	
  promises to pay to
  [      ] or registered assigns,

  	 

	
   

  	 

	
  the principal sum of

  	
   

  	
  DOLLARS on May 1, 2012.

  	 

	
   

  	 

	
  Interest Payment Dates:
  February 1, May 1, August 1 and November 1

  	 

	
   

  	 

	
  Record Dates: January
  15, April 15, July 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]


Floating Rate Senior
Secured Notes due 2012


 


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


 


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


 


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


 


(1)  INTEREST.  NewPage Corporation, a Delaware
corporation (the “Company”), promises to pay interest
on the principal amount of this Note at a rate per
annum, reset
quarterly, equal to LIBOR plus 6.25%, as determined by the Calculation Agent,
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 interest rate on the Notes will be reset
quarterly, on every February 1, May 1, August 1 and November 1, commencing on
August 1, 2005. The Company will pay interest and Special Interest, if any, in
arrears on February 1, May 1, August 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 August 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.


 


The Calculation Agent
will, upon the request of any Holder, provide the interest rate then in effect
with respect to the floating rate senior secured notes. All calculations made
by the Calculation Agent in the absence of manifest error will be conclusive
for all purposes and binding on the Company, the Guarantors, and the Holders.


 


The amount of interest
for each day that the Notes are outstanding (the “Daily Interest Amount”)
will be calculated by dividing the interest rate in effect for such day
by 360 and multiplying the result by the principal amount of the Notes then
outstanding. The amount of interest to be paid on the Notes for each Interest
Period will be calculated by adding the Daily Interest Amounts for each day in
the Interest Period. All percentages resulting from any of the above
calculations will be rounded, if necessary, to the nearest one hundred
thousandth of a percentage point, with five one-millionths of a percentage
point being rounded upwards (e.g., 9.876545% (or 0.09876545) being rounded to
9.87655% (or 0.0987655)) and all dollar amounts used in or resulting from such
calculations will be rounded to the nearest cent (with one-half cent being
rounded upwards).


 


(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


 


A-2





















 


business on the January
15, April 15, July 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.


 


(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 subparagraph (b) 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

  	
   

  	
  103.00

  	
  %

  
	
  2010

  	
   

  	
  101.50

  	
  %

  
	
  2011 and
  thereafter

  	
   

  	
  100.00

  	
  %

  



 


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


 


A-3


















 


(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 100%, plus LIBOR on the date of redemption, plus 6.25%, of the principal amount
thereof, plus accrued and unpaid interest and Special Interest, if any to the
redemption date; with the net cash proceeds of one or more Equity Offerings by
the Company or a contribution to the common equity capital of the Company from
the net proceeds of one or more Equity Offerings by a direct or indirect parent
of the Company; provided that:


 


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


 


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


 


(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


 


A-4





















 


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 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 TLA, to conform the text
of the Indenture or the Notes to any provision of the “Description of Senior
Secured Notes” section of the Company’s Offering Circular dated April 22,
2005, relating to the initial offering of the Notes, to the extent that such
provision in that “Description of Senior Secured Notes” was intended to be a
verbatim recitation of a provision of the Indenture, the Subsidiary Guarantees
or the Notes, or to provide for the issuance of Additional Notes in accordance
with the limitations set forth in the Indenture, or to allow any Guarantor to
execute a supplemental indenture to the Indenture and/or a Subsidiary Guarantee
with respect to the Notes, or to comply with the rules of any applicable
securities depository.


 


A-5





















 


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


 


(13) TRUSTEE DEALINGS WITH COMPANY.  The
Trustee, in its individual or any other capacity, may make loans to, accept
deposits from, and perform services for the Company or its Affiliates, and may
otherwise deal with the Company or its Affiliates, as if it were not the
Trustee subject to the relevant provisions of the TIA.


 


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


 


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


 


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


 


(17) ADDITIONAL RIGHTS OF HOLDERS OF
RESTRICTED GLOBAL NOTES AND RESTRICTED DEFINITIVE NOTES.  In addition to the rights provided to
Holders under the Indenture, Holders of Restricted Global Notes and Restricted
Definitive Notes will have all the rights set forth in the


 


A-6





















 


Registration Rights Agreement dated as of May 2,
2005, among the Company, the Guarantors and the other parties named on the
signature pages thereof or, in the case of Additional Notes, Holders of
Restricted Global Notes and Restricted Definitive Notes will have the rights
set forth in one or more registration rights agreements, if any, among the
Company, the Guarantors and the other parties thereto, relating to rights given
by the Company and the Guarantors to the purchasers of any Additional Notes
(collectively, the “Registration Rights Agreement”).


