wescoindenture2016







Exhibit 4.1      EXECUTION VERSION         WESCO DISTRIBUTION, INC.   as Issuer,   the Parent Guarantor named herein   and   U.S. BANK NATIONAL ASSOCIATION   as Trustee   ______________________________________   INDENTURE   Dated as of June 15, 2016   ______________________________________         5.375% Senior Notes due 2024           





 






   _______________________   N.A. means Not Applicable   Note: This Cross-Reference Table shall not, for any purpose, be deemed to be a part of this   Indenture      CROSS-REFERENCE TABLE     TIA Indenture   Section   Section     310 (a)(1) ..................................................................................... 7.10    (a)(2) ..................................................................................... 7.10    (a)(3) ..................................................................................... N.A.    (a)(4) ..................................................................................... N.A.    (a)(5) ..................................................................................... 7.10    (b) ......................................................................................... 7.10    (b)(1) ..................................................................................... 7.10    (c) .......................................................................................... N.A.   311 (a) .......................................................................................... 7.11    (b) ......................................................................................... 7.11    (c) .......................................................................................... N.A.   312 (a) .......................................................................................... 2.06    (b) ......................................................................................... 11.03    (c) .......................................................................................... 11.03   313 (a) .......................................................................................... 7.06    (b)(1) ..................................................................................... N.A.    (b)(2) ..................................................................................... 7.06    (c) .......................................................................................... 7.06; 11.02    (d) ......................................................................................... 7.06   314 (a) .......................................................................................... 4.06; 4.16(c)    (b) ......................................................................................... N.A.    (c)(1) ..................................................................................... 11.04(1)    (c)(2) ..................................................................................... 11.04(2)    (c)(3) ..................................................................................... N.A.    (d) ......................................................................................... N.A.    (e) .......................................................................................... 11.05    (f) .......................................................................................... N.A.   315 (a) .......................................................................................... 7.01(b)    (b) ......................................................................................... 7.05    (c) .......................................................................................... 7.01(a)    (d) ......................................................................................... 7.01(c)    (e) .......................................................................................... 6.12   316 (a) (last sentence) .................................................................. 2.10    (a)(1)(A) ............................................................................... 6.05    (a)(1)(B) ................................................................................ 6.04(a)    (a)(2) ..................................................................................... N.A.    (b) ......................................................................................... 6.08    (c) .......................................................................................... 8.04(b)   317 (a)(1) ..................................................................................... 6.09    (a)(2) ..................................................................................... 6.10    (b) ......................................................................................... 2.05; 7.12   318 (a) .......................................................................................... 11.01    





 






   -i-      TABLE OF CONTENTS   Page      ARTICLE ONE      DEFINITIONS AND INCORPORATION BY REFERENCE   SECTION 1.01. Definitions. ................................................................................................... 1   SECTION 1.02. Incorporation by Reference of Trust Indenture Act. .................................. 26   SECTION 1.03. Rules of Construction. ................................................................................ 26   ARTICLE TWO      THE SECURITIES   SECTION 2.01. Amount of Notes. ........................................................................................ 27   SECTION 2.02. Form and Dating; Legends. ........................................................................ 27   SECTION 2.03. Execution and Authentication. .................................................................... 28   SECTION 2.04. Registrar and Paying Agent. ....................................................................... 28   SECTION 2.05. Paying Agent To Hold Money in Trust. ..................................................... 30   SECTION 2.06. Noteholder Lists. ......................................................................................... 30   SECTION 2.07. Transfer and Exchange. .............................................................................. 30   SECTION 2.08. Replacement Notes. .................................................................................... 31   SECTION 2.09. Outstanding Notes. ..................................................................................... 32   SECTION 2.10. Treasury Notes. ........................................................................................... 32   SECTION 2.11. Temporary Notes. ....................................................................................... 32   SECTION 2.12. Cancellation. ............................................................................................... 33   SECTION 2.13. Defaulted Interest. ....................................................................................... 33   SECTION 2.14. CUSIP and ISIN Numbers. ......................................................................... 34   SECTION 2.15. Deposit of Moneys. ..................................................................................... 34   SECTION 2.16. Book-Entry Provisions for Global Notes. ................................................... 34   SECTION 2.17. Transfer and Exchange of Notes. ................................................................ 36   SECTION 2.18. Computation of Interest. ............................................................................. 43   ARTICLE THREE      REDEMPTION   SECTION 3.01. Election To Redeem; Notices to Trustee. ................................................... 43   SECTION 3.02. Selection by Trustee of Notes To Be Redeemed. ....................................... 43   SECTION 3.03. Notice of Redemption. ................................................................................ 44   SECTION 3.04. Effect of Notice of Redemption. ................................................................. 45   SECTION 3.05. Deposit of Redemption Price. ..................................................................... 45   SECTION 3.06. Notes Redeemed in Part. ............................................................................. 46     





 






Page   -ii-      ARTICLE FOUR      COVENANTS   SECTION 4.01. Payment of Notes. ....................................................................................... 46   SECTION 4.02. Maintenance of Office or Agency. ............................................................. 46   SECTION 4.03. Legal Existence. .......................................................................................... 47   SECTION 4.04. [Reserved]. .................................................................................................. 47   SECTION 4.05. Waiver of Stay, Extension or Usury Laws. ................................................ 47   SECTION 4.06. Compliance Certificate. .............................................................................. 47   SECTION 4.07. Taxes. .......................................................................................................... 48   SECTION 4.08. Repurchase at the Option of Holders upon Change of   Control. ................................................................................................. 48   SECTION 4.09. Limitation on Asset Disposition. ................................................................ 51   SECTION 4.10. Limitation on Restricted Payments. ............................................................ 53   SECTION 4.11. Limitation on Liens. .................................................................................... 57   SECTION 4.12. [Reserved]. .................................................................................................. 60   SECTION 4.13. [Reserved]. .................................................................................................. 60   SECTION 4.14. [Reserved]. .................................................................................................. 60   SECTION 4.15. Limitation on Sale and Leaseback Transactions. ....................................... 60   SECTION 4.16. Reports to Holders. ..................................................................................... 61   SECTION 4.17. Additional Note Guarantees. ...................................................................... 62   SECTION 4.18. Termination of Covenants. ......................................................................... 63   ARTICLE FIVE      SUCCESSOR CORPORATION   SECTION 5.01. Merger, Consolidation and Sale of Assets. ................................................. 63   SECTION 5.02. Successor Person Substituted. .................................................................... 64   ARTICLE SIX   DEFAULTS AND REMEDIES   SECTION 6.01. Events of Default. ....................................................................................... 65   SECTION 6.02. Acceleration of Maturity; Rescission. ........................................................ 67   SECTION 6.03. Other Remedies. ......................................................................................... 67   SECTION 6.04. Waiver of Existing Defaults and Events of Default. .................................. 68   SECTION 6.05. Control by Majority. ................................................................................... 68   SECTION 6.06. Limitation on Suits. .................................................................................... 69   SECTION 6.07. No Personal Liability of Directors, Officers, Employees and   Stockholders. ........................................................................................ 69   SECTION 6.08. Rights of Holders To Receive Payment. ..................................................... 70     





 






Page   -iii-      SECTION 6.09. Collection Suit by Trustee. ......................................................................... 70   SECTION 6.10. Trustee May File Proofs of Claim. ............................................................. 70   SECTION 6.11. Priorities. ..................................................................................................... 71   SECTION 6.12. Undertaking for Costs. ................................................................................ 71   ARTICLE SEVEN      TRUSTEE   SECTION 7.01. Duties of Trustee. ........................................................................................ 72   SECTION 7.02. Rights of Trustee. ........................................................................................ 73   SECTION 7.03. Individual Rights of Trustee. ...................................................................... 75   SECTION 7.04. Trustee’s Disclaimer. .................................................................................. 75   SECTION 7.05. Notice of Defaults. ...................................................................................... 75   SECTION 7.06. Reports by Trustee to Holders. ................................................................... 76   SECTION 7.07. Compensation and Indemnity. .................................................................... 76   SECTION 7.08. Replacement of Trustee. ............................................................................. 78   SECTION 7.09. Successor Trustee by Consolidation, Merger, etc. ..................................... 79   SECTION 7.10. Eligibility; Disqualification. ....................................................................... 79   SECTION 7.11. Preferential Collection of Claims Against Issuer. ...................................... 79   SECTION 7.12. Paying Agents. ............................................................................................ 79   ARTICLE EIGHT      AMENDMENT, SUPPLEMENT AND WAIVER   SECTION 8.01. Without Consent of Noteholders. ............................................................... 80   SECTION 8.02. With Consent of Noteholders. .................................................................... 81   SECTION 8.03. Compliance with Trust Indenture Act. ....................................................... 82   SECTION 8.04. Revocation and Effect of Consents. ............................................................ 82   SECTION 8.05. Notation on or Exchange of Notes.............................................................. 83   SECTION 8.06. Trustee To Sign Amendments, etc. ............................................................. 83   ARTICLE NINE      SATISFACTION AND DISCHARGE OF INDENTURE; DEFEASANCE   SECTION 9.01. Satisfaction and Discharge of Indenture. .................................................... 83   SECTION 9.02. Legal Defeasance. ....................................................................................... 84   SECTION 9.03. Covenant Defeasance. ................................................................................. 85   SECTION 9.04. Conditions to Defeasance or Covenant Defeasance. .................................. 86   SECTION 9.05. Deposited Money and U.S. Government Obligations To Be   Held in Trust. ........................................................................................ 87   SECTION 9.06. Reinstatement. ............................................................................................ 88     





 






Page   -iv-      SECTION 9.07. Moneys Held by Paying Agent. .................................................................. 88   SECTION 9.08. Moneys Held by Trustee. ............................................................................ 88   ARTICLE TEN      GUARANTEE OF SECURITIES   SECTION 10.01. Guarantee. ................................................................................................... 89   SECTION 10.02. Execution and Delivery of Note Guarantee. ............................................... 90   SECTION 10.03. Release of Guarantors. ................................................................................ 90   SECTION 10.04. Waiver of Subrogation. ............................................................................... 92   SECTION 10.05. Notice to Trustee. ........................................................................................ 92   SECTION 10.06. Limitation on Guarantor’s Liability. ........................................................... 93   ARTICLE ELEVEN      MISCELLANEOUS   SECTION 11.01. Trust Indenture Act Controls. ..................................................................... 93   SECTION 11.02. Notices. ....................................................................................................... 93   SECTION 11.03. Communications by Holders with Other Holders. ..................................... 95   SECTION 11.04. Certificate and Opinion as to Conditions Precedent. .................................. 96   SECTION 11.05. Statements Required in Certificate and Opinion. ....................................... 96   SECTION 11.06. Rules by Trustee and Agents. ..................................................................... 96   SECTION 11.07. Business Days; Legal Holidays. ................................................................. 96   SECTION 11.08. Governing Law. .......................................................................................... 97   SECTION 11.09. No Adverse Interpretation of Other Agreements. ....................................... 97   SECTION 11.10. Successors. .................................................................................................. 97   SECTION 11.11. Multiple Counterparts. ................................................................................ 97   SECTION 11.12. Table of Contents, Headings, etc. ............................................................... 97   SECTION 11.13. Separability. ................................................................................................ 97   SECTION 11.14. Waiver of Jury Trial .................................................................................... 98   SECTION 11.15. Force Majeure. ............................................................................................ 98   SECTION 11.16. U.S.A. Patriot Act. ...................................................................................... 98      SIGNATURES ........................................................................................................................ S-1      EXHIBITS   Exhibit A-1. Form of Restricted Note ....................................................................... A-1-1   Exhibit A-2. Form of Unrestricted Note .................................................................... A-2-1   Exhibit B. Form of Private Placement Legend .......................................................... B-1   Exhibit C. Form of Legend for Global Note .............................................................. C-1   Exhibit D. [Reserved] .................................................................................................D-1     