 


(18) CUSIP
NUMBERS.  Pursuant
to a recommendation promulgated by the Committee on Uniform Security
Identification Procedures, the Company has caused CUSIP numbers to be printed
on the Notes, and the Trustee may use CUSIP numbers in notices of redemption as
a convenience to Holders. No representation is made as to the accuracy of such
numbers either as printed on the Notes or as contained in any notice of
redemption, and reliance may be placed only on the other identification numbers
placed thereon.


 


(19) GOVERNING
LAW.  THE
INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THE
INDENTURE, THIS NOTE AND THE SUBSIDIARY GUARANTEES WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS
OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.


 


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


 


NewPage Corporation


Courthouse Plaza, NE


Dayton, OH 45463


Attention: Chief Financial Officer


 


A-7





















 


ASSIGNMENT FORM


 


To assign this Note, fill in the form below:


 


	
  (I) or (we) assign and transfer this Note
  to:                                                                                                                                                                    

  
	
   

  	
  (Insert assignee’s legal name)

  
	
   

  
	
   

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

  
	
   

  
	
   

  
	
   

  
	
   

  
	
   

  
	
   

  
	
   

  
	
   

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

  
	
   

  
	
  and irrevocably appoint                                                                                                                                                                                                     

  
	
  to transfer this Note on the books of the Company. The agent may
  substitute another to act for him.

  



 


	
  Date:                                        

  	
   

  
	
   

  
	
   

  	
  Your Signature: 

  	
   

  
	
   

  	
                               (Sign
  exactly as your name appears on the face of this Note)

  
	
   

  	
   

  	
   

  	
   

  
	
  Signature Guarantee*: 

  	
   

  	
   

  
						



 


*              Participant
in a recognized Signature Guarantee Medallion Program (or other signature
guarantor acceptable to the Trustee).


 


A-8





















 


OPTION OF HOLDER TO ELECT PURCHASE


 


If you want to
elect to have this Note purchased by the Company pursuant to Section 4.10
or 4.15 of the Indenture, check the appropriate box below:


 




	
  o Section 4.10

  	
   

  	
  o Section 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 

  	
   

  
	
   

  
	
  Floating Rate Senior Secured Notes due 2012

  
	
   

  
	
  No.

  	
   

  	
  $

  	
   

  
	
   

  
	
  NEWPAGE CORPORATION

  
	
   

  
	
  promises
  to pay to [        ] or registered
  assigns,

  
	
   

  
	
  the principal sum of                                                                                                                                                   

  	
  DOLLARS
  on May l, 2013.

  
	
   

  
	
  Interest
  Payment Dates: February l, May 1, August 1 and November 1

  
	
   

  
	
  Record
  Dates: January 15, April 15, July 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]


Floating Rate Senior Secured Notes due 2012


 


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


 


THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY
(AS DEFINED IN THE INDENTURE GOVERNING THlS 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 DEPOSlTARY 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 a rate per annum, reset
quarterly, equal to LIBOR plus 6.25%, as
determined by the Calculation Agent, 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 interest rate on the Notes
will be reset quarterly, on every February 1, May 1, August 1
and November 1, commencing on August 1, 2005. The Company will pay interest
and Special Interest, if any, in arrears on February 1, May 1, August 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 August 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.


 


The Calculation Agent will, upon the
request of any Holder, provide the interest rate then in effect with respect to
the floating rate senior secured notes. All calculations made by the
Calculation Agent in the absence of manifest error will be conclusive for all
purposes and binding on the Company, the Guarantors, and the Holders.