 






Page   -v-      Exhibit E. Form of Regulation S Legend ................................................................... E-1   Exhibit F. Form of Certificate of Transfer ................................................................. F-1   Exhibit G. Form of Certificate of Exchange ..............................................................G-1   Exhibit H. [Reserved] .................................................................................................H-1   Exhibit I. Form of Note Guarantee ............................................................................ I-1   Exhibit J. Form of Supplemental Indenture to be Delivered by Subsequent      Guarantors  ........................................................................................... J-1        





 






      INDENTURE, dated as of June 15, 2016, among WESCO Distribution, Inc., a   Delaware corporation (the “Issuer”), the Parent Guarantor (as defined below) and U.S. Bank   National Association, as trustee (the “Trustee”).   Each party agrees as follows for the benefit of the other parties and for the   equal and ratable benefit of the Holders of the Notes.   ARTICLE ONE      DEFINITIONS AND INCORPORATION BY REFERENCE   SECTION 1.01. Definitions.   “2021 Indenture” means that indenture dated November 26, 2013, among   WESCO Distribution, Inc., as issuer, WESCO International, Inc., as parent guarantor,   and U.S. Bank National Association, as trustee.   “ABL Credit Facility” means that certain Second Amended and Restated Cred-   it Agreement dated as of September 24, 2015 (as the same may be further amended,   modified or supplemented from time to time) among the Issuer, JPMorgan Chase   Bank, N.A., as administrative agent, JPMorgan Chase Bank, N.A. Toronto Branch, as   Canadian administrative agent and the other parties from time to time party thereto,   together with all related notes, letters of credit, collateral documents, guarantees and   any other related agreements and instruments executed and delivered in connection   therewith, in each case as amended, modified, refinanced, refunded or replaced in   whole or in part (including by sales of debt securities) from time to time including by   or pursuant to any agreement(s) or instrument(s) (including an indenture) extending   the maturity of or refinancing (including increasing the amount of available borrow-   ings thereunder or adding any Subsidiaries of the Parent Guarantor as borrowers or   guarantors thereunder) all or any portion of the Indebtedness under such agreement(s)   or instrument(s) any successor or replacement bank credit agreement(s) and whether   by the same or any other agent, lender, group of lenders, purchasers, debt holders,   creditor or group of creditors.   “Additional Assets” means:    (1) any property or assets (other than Indebtedness and Capital Stock)  to   be used by the Parent Guarantor or any of its Subsidiaries;    (2) the Capital Stock of a Person that becomes a Subsidiary of the Parent   Guarantor as a result of the acquisition of such Capital Stock by the Parent Guarantor   or any of its Subsidiaries; or      





 






-2-      (3) Capital Stock constituting a non-controlling interest in any Person that   at such time is a Subsidiary of the Parent Guarantor.   “Additional Interest” has the meaning set forth for such term in the Registra-   tion Rights Agreement.    “Additional Notes” has the meaning set forth in Section 2.01.   “Additional Obligor” has the same meaning set forth in Section 4.17(2).   “Affiliate” of any specified Person means any other Person directly or indirect-   ly controlling or controlled by or under direct or indirect common control with such specified   Person.  For purposes of this definition, “control” (including, with correlative meanings, the   terms “controlling,” “controlled by” and “under common control with”), 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.   “Agent” means any Registrar, Paying Agent, Depositary Custodian, or agent   for service or notices and demands.    “Agent Members” has the meaning set forth in Section 2.16.   “amend” means to amend, supplement, restate, amend and restate or otherwise   modify; and “amendment” shall have a correlative meaning.   “Applicable Treasury Rate” for any Make-Whole Redemption Date means the   yield to maturity at the time of computation of United States Treasury securities with a con-   stant maturity (as compiled and published in the most recent Federal Reserve Statistical Re-   lease H.15(519) that has become publicly available at least two Business Days prior to such   Make-Whole Redemption Date (or, if such Statistical Release is no longer published, any   publicly available source of similar market data)) most nearly equal to the period from the   Make-Whole Redemption Date to June 15, 2019; provided, however, that if the period from   the Make-Whole Redemption Date to June 15, 2019 is not equal to the constant maturity of a   United States Treasury security for which a weekly average yield is given, the Applicable   Treasury Rate shall be obtained by linear interpolation (calculated to the nearest one-twelfth   of a year) from the weekly average yields of United States Treasury securities for which such   yields are given except that if the period from the Make-Whole Redemption Date to June 15,   2019 is less than one year, the weekly average yield on actually traded United States Treasury   securities adjusted to a constant maturity of one year shall be used.   “asset” means any asset or property, whether real, personal or mixed, tangible   or intangible.     





 






-3-      “Asset Disposition” means any sale, lease, transfer or other disposition (or se-   ries of related sales, leases, transfers or dispositions) by the Parent Guarantor or any of its   Subsidiaries, including any disposition by means of a merger, consolidation or similar trans-   action (each referred to for the purposes of this definition as a “disposition”), of:    (1) any shares of Capital Stock of any of the Parent Guarantor’s Subsidiar-   ies (other than directors’ qualifying shares or shares required by applicable law to be   held by a Person other than the Parent Guarantor or a Subsidiary);    (2) all or substantially all the assets of any division or line of business of   the Parent Guarantor or any of its Subsidiaries; or    (3) any other assets or property of the Parent Guarantor  or any of its Sub-   sidiaries outside of the ordinary course of business of the Parent Guarantor or such   Subsidiary.    Notwithstanding the foregoing, none of the following shall be deemed to be an   Asset Disposition:    (1) a disposition by a Subsidiary of the Parent Guarantor to the Parent   Guarantor or by the Parent Guarantor or any of its Subsidiaries to any Subsidiary of   the Parent Guarantor;    (2) for purposes of Section 4.09 only, a disposition of all or substantially   all the assets of the Parent Guarantor or the Issuer in compliance with Section 5.01 or   a disposition that constitutes a Change of Control pursuant to this Indenture;    (3) a sale, contribution, conveyance or other transfer of accounts receivable   and related assets of the type specified in the definition of Qualified Receivables   Transaction by or to a Receivables Entity in a Qualified Receivables Transaction;    (4) the license or sublicense of intellectual property or other intangibles;    (5) the lease, assignment or sublease of any real or personal property in the   ordinary course of business;    (6) any surrender or waiver of contract rights or settlement, release, recov-   ery on or surrender of contract, tort or other claims in the ordinary course of business;    (7) the granting of Security Interests not prohibited by Section 4.11;    (8) the disposition by the Parent Guarantor or any of its Subsidiaries in the   ordinary course of business of (i) cash and cash equivalents, (ii) inventory and other   assets acquired and held for resale in the ordinary course of business, (iii) damaged,     





 






-4-      worn out or obsolete assets or assets that, in the Parent Guarantor’s reasonable judg-   ment, are no longer used or useful in the business of the Parent Guarantor or its Sub-   sidiaries, or (iv) rights granted to others pursuant to leases or licenses, to the extent not   materially interfering with the operations of the Parent Guarantor or its Subsidiaries;    (9) a Restricted Payment that is permitted by this Indenture;    (10) any exchange of assets for assets (including a combination of assets   (which assets may include Equity Interests or any securities convertible into, or exer-   cisable or exchangeable for, Equity Interests, but which assets may not include any In-   debtedness) of comparable or greater market value or usefulness to the business of the   Parent Guarantor and its Subsidiaries, taken as a whole, which in the event of an ex-   change of assets with a fair market value in excess of (a) $50.0 million shall be evi-   denced by an Officer’s Certificate and (b) $100.0 million shall be set forth in a resolu-   tion approved by at least a majority of the members of the Board of Directors of the   Parent Guarantor; provided that the Parent Guarantor shall apply any cash or cash   equivalents received in any such exchange of assets as described in Section 4.09(a);    (11) dispositions of receivables in connection with the compromise, settle-   ment or collection thereof in the ordinary course of business or in bankruptcy or simi-   lar proceedings and exclusive of factoring or similar arrangements;    (12) the issuance by any Subsidiary of the Parent Guarantor of Preferred   Stock or any convertible securities;    (13) any sale of Capital Stock or Indebtedness or other securities of a For-   eign Subsidiary;    (14) any sale of assets received by the Parent Guarantor or any of its Subsid-   iaries upon foreclosure on a Security Interest;    (15) the unwinding of any Hedging Obligations (including sales under for-   ward contracts);    (16) any dispositions to the extent required by, or made pursuant to custom-   ary buy/sell arrangements between the joint venture parties set forth in joint venture   arrangements and similar binding agreements;    (17) the lease or sublease of office space;    (18) the abandonment, farm-out, lease, assignment, sub-lease, license or   sub-license of any real or personal property in the ordinary course of business;    (19) dispositions of property pursuant to casualty events;      





 






-5-      (20)  dispositions of property pursuant to a Sale and Leaseback Transaction   permitted by this Indenture;   (21) foreclosures on assets to the extent they would not otherwise result in a   Default or Event of Default; or   (22) a single transaction or series of related transactions that involve the dis-   position of assets with a fair market value of less than the greater of (x) $50.0 million   and (y) 1.0% of Consolidated Total Assets.   “Attributable Indebtedness,” when used with respect to any Sale and Lease-   back Transaction, means, as at the time of determination, the present value (discounted at a   rate borne by the Notes, compounded on a semiannual basis) of the total obligations of the   lessee for rental payments during the remaining term of the lease included in any such Sale   and Leaseback Transaction.   “Bankruptcy Law” means Title 11 of the United States Code, as amended, or   any similar federal, state, local or foreign law for the relief of debtors.   “Board of Directors” means, with respect to any Person, the board of directors   or comparable governing body of such Person or any duly authorized committee thereof.   “Business Day” has the meaning set forth in Section 11.07.   “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, in-   terests, participations, rights or other equivalents (however designated) of corporate   stock; and   (3) in the case of a partnership or limited liability company, partnership or   membership interests (whether general or limited).   “Capitalized Lease” means a lease required to be capitalized for financial re-   porting purposes in accordance with GAAP.    “Capitalized Lease Obligations” of any Person means the obligations of such   Person to pay rent or other amounts under a Capitalized Lease, and the amount of such obliga-   tion shall be the capitalized amount thereof determined in accordance with GAAP.    “CFC Subsidiary” means any subsidiary that constitutes a controlled foreign   corporation within the meaning of Section 957 of the Code.     





 






-6-      “CFC Subsidiary Holding Company” means any Subsidiary (a) that is engaged   in no material business activities other than the holding of Equity Interests and other invest-   ments in one or more CFC Subsidiaries or other CFC Subsidiary Holding Companies or (b)   that owns Equity Interests or other investments in one or more CFC Subsidiaries or other CFC   Holding Companies and is disregarded for U.S. Federal income tax purposes.   “Change of Control” means the occurrence of any of the following:   (1) any Transfer (other than by way of merger or consolidation) of all or   substantially all of the assets of the Parent Guarantor and its Subsidiaries taken as a   whole to any “person” (as defined in Section 13(d) of the Exchange Act) or “group”   (as defined in Sections 13(d)(3) and 14(d)(2) of the Exchange Act), other than any   Transfer to the Parent Guarantor or one or more Subsidiaries of the Parent Guarantor;   (2) the adoption of a plan for the liquidation or dissolution the Parent   Guarantor (other than in a transaction that complies with Article Five); or   (3) a “person” (as defined above) or “group” (as defined above) becomes,   directly or indirectly, the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 un-   der the Exchange Act) of more than 50% of the voting power of the Voting Stock of   the Parent Guarantor, other than as a result of (i) any transaction where the voting   power of the Voting Stock of the Parent Guarantor immediately prior to such transac-   tion constitutes or is converted into or exchanged for a majority of the voting power of   the Voting Stock of such beneficial owner or (ii) any merger or consolidation of the   Parent Guarantor with or into any “person” (as defined above) (a “Permitted Person”)   or a subsidiary of a Permitted Person, in each case, if immediately after such transac-   tion no person (as defined above) is the beneficial owner (as defined above), directly   or indirectly, of more than 50% of the voting power of the Voting Stock of such Per-   mitted Person.   “Code” means the Internal Revenue Code of 1986, as amended.   “Change of Control Offer” has the meaning set forth in Section 4.08.   “Change of Control Payment” has the meaning set forth in Section 4.08.   “Change of Control Payment Date” has the meaning set forth in Section 4.08.   “Commission” means the United States Securities and Exchange Commission.   “Consolidated Cash Flow Available for Fixed Charges” means, with respect to   any Person for any period:      





 






-7-      (1) the sum of, without duplication, the amounts for such period, taken   as a single accounting period, of:    (a) Consolidated Net Income;    (b) Consolidated Non-cash Charges;    (c) Consolidated Interest Expense to the extent the same was de-   ducted in computing Consolidated Net Income;    (d) Consolidated Income Tax Expense (other than income tax ex-   pense (either positive or negative) attributable to extraordinary gains or losses);    (e) any expenses or charges related to any Equity Offering, any re-   capitalization or incurrence of Indebtedness or this offering of the Notes;   (f) the amount of any interest expense attributable to minority equi-   ty interests of third parties in any non-Wholly Owned Subsidiary of the Parent   Guarantor to the extent the same was deducted in computing Consolidated Net   Income; and   (g) any net loss from discontinued operations; less   (2) (x) net income from discontinued operations and (y)  non-cash   items increasing Consolidated Net Income for such period, other than (a) the   accrual of revenue consistent with past practice, and (b) reversals of prior ac-   cruals or reserves for cash items previously excluded in the calculation of Con-   solidated Non-cash Charges.    In calculating “Consolidated Cash Flow Available for Fixed Charges” for any   period, if any Asset Disposition or Asset Acquisition (whether pursuant to a stock or an asset   transaction) shall have occurred since the first day of any twelve month period for which the   “Consolidated Cash Flow Available for Fixed Charges” is being calculated, such calculation   shall give pro forma effect to such Asset Disposition or Asset Acquisition including, for the   avoidance of doubt, any Indebtedness incurred or repaid in connection with such Asset Dispo-   sition or Asset Acquisition.    For the purposes of calculating “Consolidated Cash Flow Available for Fixed   Charges,” “Asset Acquisition” means any acquisition of property or series of related acquisi-   tions of property that constitutes all or substantially all of the assets of a business, unit or divi-   sion of a Person or constitutes all or substantially all of the common stock (or equivalent) of a   Person; and “Asset Disposition” means any disposition of property or series of related dispo-   sitions of property that involves all or substantially all of the assets of a business, unit or divi-    





 






-8-      sion of a Person or constitutes all or substantially all of the common stock (or equivalent) of a   Person.    “Consolidated Fixed Charge Coverage Ratio” means the ratio of Consolidated   Cash Flow Available for Fixed Charges of the Parent Guarantor and its Subsidiaries during   the most recent four consecutive full fiscal quarters for which financial statements are availa-   ble (the “Four-Quarter Period”) ending on or prior to the date of the transaction giving rise to   the need to calculate the Consolidated Fixed Charge Coverage Ratio (the “Transaction Date”)   to Consolidated Fixed Charges of the Parent Guarantor and its Subsidiaries for the Four-   Quarter Period. Notwithstanding anything to the contrary set forth in the definitions of Con-   solidated Cash Flow Available for Fixed Charges and Consolidated Interest Expense (and all   component definitions referenced in such definitions), whenever pro forma effect is to be giv-   en to the incurrence or repayment of Indebtedness or the issuance or redemption of Preferred   Stock, the pro forma calculations shall be determined in good faith by a responsible officer of   the Parent Guarantor.    For purposes of this definition, Consolidated Cash Flow Available for Fixed   Charges and Consolidated Fixed Charges shall be calculated after giving effect on a pro forma   basis for the period of such calculation to the incurrence of any Indebtedness or the issuance   of any Preferred Stock of the Parent Guarantor or any Subsidiary (and the application of the   proceeds thereof) and any repayment of Indebtedness or redemption of other Preferred Stock   (and the application of the proceeds therefrom) (other than the incurrence or repayment of In-   debtedness in the ordinary course of business for working capital purposes pursuant to any   revolving credit arrangement) occurring during the Four-Quarter Period or at any time subse-   quent to the last day of the Four-Quarter Period and on or prior to the Transaction Date, as if   such incurrence, repayment, issuance or redemption, as the case may be (and the application   of the proceeds thereof), occurred on the first day of the Four-Quarter Period.    In calculating Consolidated Fixed Charges for purposes of determining the de-   nominator (but not the numerator) of this Consolidated Fixed Charge Coverage Ratio:    (a) interest on outstanding Indebtedness determined on a fluctuating basis   as of the Transaction Date and which will continue to be so determined thereafter shall   be deemed to have accrued at a fixed rate per annum equal to the rate of interest on   such Indebtedness in effect on the Transaction Date (although interest with respect to   any Indebtedness for periods while the same was actually outstanding during the re-   spective period shall be calculated using the actual rates applicable thereto while the   same was actually outstanding);    (b) if interest on any Indebtedness actually incurred on the Transaction   Date may optionally be determined at an interest rate based upon a factor of a prime or   similar rate, a eurocurrency interbank offered rate, or other rates, then the interest rate   in effect on the Transaction Date will be deemed to have been in effect during the     





 






-9-      Four-Quarter Period (although interest with respect to any Indebtedness for periods   while the same was actually outstanding during the respective period shall be calculat-   ed using the actual rates applicable thereto while the same was actually outstanding);   and    (c) notwithstanding clause (a) or (b) above, interest on Indebtedness de-   termined on a fluctuating basis, to the extent such interest is covered by agreements re-   lating to Hedging Obligations, shall be deemed to accrue at the rate per annum result-   ing after giving effect to the operation of these agreements.   “Consolidated Fixed Charges” for any period means the sum, without duplica-   tion, of (a) Consolidated Interest Expense of the Parent Guarantor and the Subsidiaries for   such period, plus (b) the product of (a) all dividend payments on any series of Disqualified   Equity Interests of the Parent Guarantor or any Subsidiary or any Preferred Stock of any Sub-   sidiary (other than any such Disqualified Equity Interests or any Preferred Stock held by the   Parent Guarantor or a Subsidiary or to the extent paid in Qualified Equity Interests) for such   period, multiplied by (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 the   Parent Guarantor and the Subsidiaries, expressed as a decimal.    “Consolidated Income Tax Expense” means, with respect to any Person for   any period the provision for federal, state, local and foreign income taxes of such Person and   its subsidiaries for such period as determined on a consolidated basis in accordance with   GAAP.    “Consolidated Interest Expense” means, with respect to any Person for any pe-   riod, the interest expense of such Person and its subsidiaries for such period, on a consolidated   basis, determined in accordance with GAAP (including amortization of original issue discount   and deferred financing costs, non-cash interest payments, the interest component of all pay-   ments associated with Capitalized Lease Obligations, capitalized interest, net payments, if   any, pursuant to interest rate-related Hedging Obligations and imputed interest with respect to   Attributable Indebtedness but excluding write-offs associated with the amendment and re-   statement or repayment of indebtedness).   “Consolidated Net Income” means, with respect to any Person, for any period,   the consolidated net income (or loss) of such Person and its subsidiaries for such period as   determined in accordance with GAAP, adjusted, to the extent included in calculating such net   income, by excluding, without duplication:    (1) all extraordinary gains or losses (net of fees and expenses relating to   the transaction giving rise thereto), income, expenses or charges;      





 






-10-      (2) the portion of net income of such Person and its subsidiaries allocable   to minority interests in unconsolidated Persons to the extent that cash dividends or dis-   tributions have not actually been received by such Person or one of its subsidiaries;   provided that, for the avoidance of doubt, Consolidated Net Income shall be increased   in amounts equal to the amounts of cash actually received;    (3) gains or losses in respect of any sales of Capital Stock or asset sales   outside the ordinary course of business (including in a Sale and Leaseback Transac-   tion) by such Person or one of its subsidiaries (net of fees and expenses relating to the   transaction giving rise thereto);    (4) any gain or loss realized as a result of the cumulative effect of a change   in accounting principles;    (5) any fees, expenses and other costs incurred or paid (and write-offs rec-   orded) in connection with the offering of the Notes and any subsequent exchange of-   fer, the Senior Secured Credit Facilities, or other Indebtedness;    (6) nonrecurring or unusual gains or losses;    (7) the net after-tax effects of adjustments in the inventory, property and   equipment, goodwill and intangible assets line items in such Person’s consolidated fi-   nancial statements pursuant to GAAP resulting from the application of purchase ac-   counting or the amortization or write-off of any amounts thereof;    (8) any fees and expenses incurred (and write-offs recorded) during such   period, or any amortization thereof for such period, in connection with any acquisition,   investment, asset sale, issuance or repayment or amendment or restatement of Indebt-   edness, issuance of Capital Stock, stock options or other equity-based awards, refi-   nancing transaction or amendment or modification of any debt instrument (including   without limitation any such transaction undertaken but not completed);    (9) any gain or loss recorded in connection with the designation of a dis-   continued operation (exclusive of its operating income or loss);    (10) any non-cash compensation or other non-cash expenses or charges aris-   ing from the grant of or issuance or repricing of Capital Stock, stock options or other   equity-based awards or any amendment, modification, substitution or change of any   such Capital Stock, stock options or other equity-based awards;    (11) any expenses or charges related to any Equity Offering, Asset Disposi-   tion, merger, amalgamation, consolidation, arrangement, acquisition, disposition, re-    





 






-11-      capitalization or the incurrence of Indebtedness permitted to be incurred by the Inden-   ture (including a refinancing thereof) (whether or not successful);    (12) unrealized gains and losses with respect to Hedging Obligations; and   (13) any non-cash impairment, restructuring or special charge or asset write-   off or writedown, and the amortization or write-off of intangibles.    “Consolidated Non-cash Charges” means, with respect to any Person for any   period, the aggregate depreciation, amortization and other non-cash expenses of the Person   and its subsidiaries (including without limitation any minority interest) reducing Consolidated   Net Income for such period, determined on a consolidated basis in accordance with GAAP.   “Consolidated Total Assets” means the total assets of the Parent Guarantor and   its Subsidiaries as of the most recent fiscal quarter end for which an internal consolidated bal-   ance sheet of the Parent Guarantor and its Subsidiaries is available, all calculated on a consol-   idated basis in accordance with GAAP.   “Corporate Trust Office” means the office of the Trustee at which any time its   corporate trust business in relation to this Indenture shall be administered, which at the date   hereof is located at 225 W. Station Square Drive, Suite 620, Pittsburgh PA 15219, Attention:   Corporate Trust Services,  or such other address as the Trustee may designate from time to   time by notice to the Holders and the Issuer, or the principal corporate trust office of any suc-   cessor Trustee (or such other address as such successor Trustee may designate from time to   time by notice to the Holders and the Issuer).   “Covenant Defeasance” has the meaning set forth in Section 9.03.   “Covenant Termination Event” has the meaning set forth in Section 4.18.   “Credit Facilities” means one or more debt facilities (including, without limita-   tion, the Senior Secured Credit Facilities) or commercial paper facilities, in each case with   banks or other lenders providing for revolving credit loans, term loans or letters of credit, to-   gether with all related notes, letters of credit, collateral documents, guarantees and any other   related agreements and instruments executed and delivered in connection therewith, in each   case as amended, modified, refinanced, refunded or replaced in whole or in part (including by   sales of debt securities) from time to time including by or pursuant to any agreement(s) or in-   strument(s) (including an indenture) extending the maturity of or refinancing (including in-   creasing the amount of available borrowings thereunder or adding the Parent Guarantor or   Subsidiaries of the Parent Guarantor as borrowers or guarantors thereunder) all or any portion   of the Indebtedness under such agreement(s) or instrument(s) any successor or replacement   bank credit agreement(s) and whether by the same or any other agent, lender, group of lend-   ers, purchasers, debt holders, creditor or group of creditors.     