 


The amount of interest for each day that
the Notes are outstanding (the “Daily Interest Amount”) will be calculated by dividing the
interest rate in effect for such day by 360 and multiplying the result by the
principal amount of the Notes then outstanding. The amount of interest to be
paid on the Notes for each Interest Period will be calculated by adding the
Daily Interest Amounts for each day in the Interest Period. All percentages
resulting from any of the above calculations will be rounded, if necessary, to
the nearest one hundred thousandth of a percentage point, with five
one-millionths of a percentage point being rounded upwards (e.g., 9.876545% (or
0.09876545) being rounded to 9.87655% (or 0.0987655)) and all dollar amounts
used in or resulting from such calculations will be rounded to the nearest cent
(with one-half cent being rounded upwards). 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 January 15, April 15, July 15 and October 15 next
preceding the Interest Payment


 


A2-3





















 


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.


 


(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
subparagraph (b) 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

  	
   

  	
  103.00

  	
  %

  
	
  2010

  	
   

  	
  101.50

  	
  %

  
	
  2011 and
  thereafter

  	
   

  	
  100.00

  	
  %

  



 


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


 


(b) Notwithstanding the provisions of
subparagraph (a) of this Paragraph 5, at any time prior to May 1,
2008, the Company may on any one or more occasions redeem up to


 


A2-4





















 


30% of the aggregate principal amount of Notes
issued under the Indenture at a redemption price equal to 100%, plus LIBOR on
the date of redemption, plus 6.25%, of the principal amount thereof, plus
accrued and unpaid interest and Special Interest, if any to the redemption
date; with the net cash proceeds of one or more Equity Offerings by the Company
or a contribution to the common equity capital of the Company from the net
proceeds of one or more Equity Offerings by a direct or indirect parent of the
Company; provided that:


 


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


 


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


 


(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.


 


A2-5





















 


(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 Indenture.  The Registrar and the Trustee may require a
Holder, among other things, to furnish appropriate endorsements and transfer
documents and the Company will require a Holder to pay any taxes and fees
required by law or permitted by the Indenture. 
The Company need not exchange or register the transfer of any Note or
portion of a Note selected for redemption, except for the unredeemed portion of
any Note being redeemed in part.  Also,
the Company need not exchange or register the transfer of any Notes for a
period of 15 days before the mailing of a notice of redemption of Notes to be
redeemed or during the period between a record date and the next succeeding
Interest Payment Date.


 


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


 


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


 


(11) AMENDMENT,
SUPPLEMENT AND WAIVER.  Subject to certain
exceptions, the Indenture or the Notes or the Subsidiary Guarantees may be
amended or supplemented with the consent of the Holders of at least a majority
in aggregate principal amount of the then outstanding Notes including
Additional Notes, if any, voting as a single class, subject to Section 6.04
and 6.07 of the Indenture, and any existing Default or Event of Default or
compliance with any provision of the Indenture or the Notes or the Subsidiary
Guarantees may be waived with the consent of the Holders of a majority in
aggregate principal amount of the then outstanding Notes including Additional
Notes, if any, voting as a single class. 
Without the consent of any Holder, the Indenture or the Notes or the
Subsidiary Guarantees may be amended or supplemented to cure any ambiguity,
defect or inconsistency, to provide for uncertificated Notes in addition to or
in place of certificated Notes, to provide for the assumption of the Company’s
or a Guarantor’s obligations to Holders of the Notes and Subsidiary Guarantees
in case of a merger or consolidation, to make any change that would provide any
additional rights or benefits to the Holders or that does not adversely affect
the legal rights under the Indenture of any such Holder, to comply with the
requirements of the SEC in order to effect or maintain the qualification of the
Indenture under the TIA, to conform the text of the Indenture or the Notes to
any provision of the “Description of Senior Secured Notes” section of the
Company’s Offering Circular dated April 22, 2005, relating to the initial
offering of the Notes, to the extent that such provision in that “Description
of Senior Secured Notes” was intended to be a verbatim recitation of a
provision of the Indenture, the Subsidiary Guarantees or the Notes, or to
provide for the issuance of Additional


 


A2-6





















 


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


 


(13) TRUSTEE
DEALINGS WITH COMPANY.  The
Trustee, in its individual or any other capacity, may make loans to, accept
deposits from, and perform services for the Company or its Affiliates, and may
otherwise deal with the Company or its Affiliates, as if it were not the
Trustee subject to the relevant provisions of the TIA.