 






-12-      “Default” means (1) any Event of Default or (2) any event, act or condition   that, after notice or the passage of time or both, would be an Event of Default.   “Depositary” means, with respect to the Global Notes, The Depository Trust   Company or another Person designated as depositary by the Issuer, which Person must be a   clearing agency registered under the Exchange Act.   “Depositary Custodian” means the Trustee as custodian with respect to the   Global Notes or any successor entity thereto.   “Designated Non-cash Consideration” means the fair market value of non-cash   consideration received by the Issuer or any of the Guarantors in connection with an Asset   Disposition that is designated as “Designated Non-cash Consideration” pursuant to an of-   ficer’s certificate, setting forth the basis of such valuation, less the amount of cash or cash   equivalents received in connection with a subsequent sale, redemption or payment of, on or   with respect to such Designated Non-cash Consideration.    “Disqualified Equity Interests” of any Person means any class of Equity Inter-   ests of such Person that, by its terms, or by the terms of any related agreement or of any secu-   rity into which it is convertible, puttable or exchangeable, is, or upon the happening of any   event or the passage of time would be, required to be redeemed by such Person, whether or   not at the option of the holder thereof, or matures or is mandatorily redeemable, pursuant to a   sinking fund obligation or otherwise, in whole or in part, on or prior to the date which is 91   days after the final maturity date of the Notes; provided, however, that any class of Equity In-   terests of such Person that, by its terms, authorizes such Person to satisfy in full its obligations   with respect to the payment of dividends or upon maturity, redemption (pursuant to a sinking   fund or otherwise) or repurchase thereof or otherwise by the delivery of Equity Interests that   are not Disqualified Equity Interests, and that is not convertible, puttable or exchangeable for   Disqualified Equity Interests or Indebtedness, will not be deemed to be Disqualified Equity   Interests so long as such Person satisfies its obligations with respect thereto solely by the de-   livery of Equity Interests that are not Disqualified Equity Interests; provided, further, howev-   er, that any Equity Interests that would not constitute Disqualified Equity Interests but for   provisions thereof giving holders thereof (or the holders of any security into or for which such   Equity Interests are convertible, exchangeable or exercisable) the right to require the Issuer to   redeem such Equity Interests upon the occurrence of a change in control occurring prior to the   91st day after the final maturity date of the Notes shall not constitute Disqualified Equity In-   terests if the change of control provisions applicable to such Equity Interests are no more fa-   vorable to such holders than the provisions of Section 4.08 and such Equity Interests specifi-   cally provide that the Issuer will not redeem any such Equity Interests pursuant to such provi-   sions prior to the Issuer’s purchase of the Notes as required pursuant to Section 4.08.   “Domestic Subsidiary” means any Subsidiary of the Issuer, other than a For-   eign Subsidiary.     





 






-13-      “Equity Interests” of any Person means (1) any and all shares or other equity   interests (including common stock, Preferred Stock, limited liability company interests and   partnership interests) in such Person and (2) all rights to purchase, warrants or options   (whether or not currently exercisable), participations or other equivalents of or interests in   (however designated) such shares or other interests in such Person, but excluding any debt   securities that are convertible into such shares or other interests in such Person.   “Equity Offering” means a public sale for cash of common stock of the Parent   Guarantor or any direct or indirect parent entity of the Parent Guarantor, other than (i) public   offerings with respect to common stock of the Parent Guarantor or any of its direct or indirect   parent entities registered on Form S-4 or Form S-8 or (ii) any sale to any Subsidiary of the   Parent Guarantor.   “Event of Default” has the meaning set forth in Section 6.01.   “Excess Proceeds” has the meaning set forth in Section 4.09.   “Exchange Act” means the Securities Exchange Act of 1934, as amended.   “Exchange Notes” means the 5.375% Senior Notes due 2024 issued by the Is-   suer pursuant to this Indenture in an Exchange Offer.   “Exchange Offer” has the meaning set forth in a corresponding Registration   Rights Agreement.   “Fiscal Year” means the fiscal year of the Issuer, which at the date hereof ends   on December 31.   “Foreign Subsidiary” means (i) any Subsidiary of the Issuer that is organized   under the laws of a jurisdiction other than the United States, any state thereof or the District of   Columbia, (ii) any Subsidiary of the Issuer that is a CFC Subsidiary Holding Company or (iii)   any Subsidiary of the Issuer that is a direct or indirect subsidiary of any CFC Subsidiary or   CFC Subsidiary Holding Company.   “GAAP” means generally accepted accounting principles set forth in the opin-   ions 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 may be approved by a   significant segment of the accounting profession of the United States, which are in effect on   the Issue Date; provided, for the avoidance of doubt, that any leases that are not or would not   be characterized as Capitalized Leases under GAAP as in effect on the Issue Date shall not be   reclassified as Capitalized Leases and additional liabilities associated with such leases shall     





 






-14-      not be classified as Indebtedness as a result of any changes in interpretive releases or literature   regarding GAAP or any requirements by the independent auditors of the Parent Guarantor.   “Global Note Legend” means the legend substantially in the form set forth in   Exhibit C.   “Global Notes” has the meaning set forth in Section 2.16.   “Guarantee” means a guarantee (other than by endorsement of negotiable in-   struments for collection in the ordinary course of business), direct or indirect, in any manner   (including, without limitation, through letters of credit and reimbursement agreements in re-   spect thereof), of all or any part of any Indebtedness. “Guarantee” when used as a verb shall   have a corresponding meaning.   “Guarantor” means:    (1) the Parent Guarantor;   (2) each Domestic Subsidiary of the Issuer that executes and delivers this   Indenture or a Note Guarantee pursuant to Section 4.17; and    (3) each Subsidiary of the Issuer that otherwise executes and delivers a   Note Guarantee,    in each case, until such time as such Person is released from its Note Guarantee in accordance   with the provisions of this Indenture.     “Hedging Obligations” of any Person means the obligations of such Person   under swap, cap, collar, forward purchase or similar agreements or arrangements dealing with   interest rates, currency exchange rates or commodity prices or availability, either generally or   under specific contingencies, and including both physical and financial settlement transac-   tions.   “Holder” or “Noteholder” means any registered holder, from time to time, of   any Notes.   “Indebtedness” of any Person at any date means, without duplication:    (a) all liabilities, contingent or otherwise, of such Person for borrowed   money (whether or not the recourse of the lender is to the whole of the assets of such   Person or only to a portion thereof);    (b) all obligations of such Person evidenced by bonds, debentures, notes or   other similar instruments;      





 






-15-      (c) all reimbursement obligations of such Person in respect of letters of   credit, letters of guaranty, bankers’ acceptances and similar credit transactions;    (d) all obligations of such Person to pay the deferred and unpaid purchase   price of property or services due more than six months after such property is acquired   or services performed, except (i) trade payables and accrued expenses, (ii) obligations   to pay royalty fees or other payments under license agreements and (iii) accrued ex-   penses, salary and other employee compensation obligations, in each case incurred in   the ordinary course of business in connection with obtaining goods, materials or ser-   vices;    (e) the maximum fixed redemption or repurchase price of all Disqualified   Equity Interests of such Person (but excluding any accrued but unpaid dividends);    (f) all Capitalized Lease Obligations of such Person;    (g) all Indebtedness of others secured by a Security Interest on any asset of   such Person, whether or not such Indebtedness is assumed by such Person;    (h) all Indebtedness of others guaranteed by such Person to the extent of   such guarantee; provided that Indebtedness of the Parent Guarantor or any of its Sub-   sidiaries that is guaranteed by the Parent Guarantor or any such Subsidiary shall only   be counted once in the calculation of the amount of Indebtedness of the Parent Guar-   antor and its Subsidiaries on a consolidated basis;    (i) all Attributable Indebtedness; and    (j) all obligations of such Person under conditional sale or other title reten-   tion agreements relating to assets purchased by such Person.    The amount of Indebtedness of any Person at any date shall be the outstanding   balance at such date of all unconditional obligations as described above, the maximum liabil-   ity of such Person for any such contingent obligations at such date and, in the case of clause   (g), the lesser of (a) the fair market value of any asset subject to a Security Interest securing   the Indebtedness of others on the date that the Security Interest attaches and (b) the amount of   the Indebtedness secured. For purposes of clause (e), the “maximum fixed redemption or re-   purchase price” of any Disqualified Equity Interests that do not have a fixed redemption or   repurchase price shall be calculated in accordance with the terms of such Disqualified Equity   Interests as if such Disqualified Equity Interests were redeemed or repurchased on any date on   which an amount of Indebtedness outstanding shall be required to be determined pursuant to   this Indenture.     





 






-16-      “Indenture” means this Indenture as amended, restated or supplemented from   time to time.   “Initial Purchasers” means Goldman, Sachs & Co., J.P. Morgan Securities   LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Credit Suisse Securities (USA)   LLC, Morgan Stanley & Co. LLC, BB&T Capital Markets, a division of BB&T Securities,   LLC, Fifth Third Securities, Inc., HSBC Securities (USA) Inc., The Huntington Investment   Company, Citizens Capital Markets, Inc. and U.S. Bancorp Investments, Inc.   “Initial Security Interest” has the meaning set forth in Section 4.11.   “interest” means, with respect to the Notes, interest and Additional Interest, if   any.   “Interest Payment Date” means the stated maturity of an installment of interest   on the Notes.   “Investment Grade Rating” means a rating equal to or higher than Baa3 (or the   equivalent) by Moody’s and BBB- (or the equivalent) by S&P, in each case with stable out-   look, or an equivalent rating by any other Rating Agency.    “Issue Date” means June 15, 2016, the date on which Notes were first issued   under this Indenture.   “Legal Defeasance” has the meaning set forth in Section 9.02.   “Legal Holiday” has the meaning set forth in Section 11.07.   “Make-Whole Premium” means, with respect to a Note at any Make-Whole   Redemption Date, an amount equal to the greater of (i) 1.0% of the principal amount of such   Note and (ii) the excess, if any, of (x) the present value of the sum of the principal amount and   premium that would be payable on such Note on June 15, 2019 and all remaining interest   payments to and including June 15, 2019 (but excluding any interest accrued to the Make-   Whole Redemption Date), discounted on a semiannual basis (assuming a 360-day year con-   sisting of twelve 30-day months) from June 15, 2019 to the Make-Whole Redemption Date at   a per annum interest rate equal to the Applicable Treasury Rate on such Make-Whole Re-   demption Date plus 0.50%, over (y) the outstanding principal amount of such Note.   “Make-Whole Redemption” has the meaning set forth in paragraph 5 of the   Notes.   “Make-Whole Redemption Date” means with respect to a Make-Whole Re-   demption, the date such Make Whole Redemption is effectuated.     