 


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


 


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


 


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


 


A2-7





















 


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


 


(18) CUSIP
NUMBERS.  Pursuant
to a recommendation promulgated by the Committee on Uniform Security
Identification Procedures, the Company has caused CUSIP numbers to be printed
on the Notes, and the Trustee may use CUSIP numbers in notices of redemption as
a convenience to Holders. No representation is made as to the accuracy of such
numbers either as printed on the Notes or as contained in any notice of
redemption, and reliance may be placed only on the other identification numbers
placed thereon.


 


(19) GOVERNING
LAW.  THE
INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THE
INDENTURE, THIS NOTE AND THE SUBSIDIARY GUARANTEES WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS
OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.


 


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


 


 


NewPage Corporation 

Courthouse Plaza, NE 

Dayton, OH 45463 

Attention: Chief Financial Officer


 


A2-8





















 


ASSIGNMENT FORM


 


To assign this Note, fill in the form below:


 


	
  (I) or (we) assign and transfer this Note
  to:

  	
   

  
	
   

  	
  (Insert assignee’s legal name)

  
	
   

  
	
   

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

  
	
   

  
	
   

  
	
   

  
	
   

  
	
   

  
	
   

  
	
   

  
	
   

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

  
	
   

  
	
  and irrevocably appoint

  	
   

  
	
  to transfer this Note on the books of the
  Company. The agent may substitute another to act for him.

  
			



 


	
  Date:

  	
   

  	
   

  
	
   

  
	
   

  	
  Your Signature: 

  	
   

  
	
   

  	
  (Sign exactly as your name appears on the face
  of this Note)

  
	
   

  	
   

  	
   

  	
   

  
	
  Signature
  Guarantee*:

  	
   

  	
   

  	
   

  
									



 


*              Participant
in a recognized Signature Guarantee Medallion Program (or other signature
guarantor acceptable to the Trustee).


 


A2-9





















 


 


OPTION OF HOLDER
TO ELECT PURCHASE


 


If you want to elect to have this Note
purchased by the Company pursuant to Section 4.10 or 4.15 of the
Indenture, check the appropriate box below:


 




	
  o Section 4.10

  	
   

  	
  o Section 4.l5

  






 


If you want to elect to have only part of
the Note purchased by the Company pursuant to Section 4.10 or Section 4.15
of the Indenture, state the amount you elect to have purchased:


 


	
  $ 

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  
	
   

  
	
   

  	
  Your Signature: 

  	
   

  
	
   

  	
  (Sign exactly as your name appears on the
  face of this Note)

  
	
   

  	
   

  
	
   

  	
  Tax Identification No.: 

  	
   

  
	
   

  	
   

  	
   

  
	
  Signature Guarantee*:

  	
   

  	
   

  	
   

  
												



 


*                    Participant in a
recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the
Trustee).


 


A2-10





















 


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


 


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


 


	
  Date
  of Exchange

  	
   

  	
  Amount of

  decrease in

  Principal Amount

  [at maturity] of

  this Global Note

  	
   

  	
  Amount of

  increase in

  Principal Amount

  [at maturity] of

  this Global Note

  	
   

  	
  Principal Amount

  [at maturity] of

  this Global Note

  following such

  decrease

  (or increase)

  	
   

  	
  Signature of

  authorized

  signatory of

  Trustee or

  Custodian

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


A2-11





















EXHIBIT B


 


FORM OF
CERTIFICATE OF TRANSFER


 


NewPage Corporation 

Courthouse Plaza, NE 

Dayton, OH 45463


 


<in
form of>


 


HSBC Bank USA, National
Association 

452 Fifth Avenue 

New York, NY 10018


 


Re: Floating Rate Senior Secured Notes Due
May 1, 2012


 


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


 


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


 


[CHECK ALL THAT
APPLY]


 


1.   o                  Check if Transferee will take
delivery of a beneficial interest in the 144A Global Note or a Restricted
Definitive Note pursuant to Rule 144A. The Transfer is
being effected pursuant to and in accordance with Rule 144A under the
Securities Act of 1933, as amended (the “Securities Act”), and, accordingly, the Transferor hereby further
certifies that the beneficial interest or Definitive Note is being transferred
to a Person that the Transferor reasonably believes is purchasing the
beneficial interest or Definitive Note for its own account, or for one or more
accounts with respect to which such Person exercises sole investment
discretion, and such Person and each such account is a “qualified institutional
buyer” within the meaning of Rule 144A in a transaction meeting the
requirements of Rule 144A, and such Transfer is in compliance with any
applicable blue sky securities laws of any state of the United States. Upon
consummation of the proposed Transfer in accordance with the terms of the Indenture,
the transferred beneficial interest or Definitive Note will be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the 144A Global Note and/or the Restricted Definitive Note and in the Indenture
and the Securities Act.