 






-17-      “Maturity Date” when used with respect to any Note, means the date on which   the principal amount of such Note becomes due and payable as therein or herein provided.   “Moody’s” means Moody’s Investors Service, Inc. and any successor to its rat-   ing agency business.   “Net Available Cash” from an Asset Disposition means cash payments re-   ceived therefrom (including any cash payments received by way of deferred payment of prin-   cipal pursuant to a note or installment receivable or otherwise, but only as and when received,   but excluding any other consideration received in the form of assumption by the acquiring   Person of Indebtedness or other obligations relating to such properties or assets or received in   any other noncash form), in each case net of:    (1) all legal, accounting, investment banking, title and recording tax ex-   penses, commissions and other fees (including financial and other advisory fees) and   expenses incurred, and all Federal, state, provincial, foreign and local taxes required to   be paid or accrued as a liability under GAAP, as a consequence of such Asset Disposi-   tion;    (2) all payments made on any Indebtedness which is secured by any assets   subject to such Asset Disposition, in accordance with the terms of any lien upon or   other security agreement of any kind with respect to such assets, or which must by its   terms, or in order to obtain a necessary consent to such Asset Disposition, or by appli-   cable law, be repaid out of the proceeds from such Asset Disposition;    (3) all distributions and other payments required to be made to non-   controlling interest holders in Subsidiaries or joint ventures as a result of such Asset   Disposition; and    (4) appropriate amounts provided by the seller as a reserve, in accordance   with GAAP, against any liabilities associated with the property or other assets dis-   posed in such Asset Disposition and retained by the Parent Guarantor or any of its   Subsidiaries after such Asset Disposition.   “Non-U.S. Person” means a Person who is not a U.S. Person.   “Note Guarantee” means the Guarantee by a Guarantor of the Notes.   “Notes” means the 5.375% Senior Notes due 2024 issued by the Issuer pursu-   ant to this Indenture, including any Exchange Notes.  The Notes issued on the Issue Date and   the Additional Notes, including any Exchange Notes, shall be treated as a single class for all   purposes under this Indenture, and unless the context otherwise requires, all references to the     





 






-18-      Notes shall include the Notes issued on the Issue Date and any Additional Notes, including   any Exchange Notes.   “Offer” has the meaning set forth in Section 4.09.   “Offering Circular” means the Offering Circular of the Issuer, dated June 2,   2016, relating to the offering of the Notes on the Issue Date.   “Officer” means, with respect to any Person, the Chairman, President, Chief   Executive Officer, Chief Financial Officer, Treasurer, Controller, any Senior Vice President,   any Vice President of such Person or any other authorized officer or director of such Person.   “Officer’s Certificate” means, with respect to any Person, a certificate signed   by any Officer of such Person that shall comply with applicable provisions of this Indenture.   “Opinion of Counsel” means a written opinion from legal counsel, who may be   an employee of or counsel to the Parent Guarantor or any of its Subsidiaries, or other counsel   who is reasonably acceptable to the Trustee.  Each such opinion shall include the statements   provided for in Section 11.05, if and to the extent required by the provisions thereof.   “Parent Guarantor” means WESCO International, Inc., a Delaware corpora-   tion, the direct parent company of the Issuer.   “Pari Passu Indebtedness” means any Indebtedness of the Issuer or any Guar-   antor that ranks pari passu in right of payment with the Notes or the Note Guarantees, as ap-   plicable.   “Paying Agent” has the meaning set forth in Section 2.04.   “Payment Default” has the meaning set forth in Section 6.01.   “Permitted Security Interest” has the meaning set forth in Section 4.11.   “Person” means an individual, partnership, corporation, limited liability com-   pany, unincorporated organization, trust or joint venture, or a governmental agency or politi-   cal subdivision thereof.   “Physical Notes” means certificated Notes in registered form that are not   Global Notes.   “Preferred Stock” means, with respect to any Person, any and all preferred or   preference stock or other equity interests (however designated) of such Person having a pref-   erence or priority over other Equity Interests (however designated) of such Person, whether   now outstanding or issued after the Issue Date.     





 






-19-      “principal” of a Note means the principal of the Note plus the premium, if any,   payable on the Note which is due or overdue or is to become due at the relevant time.   “Principal Facility” means any land, building, machinery or equipment, or   leasehold interests and improvements in respect of the foregoing, owned, on the date of this   Indenture or thereafter, by the Parent Guarantor or any of its Subsidiaries, which has a gross   book value (without deduction for any depreciation reserves) at the date as of which the de-   termination is being made of in excess of 1.0% of the Consolidated Total Assets, other than   any such land, building, machinery or equipment, or leasehold interests and improvements in   respect of the foregoing which, in the opinion of the Board of Directors of the Parent Guaran-   tor (evidenced by a board resolution), is not of material importance to the business conducted   by the Parent Guarantor and its Subsidiaries taken as a whole.   “Private Placement Legend” means the legend substantially in the form set   forth in Exhibit B.   “Qualified Equity Interests” of any Person means Equity Interests of such Per-   son other than Disqualified Equity Interests; provided that such Equity Interests shall not be   deemed Qualified Equity Interests to the extent sold to a Subsidiary of such Person or fi-   nanced, directly or indirectly, using funds (1) borrowed from such Person or any Subsidiary   of such Person until and to the extent such borrowing is repaid or (2) contributed, extended,   guaranteed or advanced by such Person or any Subsidiary of such Person (including, without   limitation, in respect of any employee stock ownership or benefit plan). Unless otherwise   specified, Qualified Equity Interests refer to Qualified Equity Interests of the Parent Guaran-   tor.   “Qualified Institutional Buyer” shall have the meaning specified in Rule 144A   promulgated under the Securities Act.   “Qualified Receivables Transaction” means any transaction or series of trans-   actions that may be entered into by the Parent Guarantor or any of its Subsidiaries pursuant to   which the Parent Guarantor or any of its Subsidiaries may sell, convey or otherwise transfer   to:    (1) a Receivables Entity (in the case of a transfer by the Parent Guarantor   or any of its Subsidiaries); or    (2) any other Person (in the case of a transfer by a Receivables Entity),    or may grant a security interest in, any accounts receivable (whether now existing or arising in   the future) of the Parent Guarantor or any of its Subsidiaries, and any assets related thereto,   including all collateral securing such accounts receivable, all contracts and all Guarantees or   other obligations in respect of such accounts receivable, proceeds of such accounts receivable     





 






-20-      and other assets which are customarily transferred or in respect of which security interests are   customarily granted in connection with asset securitization transactions involving accounts   receivable; provided, however, that the financing terms, covenants, termination events and   other provisions thereof shall be market terms in all material respects at the time of such   transaction (as determined in good faith by the Parent Guarantor). The grant of a Security In-   terest in any accounts receivable of the Parent Guarantor or any of its Subsidiaries to secure   Indebtedness under Credit Facilities shall not be deemed a Qualified Receivables Transaction.   “Rating Agencies” means Moody’s and S&P or if Moody’s or S&P or both   shall not make a rating on the Notes publicly available, a nationally recognized statistical rat-   ing agency or agencies, as the case may be, selected by the Issuer which shall be substituted   for Moody’s or S&P or both, as the case may be.   “Receivables Entity” means (a) a Wholly Owned Subsidiary of the Parent   Guarantor that is designated by the Board of Directors of the Parent Guarantor (as provided   below) as a Receivables Entity or (b) another Person engaging in a Qualified Receivables   Transaction with the Parent Guarantor, which Person engages in the business of the financing   of accounts receivable, and in the case of either clause (a) or (b):    (1)  no portion of the Indebtedness or any other obligations (contingent or   otherwise) of such entity:    (A) is Guaranteed by the Parent Guarantor or any Subsidiary of the   Parent Guarantor (excluding Guarantees of obligations (other than the principal   of, and interest on, Indebtedness) pursuant to Standard Securitization Under-   takings),    (B) is recourse to or obligates the Parent Guarantor or any Subsidi-   ary of the Parent Guarantor in any way (other than pursuant to Standard Secu-   ritization Undertakings), or    (C) subjects any property or asset of the Parent Guarantor or any   Subsidiary of the Parent Guarantor, directly or indirectly, contingently or oth-   erwise, to the satisfaction thereof (other than pursuant to Standard Securitiza-   tion Undertakings);    (2) the entity is not an Affiliate of the Parent Guarantor or is an entity with   which neither the Parent Guarantor nor any Subsidiary of the Parent Guarantor has any   material contract, agreement, arrangement or understanding other than on terms that   the Parent Guarantor reasonably believes to be no less favorable to the Parent Guaran-   tor or such Subsidiary than those that might be obtained at the time from Persons that   are not Affiliates of the Parent Guarantor; and      





 






-21-      (3) is an entity to which neither the Parent Guarantor nor any Subsidiary of   the Parent Guarantor has any obligation to maintain or preserve such entity’s financial   condition or cause such entity to achieve certain levels of operating results.    Any such designation by the Board of Directors of the Parent Guarantor shall   be evidenced to the Trustee by filing with the Trustee a certified copy of the resolution of the   Board of Directors of the Parent Guarantor giving effect to such designation and an Officer’s   Certificate certifying that such designation complied with the foregoing conditions.    “Redemption Date” when used with respect to any Note to be redeemed pursu-   ant to paragraph 5 of the Notes means the date fixed for such redemption pursuant to the   terms of this Indenture and the Notes.   “Registrar” has the meaning set forth in Section 2.04.   “Registration Rights Agreement” means (i) the registration rights agreement   dated June 15, 2016 among the Issuer, the Parent Guarantor and the Initial Purchasers relating   to the Notes issued on the Issue Date and (ii) any other registration rights agreement entered   into in connection with the issuance of Additional Notes in a private offering after the Issue   Date.   “Regulation S” means Regulation S promulgated under the Securities Act.   “Regulation S Global Note” has the meaning set forth in Section 2.16.   “Regulation S Legend” means the legend substantially in the form set forth in   Exhibit E.   “Regulation S Notes” has the meaning set forth in Section 2.02.   “Responsible Officer” shall mean, when used with respect to the Trustee, any   officer in the Corporate Trust Department of the Trustee including any vice president, assis-   tant vice president or any other officer of the Trustee who customarily performs functions   similar to those performed by the Persons who at the time shall be such officers, respectively,   in each case having direct responsibility for the administration of this Indenture, and any other   officer to whom any corporate trust matter is referred because of such officer’s knowledge of   and familiarity with the particular subject.   “Restricted Global Note” means a Global Note that is a Restricted Note.   “Restricted Note” has the same meaning as “restricted security” set forth in   Rule 144(a)(3) promulgated under the Securities Act; provided that the Trustee shall be enti-   tled to request (at the expense of the Issuer) and conclusively rely upon an Opinion of Coun-   sel with respect to whether any Note is a Restricted Note.     





 






-22-      “Restricted Payment” means any of the following:    (a) the declaration or payment of any dividend or any other distribution on   Equity Interests of the Parent Guarantor or any payment made to the direct or indirect   holders (in their capacities as such) of Equity Interests of the Parent Guarantor, includ-   ing, without limitation, any payment in connection with any merger or consolidation   involving the Parent Guarantor but excluding dividends or distributions payable solely   in Qualified Equity Interests of the Parent Guarantor or through accretion or accumu-   lation of such dividends on such Equity Interests; or    (b) the repurchase or redemption of any Equity Interests of the Parent   Guarantor, including, without limitation, any payment in connection with any merger   or consolidation involving the Parent Guarantor   “Restricted Payments Basket” has the meaning set forth in Section 4.10.   “Restricted Period” has the meaning set forth in Section 2.17.   “Restricted Physical Note” means a Physical Note that is a Restricted Note.   “Rule 144” means Rule 144 promulgated under the Securities Act.   “Rule 144A” means Rule 144A promulgated under the Securities Act.   “Rule 144A Global Note” has the meaning set forth in Section 2.16.   “Rule 144A Notes” has the meaning set forth in Section 2.02.   “S&P” means Standard & Poor’s Ratings Group, a division of The McGraw-   Hill Companies, Inc., and any successor to its rating agency business   “Sale and Leaseback Transaction” means any sale or transfer made by the Par-   ent Guarantor or one or more of its Subsidiaries (except a sale or transfer made to the Parent   Guarantor or one or more of its Subsidiaries) of any Principal Facility that (in the case of a   Principal Facility which is a building or equipment) has been in operation, use or commercial   production (exclusive of test and start-up periods) by the Parent Guarantor or any of its Sub-   sidiaries for more than 180 days prior to such sale or transfer, or that (in the case of a Princi-   pal Facility that is a parcel of real property not containing a building) has been owned by the   Parent Guarantor or any of its Subsidiaries for more than 180 days prior to such sale or trans-   fer, if such sale or transfer is made with the intention of leasing, or as part of an arrangement   involving the lease of such Principal Facility to the Parent Guarantor or any of its Subsidiaries   (except a lease for a period not exceeding 36 months made with the intention that the use of   the leased Principal Facility by the Parent Guarantor or such Subsidiary will be discontinued   on or before the expiration of such period); provided, however, that the creation of any Se-    





 






-23-      cured Debt permitted under Section 4.11 shall not be deemed to create or be considered a Sale   and Leaseback Transaction.   “Secured Debt” means outstanding Indebtedness of the Parent Guarantor or   any of its Subsidiaries which is secured by (a) a Security Interest in any property or assets of   the Parent Guarantor or any of its Subsidiaries, or (b) a Security Interest in any shares of   Capital Stock owned directly or indirectly by the Parent Guarantor in a Subsidiary. The secur-   ing in the foregoing manner of any previously unsecured debt shall be deemed to be the crea-   tion of Secured Debt at the time such security is given. The amount of Secured Debt at any   time outstanding shall be the aggregate principal amount then owing thereon by the Parent   Guarantor and its Subsidiaries.   “Securities Act” means the Securities Act of 1933, as amended.   “Security Interest” means any mortgage, pledge, lien, encumbrance or other   security interest which secures payment or performance of an obligation.    “Senior Secured Credit Facilities” means the ABL Credit Facility and the Term   Loan Credit Facility.    “Senior Secured Leverage Ratio” means, as of the date of determination, the   ratio of (a) Total Debt secured by a Security Interest to (b) Consolidated Cash Flow Available   for Fixed Charges for the most recently ended four fiscal quarter period ending immediately   prior to such date for which financial statements are available. In the event that the Parent   Guarantor or any of its Subsidiaries incurs, redeems, retires, defeases or extinguishes any To-   tal Debt (other than Indebtedness under a revolving credit facility unless such Indebtedness   has been permanently paid and not replaced) subsequent to the commencement of the period   for which the Senior Secured Leverage Ratio is being calculated but prior to or simultaneous-   ly with the event for which the calculation of the Senior Secured Leverage Ratio is made, then   the Senior Secured Leverage Ratio shall be calculated giving pro forma effect to such incur-   rence, redemption, retirement, defeasance or extinguishment of Total Debt as if the same had   occurred at the beginning of the applicable four-quarter period. Notwithstanding anything to   the contrary set forth in the definition of Consolidated Cash Flow Available for Fixed Charges   (and all component definitions referenced in such definitions), whenever pro forma effect is to   be given to Asset Acquisition, Asset Disposition or incurrence, redemption, retirement, defea-   sance or extinguishment of Total Debt, the pro forma calculations shall be determined in good   faith by a responsible officer of the Issuer.   “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 Issue Date.     





 






-24-      “Standard Securitization Undertakings” means representations, warranties,   covenants and indemnities entered into by the Parent Guarantor or any Subsidiary of the Par-   ent Guarantor that, taken as a whole, are customary in an accounts receivable transaction.     “subsidiary” of any Person means a corporation, association, partnership, lim-   ited liability company or other entity of which more than 50% of the outstanding Voting   Stock is owned, directly or indirectly, by such Person or one or more of the other subsidiaries   of such Person (or a combination thereof).  For purposes of this Indenture, any reference to a   “Subsidiary” is a subsidiary of the Parent Guarantor or the Issuer, as applicable.   “Term Loan Credit Facility” means the term loan agreement, dated as of De-   cember 12, 2012 (as the same may be further amended, modified or supplemented from time   to time), among the Issuer, Credit Suisse AG, Cayman Islands Branch, as administrative agent   and the other parties from time to time party thereto, together with all related notes, letters of   credit, collateral documents, guarantees and any other related agreements and instruments ex-   ecuted and delivered in connection therewith, in each case as amended, modified, refinanced,   refunded or replaced in whole or in part (including by sales of debt securities) from time to   time including by or pursuant to any agreement(s) or instrument(s) (including an indenture)   extending the maturity of or refinancing (including increasing the amount of available bor-   rowings thereunder or adding Subsidiaries of the Parent Guarantor as borrowers or guarantors   thereunder) all or any portion of the Indebtedness under such agreement(s) or instrument(s)   any successor or replacement bank credit agreement(s) and whether by the same or any other   agent, lender, group of lenders, purchasers, debt holders, creditor or group of creditors.   “Terminated Covenants” has the meaning set forth in Section 4.18.   “TIA” or “Trust Indenture Act” means the Trust Indenture Act of 1939, as   amended (15 U.S. Code §§ 77aaa-77bbbb) as in effect on the date of this Indenture (except as   amended to the extent required by law, or as provided in Section 8.03).   “Total Debt” means, at any date of determination, the aggregate amount of all   outstanding Indebtedness of the Parent Guarantor and its Subsidiaries determined on a consol-   idated basis in accordance with GAAP. Notwithstanding the foregoing, for purposes of Sec-   tion 4.11, a binding commitment to lend under a revolving credit facility shall be deemed to   be an incurrence of Indebtedness in the full amount of such commitment on the date that such   commitment is entered into, regardless of whether the full amount of such revolving credit   facility is actually borrowed, and thereafter the amount of such commitment shall be deemed   fully borrowed at all times.    “Total Leverage Ratio” means, as of the date of determination, the ratio of (a)   Total Debt to (b) Consolidated Cash Flow Available for Fixed Charges for the most recently   ended four fiscal quarter period ending immediately prior to such date for which financial   statements are available. In the event that the Parent Guarantor or any Subsidiary incurs, re-    





 






-25-      deems, retires, defeases or extinguishes any Total Debt (other than Indebtedness under a re-   volving credit facility unless such Indebtedness has been permanently paid and not replaced)   subsequent to the commencement of the period for which the Total Leverage Ratio is being   calculated but prior to or simultaneously with the event for which the calculation of the Total   Leverage Ratio is made, then the Total Leverage Ratio shall be calculated giving pro forma   effect to such incurrence, redemption, retirement, defeasance or extinguishment of Total Debt   as if the same had occurred at the beginning of the applicable four-quarter period. Notwith-   standing anything to the contrary set forth in the definition of Consolidated Cash Flow Avail-   able for Fixed Charges (and all component definitions referenced in such definitions), when-   ever pro forma effect is to be given to Asset Acquisition, Asset Disposition or incurrence, re-   demption, retirement, defeasance or extinguishment of Total Debt, the pro forma calculations   shall be determined in good faith by a responsible officer of the Issuer.    “Transfer” means to sell, assign, transfer, lease (other than pursuant to an oper-   ating lease entered into in the ordinary course of business), convey or otherwise dispose of,   including by Sale and Leaseback Transaction, consolidation, merger, liquidation, dissolution   or otherwise, in one transaction or a series of transactions.   “Treasury Management Arrangement” means any agreement or other arrange-   ment governing the provision of treasury or cash management services, including deposit ac-   counts, overdraft, credit or debit card, funds transfer, automated clearinghouse, zero balance   accounts, returned check concentration, controlled disbursement, lockbox, account reconcilia-   tion and reporting and trade finance services and other cash management services.   “Trustee” means the party named as such in this Indenture until a successor re-   places it pursuant to this Indenture and thereafter means the successor.   “Unrestricted Notes” means Notes that are not Restricted Notes.   “Unrestricted Global Note” means a Global Note that is not a Restricted Note.   “Unrestricted Physical Note” means a Physical Note that is not a Restricted   Note.   “U.S. Government Obligations” means marketable direct obligations issued by,   or unconditionally guaranteed as to full and timely payment by, the United States Government   or issued by any agency or instrumentality thereof and backed by the full faith and credit of   the United States of America that, in each case, mature within one year from the date of ac-   quisition thereof and are not callable or redeemable at the option of the issuer thereof.   “U.S. Person” means a “U.S. person” as defined in Rule 902(k) under the Se-   curities Act.     





 






-26-      “Voting Stock” means any class or classes of Capital Stock pursuant to which   the holders thereof have power to vote in the election of directors, managers or trustees of any   Person (irrespective of whether or not, at the time, stock of any other class or classes shall   have, or might have, voting power by reason of the happening of any contingency).   “Wholly Owned Subsidiary” of any Person means a subsidiary of such Person   all of the outstanding Capital Stock or other ownership interests of which (other than direc-   tors’ qualifying shares) shall at the time be owned by such Person or by one or more Wholly   Owned Subsidiaries of such Person or by such Person and one or more Wholly Owned Sub-   sidiaries of such Person.   SECTION 1.02. Incorporation by Reference of Trust Indenture Act.   Whenever this Indenture refers to a provision of the TIA, the portion of such   provision required to be incorporated herein in order for this Indenture to be qualified under   the TIA is incorporated by reference in and made a part of this Indenture.  All other terms   used in this Indenture that are defined by the TIA, defined in the TIA by reference to another   statute or defined by Commission rule have the meanings therein assigned to them.   SECTION 1.03. Rules of Construction.   Unless the context otherwise requires:   (1) a term has the meaning assigned to it herein, whether defined expressly   or by reference;   (2) “or” is not exclusive;   (3) words in the singular include the plural, and in the plural include the   singular;   (4) words used herein implying any gender shall apply to both genders;    (5) “herein,” “hereof” and other words of similar import refer to this Inden-   ture as a whole and not to any particular Article, Section or other clause;   (6) unless otherwise specified herein, all accounting terms used herein   shall be interpreted, all accounting determinations hereunder shall be made, and all fi-   nancial statements required to be delivered hereunder shall be prepared in accordance   with GAAP;    (7) “$” and “U.S. Dollars” each refer to United States dollars, or such other   money of the United States of America that at the time of payment is legal tender for   payment of public and private debts;     





 