 


2.   o                  Check if Transferee will take
delivery of a beneficial interest in the Regulation S Temporary Global Note,
the Regulation S Permanent Global Note or a Restricted Definitive Note pursuant
to Regulation S. The Transfer is being effected pursuant to and
in accordance with Rule 903 or Rule 904 under the Securities Act and,
accordingly, the Transferor hereby further certifies that (i) the Transfer
is not being made to a Person in the United States and (x) at the time the buy
order was originated, the Transferee was outside the United States or such
Transferor and any Person acting on its behalf reasonably believed and believes
that the Transferee was outside the United States or (y) the transaction was
executed in, on or through the facilities of a designated offshore securities
market and neither such Transferor nor any Person acting on its behalf knows
that the transaction was prearranged with a buyer in the United States,
(ii) no directed selling efforts have been made in contravention of the
requirements of Rule 903(b) or Rule 904(b) of Regulation S
under the Securities Act, (iii) the transaction


 


B-1





















 


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


 


3.   o                  Check and complete if Transferee
will take delivery of a beneficial interest a Restricted Definitive Note
pursuant to any provision of the Securities Act other than Rule 144A or
Regulation S. The Transfer is being effected in compliance with the transfer
restrictions applicable to beneficial interests in Restricted Global Notes and
Restricted Definitive Notes and pursuant to and in accordance with the
Securities Act and any applicable blue sky securities laws of any state of the
United States, and accordingly the Transferor hereby further certifies that
(check one):


 


(a)   o             such Transfer is
being effected pursuant to and in accordance with Rule 144 under the
Securities Act;


 


or


 


(b)   o            such Transfer is
being effected to the Company or a subsidiary thereof;


 


or


 


(c)   o             such Transfer is
being effected pursuant to an effective registration statement under the
Securities Act and in compliance with the prospectus delivery requirements of
the Securities Act;


 


4.   o                  Check if Transferee will
take delivery of a beneficial interest in an Unrestricted Global Note or of 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: Floating Rate Senior
Secured Notes Due May 1, 2012


 


(CUSIP                    )


 


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


 


                                                              , (the “Owner”) owns and proposes to exchange the Note[s] or
interest in such Note[s] specified herein, in the principal amount of $                  
in such Note[s] or interests (the “Exchange”). In
connection with the Exchange, the Owner hereby certifies that:


 


1.                    Exchange of Restricted
Definitive Notes or Beneficial Interests in a Restricted Global Note for
Unrestricted Definitive Notes or Beneficial Interests in an Unrestricted Global
Note


 


(a)   o              Check if Exchange is from beneficial interest in a Restricted Global
Note to beneficial interest in an Unrestricted Global Note. In connection with
the Exchange of the Owner’s beneficial interest in a Restricted Global Note for
a beneficial interest in an Unrestricted Global Note in an equal principal
amount, the Owner hereby certifies (i) the beneficial interest is being
acquired for the Owner’s own account without transfer, (ii) such Exchange
has been effected in compliance with the transfer restrictions applicable to
the Global Notes and pursuant to and in accordance with the Securities Act of
1933, as amended (the “Securities Act”), (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and
(iv) the beneficial interest in an Unrestricted Global Note is being
acquired in compliance with any applicable blue sky securities laws of any
state of the United States.


 


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


 


(c)   o              Check if Exchange is from Restricted Definitive Note to beneficial
interest in an Unrestricted Global Note. In connection with the Owner’s Exchange
of a Restricted Definitive Note for a beneficial interest in an Unrestricted
Global Note, the Owner hereby certifies (i) the beneficial interest is
being acquired for the Owner’s own account without transfer, (ii) such
Exchange has been effected in


 


C-1





















 


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


 


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


 


2.                       Exchange of Restricted
Definitive Notes or Beneficial Interests in Restricted Global Notes for
Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes


 


(a)   o           Check if Exchange is from beneficial interest in a Restricted Global
Note to Restricted Definitive Note.  In
connection with the Exchange of the Owner’s beneficial interest in a Restricted
Global Note for a Restricted Definitive Note with an equal principal amount,
the Owner hereby certifies that the Restricted Definitive Note is being
acquired for the Owner’s own account without transfer. Upon consummation of the
proposed Exchange in accordance with the terms of the Indenture, the Restricted
Definitive Note issued will continue to be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted
Definitive Note and in the Indenture and the Securities Act.