-27-      (8) “will” shall be interpreted to express a command; and   (9) “including” means including without limitation.   ARTICLE TWO      THE SECURITIES   SECTION 2.01. Amount of Notes.   The Trustee shall initially authenticate $350,000,000 aggregate principal   amount of Notes for original issue on the Issue Date upon a written order of the Issuer signed   by one Officer, together with an Officer’s Certificate of the Issuer and an Opinion of Counsel.    The Trustee shall authenticate additional Notes (“Additional Notes”) thereafter in unlimited   amount for original issue upon a written order of the Issuer in the form of an Officer’s Certifi-   cate in aggregate principal amount as specified in such order.  The Trustee shall also authenti-   cate (i) replacement Notes as provided in Section 2.08,  (ii) temporary Notes as provided in   Section 2.11, (iii) Notes issued in connection with certain transfers and exchanges as provided   in Sections 2.07, 2.16 and 2.17, (iv) Notes issued in an Exchange Offer, (v) Notes issued in   connection with a partial redemption of the Notes as provided in Section 3.06 or a partial re-   purchase of a Note as provided in Section 4.08 and (vi) Notes exchanged as provided in Sec-   tion 8.05, in each case upon a written order of the Issuer in the form of an Officer’s Certificate   in aggregate principal amount as specified in such order.  Each such written order shall speci-   fy the principal amount of Notes to be authenticated and the date on which the Notes are to be   authenticated.   SECTION 2.02. Form and Dating; Legends.   The Notes and the Trustee’s certificate of authentication with respect thereto   shall be substantially in the form set forth in Exhibit A-1 (in the case of the Restricted Notes)   and Exhibit A-2 (in the case of Unrestricted Notes), each of which is incorporated in and   forms a part of this Indenture.  Each Note shall be dated the date of its authentication.   The Notes may have notations, legends or endorsements required by law, rule   or usage to which the Issuer is subject.  Without limiting the generality of the foregoing,   Notes offered and sold to Qualified Institutional Buyers in reliance on Rule 144A (“Rule   144A Notes”), Notes offered and sold in offshore transactions in reliance on Regulation S   (“Regulation S Notes”) and all other Restricted Notes shall bear the Private Placement Leg-   end.  All Global Notes shall bear the Global Note Legend. Regulation S Notes shall bear the   Regulation S Legend.   The terms and provisions contained in the Notes shall constitute, and are ex-   pressly made, a part of this Indenture and, to the extent applicable, the Issuer, the Guarantors     





 






-28-      and the Trustee, by their execution and delivery of this Indenture, expressly agree to such   terms and provisions and agree to be bound thereby.  If there is a conflict between the terms   of the Notes and this Indenture, the terms of this Indenture shall govern.   The Notes may be presented for registration of transfer and exchange at the of-   fices of the Registrar.   SECTION 2.03. Execution and Authentication.   The Notes shall be executed on behalf of the Issuer by an Officer of the Issuer.    The signature of any of these Officers on the Notes may be manual or facsimile.   If an Officer whose signature is on a Note was an Officer at the time of such   execution but no longer holds that office at the time the Trustee authenticates the Note, the   Note shall be valid nevertheless.   No Note shall be entitled to any benefit under this Indenture or be valid or ob-   ligatory for any purpose unless there appears on such Note a certificate of authentication sub-   stantially in the form provided for herein executed by the Trustee by manual signature, and   such certificate upon any Note shall be conclusive evidence, and the only evidence, that such   Note has been duly authenticated and delivered hereunder.  Notwithstanding the foregoing, if   any Note shall have been authenticated and delivered hereunder but never issued and sold by   the Issuer, and the Issuer shall deliver such Note to the Trustee for cancellation as provided in   Section 2.12, for all purposes of this Indenture such Note shall be deemed never to have been   authenticated and delivered hereunder and shall never be entitled to the benefits of this Inden-   ture.   The Trustee may appoint one or more authenticating agents reasonably ac-   ceptable to the Issuer to authenticate the Notes.  Unless otherwise provided in the appoint-   ment, an authenticating agent may authenticate the 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 the Issuer   and Affiliates of the Issuer.  Each Paying Agent is designated as an authenticating agent for   purposes of this Indenture.   Notes shall be issuable only in registered form without coupons in denomina-   tions of $2,000 and integral multiples of $1,000 in excess of $2,000.   SECTION 2.04. Registrar and Paying Agent.   The Issuer shall maintain (a) an office or agency where Notes may be present-   ed for registration of transfer or for exchange (the “Registrar”), (b) an office or agency in the   city in the United States in which the Trustee’s Corporate Trust Office is located, where Notes     





 






-29-      may be presented for payment (the “Paying Agent”) and (c) an office or agency where notices   and demands to or upon the Issuer, if any, in respect of the Notes and this Indenture may be   served.  The Registrar shall keep a register of the Notes and of their transfer and exchange.    The Registrar shall provide a copy of such register from time to time upon request of the Issu-   er.  The Issuer may appoint one or more co-registrars and one or more additional Paying   Agents.  The term “Registrar” includes any co-registrars.  The term “Paying Agents” means   the Paying Agent and any additional Paying Agents.  The Issuer or any Affiliate thereof may   act as Registrar or a Paying Agent.   The Issuer shall enter into an appropriate agency agreement, which shall incor-   porate the provisions of the TIA, with any Agent that is not a party to this Indenture.  The   agreement shall implement the provisions of this Indenture that relate to such Agent.  The Is-   suer shall notify the Trustee of the name and address of any such Agent.  If the Issuer fails to   maintain a Registrar or any required co-registrar or Paying Agent, or fails to give the forego-   ing notice, the Trustee shall act as such and shall be entitled to appropriate compensation in   accordance with Section 7.07.   The Issuer initially appoints the Trustee as Registrar, Paying Agent and Depos-   itary Custodian.   The Issuer initially appoints The Depository Trust Company to act as Deposi-   tary with respect to the Global Notes.  The Issuer may change the Depositary at any time   without notice to any Holder, but the Issuer will notify the Trustee of the name and address of   any new Depositary.   The Issuer shall be responsible for making calculations called for under the   Notes, including but not limited to determination of redemption price, premium, if any, and   any additional amounts or other amounts payable on the Notes.  The Issuer will make the cal-   culations in good faith and, absent manifest error, its calculations will be final and binding on   the Holders.  The Issuer will provide a schedule of its calculations to the Trustee when rea-   sonably requested by the Trustee, and the Trustee is entitled to rely conclusively on the accu-   racy of the Issuer’s calculations without independent verification. The Trustee shall forward   the Issuer’s calculations referred to above in this paragraph to any Holder of the Notes upon   the written request of such Holder.   To the extent it becomes payable pursuant to the Registration Rights Agree-   ment, Additional Interest will be payable in arrears on each Interest Payment Date following   accrual in the same manner as regular interest on the Notes.  If Additional Interest is payable   on the Notes, the Issuer shall provide an Officer’s Certificate to the Trustee on or before the   record date for each Interest Payment Date such Additional Interest is payable setting forth   the accrual period and the amount of such Additional Interest in reasonable detail. The Trus-   tee may provide a copy of such Officer’s Certificate or other notice received from the Issuer   relating to Additional Interest to any Holder upon request. Unless and until a Responsible Of-    





 






-30-      ficer of the Trustee receives at the Corporate Trust Office such an Officer’s Certificate, the   Trustee may assume without inquiry that no such Additional Interest is payable.  If the Issuer   has paid Additional Interest directly to the Persons entitled to it, the Issuer shall deliver to the   Trustee an Officer’s Certificate setting forth the particulars of such payment.    SECTION 2.05. Paying Agent To Hold Money in Trust.   The Paying Agent shall hold in trust for the benefit of the Noteholders or the   Trustee all money held by the Paying Agent for the payment of principal of or premium or   interest on the Notes (whether such money has been paid to it by the Issuer, one or more of   the Guarantors or any other obligor on the Notes), and the Issuer and the Paying Agent shall   notify the Trustee of any default by the Issuer (or any other obligor on the Notes) in making   any such payment.  Money held in trust by a Paying Agent need not be segregated except as   required by law and in no event shall a Paying Agent be liable for any interest on any money   received by it hereunder.  The Issuer at any time may require a Paying Agent to pay all money   held by it to the Trustee and account for any funds disbursed and the Trustee may at any time   during the continuance of any Event of Default specified in Section 6.01(1) or (2), upon writ-   ten request to a Paying Agent, require such Paying Agent to pay forthwith all money so held   by it to the Trustee and to account for any funds disbursed.  Upon making such payment, such   Paying Agent shall have no further liability for the money delivered to the Trustee.   SECTION 2.06. Noteholder Lists.   The Trustee shall preserve in as current a form as is reasonably practicable the   most recent list available to it of the names and addresses of the Noteholders.  If the Trustee is   not the Registrar, the Issuer shall furnish to the Trustee at least five 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 Noteholders.   SECTION 2.07. Transfer and Exchange.   Subject to Sections 2.16 and 2.17, when Notes are presented to the Registrar   with a request from the Holder of such Notes to register a transfer or to exchange them for an   equal principal amount of Notes of other authorized denominations, the Registrar shall regis-   ter the transfer as requested.  Every Note presented or surrendered for registration of transfer   or exchange shall be duly endorsed or be accompanied by a written instrument of transfer in   form satisfactory to the Issuer and the Registrar, duly executed by the Holder thereof or his   attorneys duly authorized in writing.  To permit registrations of transfers and exchanges, the   Issuer shall issue and execute and, upon receipt of a written order of the Issuer in the form of   an Officer’s Certificate in accordance with Section 2.01,  the Trustee shall authenticate new   Notes (and the Parent Guarantor shall execute the Guarantee thereon) evidencing such trans-   fer or exchange at the Registrar’s request.  No service charge shall be made to the Noteholder     





 






-31-      for any registration of transfer or exchange.  The Issuer or the Trustee may require from the   Noteholder payment of a sum sufficient to cover any transfer taxes or other governmental   charge that may be imposed in relation to a transfer or exchange, but this provision shall not   apply to any exchange pursuant to Section 2.11, 3.06, 4.08 or 8.05 (in which events the Issuer   shall be responsible for the payment of such taxes).  The Registrar shall not be required to ex-   change or register a transfer of any Note for a period of 15 days immediately preceding the   mailing of notice of redemption of Notes to be redeemed or of any Note selected, called or   being called for redemption except the unredeemed portion of any Note being redeemed in   part.   Any Holder of a Global Note shall, by acceptance of such Global Note, agree   that transfers of the beneficial interests in such Global Note may be effected only through a   book-entry system maintained by the Holder of such Global Note (or its agent), and that own-   ership of a beneficial interest in the Global Note shall be required to be reflected in a book   entry.  By its acceptance of any Note bearing the Private Placement Legend, each Holder of   such Note acknowledges the restrictions on transfer of such Note set forth in this Indenture   and in the Private Placement Legend and agrees that it will transfer such Note only as provid-   ed in this Indenture.   SECTION 2.08. Replacement Notes.   If a mutilated Note is surrendered to the Registrar or the Trustee, or if the   Holder of a Note claims that the Note has been lost, destroyed or wrongfully taken, the Issuer   shall issue and, upon receipt of a written order of the Issuer in the form of an Officer’s Certif-   icate in accordance with Section 2.01, the Trustee shall authenticate a replacement Note (and   the Parent Guarantor shall execute the Guarantee thereon) if the Holder of such Note furnish-   es to the Issuer and the Trustee evidence reasonably acceptable to them of the ownership and   the destruction, loss or theft of such Note and if the requirements of Section 8-405 of the New   York Uniform Commercial Code as in effect on the date of this Indenture are met.  If required   by the Trustee or the Issuer, an indemnity bond shall be posted, sufficient in the judgment of   all to protect the Issuer, the Guarantors, the Trustee, the Registrar and any Paying Agent from   any loss that any of them may suffer if such Note is replaced.  The Issuer may charge such   Holder for the Issuer’s reasonable out-of-pocket expenses in replacing such Note and the   Trustee may charge the Issuer for the Trustee’s reasonable out-of-pocket expenses (including,   without limitation, attorneys’ fees and disbursements) in replacing such Note and may require   the payment of a sum sufficient to cover any tax, assessment, fee or other charge that may be   imposed in relation thereto and any other expenses (including the reasonable out-of-pocket   fees and expenses of the Trustee) connected therewith.  Every replacement Note shall consti-   tute a contractual obligation of the Issuer.  The provisions of this Section 2.08 are exclusive   and will preclude (to the extent lawful) all other rights and remedies with respect to the re-   placement or payment of lost, destroyed, mutilated or wrongfully taken Notes.     