 


(b)   o          Check if Exchange is front Restricted Definitive Note to beneficial
interest in a Restricted Global Note. In connection with the Exchange of the
Owner’s Restricted Definitive Note for a beneficial interest in the [CHECK ONE]
“144A Global Note,” Regulation S Global Note with an equal principal amount,
the Owner hereby certifies (i) the beneficial interest is being acquired
for the Owner’s own account without transfer and (ii) such Exchange has
been effected in compliance with the transfer restrictions applicable to the
Restricted Global Notes and pursuant to and in accordance with the Securities
Act, and in compliance with any applicable blue sky securities laws of any
state of the United States. Upon consummation of the proposed Exchange in accordance
with the terms of the Indenture, the beneficial interest issued will be subject
to the restrictions on transfer enumerated in the Private Placement Legend
printed on the relevant Restricted Global Note and in the Indenture and the
Securities Act.


 


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


 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [Insert Name of Transferor]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
   

  
					



 


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EXHIBIT E


 


FORM OF
NOTATION OF GUARANTEE


 


For value received, each
Guarantor (which term includes any successor Person under the Indenture) has,
jointly and severally, unconditionally guaranteed, to the extent set forth in
the Indenture and subject to the provisions in the Indenture dated as of
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:

  



 


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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 Floating Rate Senior Secured Notes due 2012 (the
“Notes”);


 


WHEREAS, the Indenture provides that under
certain circumstances the Guaranteeing Subsidiary shall execute and deliver to
the Trustee a supplemental indenture pursuant to which the Guaranteeing
Subsidiary shall unconditionally guarantee all of the Company’s Obligations
under the Notes and the Indenture on the terms and conditions set forth herein
(the “Subsidiary
Guarantee”); and


 


WHEREAS, pursuant to Section 9.01 of
the Indenture, the Trustee is authorized to execute and deliver this
Supplemental Indenture.


 


NOW, THEREFORE, in consideration of the
foregoing and for other good and valuable consideration, the receipt of which
is hereby acknowledged, the Guaranteeing Subsidiary and the Trustee mutually
covenant and agree for the equal and ratable benefit of the Holders as follows:


 


1.                       CAPITALIZED
TERMS.  Capitalized terms used herein
without definition shall have the meanings assigned to them in the Indenture.


 


2.                       AGREEMENT TO
GUARANTEE.  The Guaranteeing Subsidiary
hereby agrees to provide an unconditional Guarantee on the terms and subject to
the conditions set forth in the Subsidiary Guarantee and in the Indenture
including but not limited to Article 11 thereof.


 


3.                       NO RECOURSE
AGAINST OTHERS.  No past, present or
future director, officer, employee, manager, incorporator (or Person forming a
limited liability company), stockholder or agent or member of the Guaranteeing
Subsidiary, as such, shall have any liability for any obligations of the
Company or any Guaranteeing Subsidiary under the Notes, any Subsidiary
Guarantees, the Indenture or this Supplemental Indenture of for any claim based
on, in respect of, or by reason of, such obligations or their creation. Each
Holder by accepting a Note and a Subsidiary Guarantee waives and releases all
such liability. The waiver and release are part of the consideration for
issuance of the Notes and the Subsidiary Guarantees.


 


4.                       NEW YORK LAW TO
GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO
CONSTRUE THIS SUPPLEMENTAL INDENTURE WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS
OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.


 


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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.


 


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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:

  
					



 


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  WICKLIFFE PAPER COMPANY

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MEADWESTVACO ENERGY SERVICES LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  UPLAND RESOURCES INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  RUMFORD COGENERATION INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


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  RUMFORD
  FALLS POWER COMPANY

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  HSBC BANK USA, NATIONAL ASSOCIATION,

  AS TRUSTEE

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


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