 






-32-      SECTION 2.09. Outstanding Notes.   The Notes outstanding at any time are all Notes that have been authenticated   by the Trustee except for (a) those canceled by or on behalf of the Trustee, (b) those accepted   by the Trustee for cancellation, (c) to the extent set forth in Sections 9.01 and 9.02, on or after   the date on which the conditions set forth in Section 9.01 or 9.02 have been satisfied, those   Notes theretofore authenticated by the Trustee hereunder and (d) those described in this Sec-   tion 2.09 as not outstanding.  Subject to Section 2.10, a Note does not cease to be outstanding   because the Issuer or one of its Affiliates holds the Note.   If a Note is replaced pursuant to Section 2.08, it ceases to be outstanding un-   less the Trustee receives proof satisfactory to the Issuer that the replaced Note is held by a bo-   na fide purchaser in whose hands such Note is a legal, valid and binding obligation of the Is-   suer.   If a Paying Agent holds, in its capacity as such, on any Maturity Date, U.S.   Dollars sufficient to pay all accrued interest and principal with respect to the Notes payable on   that date and is not prohibited from paying such money to the Holders thereof pursuant to the   terms of this Indenture, then on and after that date such Notes shall cease to be outstanding   and interest on them shall cease to accrue.   SECTION 2.10. Treasury Notes.   In determining whether the Holders of the required principal amount of Notes   have concurred in any declaration of acceleration or notice of default or direction, waiver or   consent or any amendment, modification or other change to this Indenture, Notes owned by   the Issuer or any other Affiliate of the Issuer shall be disregarded as though they were not out-   standing, except that for the purposes of determining whether the Trustee shall be protected in   relying on any such direction, waiver or consent or any amendment, modification or other   change to this Indenture, only Notes as to which a Responsible Officer of the Trustee has ac-   tually received an Officer’s Certificate stating that such Notes are so owned shall be so disre-   garded.  Notes so owned which have been pledged in good faith shall not be disregarded if the   pledgee established to the satisfaction of the Trustee the pledgee’s right so to act with respect   to the Notes and that the pledgee is not the Issuer, a Guarantor, any other obligor on the Notes   or any of their respective Affiliates.   SECTION 2.11. Temporary Notes.   Until definitive Notes are prepared and ready for delivery, the Issuer may pre-   pare and, upon receipt of a written order of the Issuer in the form of an Officer’s Certificate in   accordance with Section 2.01, the Trustee shall authenticate temporary Notes.  Temporary   Notes shall be substantially in the form of definitive Notes but may have variations that the   Issuer considers appropriate for temporary Notes.  Without unreasonable delay, the Issuer     





 






-33-      shall prepare and, upon receipt of a written order of the Issuer in the form of an Officer’s Cer-   tificate in accordance with Section 2.01, the Trustee shall authenticate definitive Notes in ex-   change for temporary Notes.  Until such exchange, temporary Notes shall be entitled to the   same rights, benefits and privileges as definitive Notes.   SECTION 2.12. Cancellation.   The Issuer at any time may deliver Notes to the Trustee for cancellation.  The   Registrar and the Paying Agent shall forward to the Trustee any Notes surrendered to them for   registration of transfer, exchange or payment.  The Trustee shall cancel all Notes surrendered   for registration of transfer, exchange, payment, replacement or cancellation and shall dispose   of such canceled Notes in its customary manner.  The Issuer may not reissue or resell or issue   new Notes to replace Notes that the Issuer has redeemed or paid, or that have been delivered   to the Trustee for cancellation.   SECTION 2.13. Defaulted Interest.   If the Issuer defaults on a payment of interest on the Notes, the Issuer shall pay   the defaulted interest then borne by the Notes plus (to the extent permitted by law) any inter-   est payable on the defaulted interest, in accordance with the terms hereof, to the Persons who   are Holders thereof on a subsequent special record date, which date shall be at least five Busi-   ness Days prior to the payment date.  If such default continues for thirty (30) days, the Issuer   shall fix such special record date and payment date in a manner satisfactory to the Trustee.  At   least 10 days before such special record date, the Issuer (or upon the written request of the   Issuer, the Trustee, in the name and at the expense of the Issuer) shall mail to each affected   Noteholder a notice that states the special record date, the payment date and the amount of   defaulted interest, and interest payable on defaulted interest, if any, to be paid.  The Issuer   may make payment of any defaulted interest in any other lawful manner not inconsistent with   the requirements (if applicable) of any securities exchange on which the Notes may be listed   and, upon such notice as may be required by such exchange, if, after written notice given by   the Issuer to the Trustee of the proposed payment pursuant to this sentence, such manner of   payment shall be deemed practicable by the Trustee.  If the Issuer elects for the Trustee to   send such notice to the Holders then the Issuer shall provide such notice to the Trustee at least   five (5) days (or such  shorter time as may be agreed by the Trustee in its discretion) before   such notice is required to be mailed to the Holders.   Notwithstanding the foregoing, any interest which is paid prior to the expira-   tion of the 30-day period set forth in Section 6.01(1) shall be paid to Holders as of the record   date for the Interest Payment Date for which interest has not been paid.     





 






-34-      SECTION 2.14. CUSIP and ISIN Numbers.   The Issuer in issuing the Notes may use “CUSIP” and “ISIN” numbers, and if   so used, such CUSIP and ISIN numbers shall be included in notices as a convenience to   Holders; provided that any such notice may state that no representation is made as to the cor-   rectness or accuracy of the CUSIP or ISIN numbers printed in the notice or on the Notes, that   reliance may be placed only on the other identification numbers printed on the Notes, and any   such notice shall not be affected by any defect in or omission of such CUSIP or ISIN num-   bers.  The Issuer shall promptly notify the Trustee, in writing, of any such CUSIP or ISIN   number used by the Issuer in connection with the issuance of the Notes and of any change in   any such CUSIP or ISIN number.   SECTION 2.15. Deposit of Moneys.   Prior to 10:00 A.M., New York City time, on each Interest Payment Date and   Maturity Date, the Issuer shall have deposited with the Paying Agent in immediately available   funds U.S. Dollars sufficient to make cash payments, if any, due on such Interest Payment   Date or Maturity Date, as the case may be, in a timely manner which permits such Paying   Agents to remit payment to the Holders on such Interest Payment Date or Maturity Date, as   the case may be.  The principal and interest on Global Notes shall be payable to the Deposi-   tary or its nominee, as the case may be, as the sole registered owner and the sole Holder of the   Global Notes represented thereby.  The principal and interest on Physical Notes shall be pay-   able, either in person, by wire transfer or by mail, at the office of the Paying Agent.  Final   payment of principal at maturity will only be made by the Trustee upon surrender of the relat-   ed Note to the Trustee at its Corporate Trust Office.   SECTION 2.16. Book-Entry Provisions for Global Notes.   (a) Rule 144A Notes initially shall be represented by one or more Notes in   registered, global form without interest coupons (collectively, the “Rule 144A Global Note”).    Regulation S Notes initially shall be represented by one or more Notes in registered, global   form without interest coupons (collectively, the “Regulation S Global Note”).  The term   “Global Notes” means the Rule 144A Global Note and the Regulation S Global Note.  The   Global Notes shall bear the Global Note Legend.  The Global Notes initially shall (i) be regis-   tered in the name of the Depositary or the nominee of such Depositary, in each case for credit   to an account of an Agent Member, (ii) be delivered to the Trustee as custodian for such De-   positary and (iii) bear the Private Placement Legend.   Members of, or direct or indirect participants in, the Depositary (“Agent Mem-   bers”) shall have no rights under this Indenture with respect to any Global Note held on their   behalf by the Depositary or under the Global Notes.  The Depositary may be treated by the   Issuer, the Trustee and any agent of the Issuer or the Trustee as the absolute owner of the   Global Notes for all purposes whatsoever.  Notwithstanding the foregoing, nothing herein     





 






-35-      shall prevent the Issuer, the Trustee or any agent of the Issuer or the Trustee from giving ef-   fect to any written certification, proxy or other authorization furnished by the Depositary or   impair, as between the Depositary and its Agent Members, the operation of customary prac-   tices governing the exercise of the rights of a Holder of any Note.  None of the Issuer, the   Trustee, the Paying Agent nor the Registrar shall have any responsibility or liability for any   acts or omissions of the Depositary with respect to such Global Note, for the records of the   Depositary, including records in respect of the beneficial owners of any such Global Note, for   any transactions between the Depositary and any Agent Member or between or among the   Depositary, any such Agent Member and/or any Holder or beneficial owner of such Global   Note, or for any transfers of beneficial interests in any such Global Note.   (b) Transfers of Global Notes shall be limited to transfer in whole, but not   in part, to the Depositary, its successors or their respective nominees.  Interests of beneficial   owners in the Global Notes may be transferred or exchanged for Physical Notes only in ac-   cordance with the applicable rules and procedures of the Depositary and the provisions of   Section 2.17.  In addition, a Global Note shall be exchangeable for Physical Notes (i) if re-   quested by a holder of such interests upon receipt by the Trustee of written instructions from   the Depositary or its nominee on behalf of any beneficial owner and in accordance with the   rules and procedures of the Depositary and provisions of this Section 2.16 or (ii) if the Depos-   itary notifies the Issuer that it is unwilling or unable to continue as depositary for such Global   Note and the Issuer thereupon fail to appoint a successor depositary within 90 days or (iii) if   the Depositary has ceased to be a clearing agency registered under the Exchange Act or (iv) if   there shall have occurred and be continuing an Event of Default with respect to such Global   Note and the Depository has requested such exchange.  In all cases, Physical Notes delivered   in exchange for any Global Note or beneficial interests therein shall be registered in the   names, and issued in any approved denominations, requested by or on behalf of the Deposi-   tary in accordance with its customary procedures.   (c) In connection with the transfer of a Global Note as an entirety to bene-   ficial owners pursuant to clause (b) of this Section 2.16, such Global Note shall be deemed to   be surrendered to the Trustee for cancellation, and the Issuer shall execute and, upon receipt   of a written order of the Issuer in the form of an Officer’s Certificate in accordance with Sec-   tion 2.01, the Trustee shall authenticate and deliver, to each beneficial owner identified by the   Depositary in writing in exchange for its beneficial interest in such Global Note, an equal ag-   gregate principal amount of Physical Notes of authorized denominations.   (d) Any Restricted Physical Note delivered in exchange for an interest in a   Global Note pursuant to Section 2.17 shall, except as otherwise provided in Section 2.17, bear   the Private Placement Legend.   (e) The Holder of any Global Note may grant proxies and otherwise au-   thorize any Person, including Agent Members and Persons that may hold interests through     





 






-36-      Agent Members, to take any action which a Holder is entitled to take under this Indenture or   the Notes.   SECTION 2.17. Transfer and Exchange of Notes.   (a) Transfer and Exchange of Global Notes.  A Global Note may not be   transferred as a whole except as set forth in Section 2.16(b).  Global Notes will not be ex-   changed by the Issuer for Physical Notes except under the circumstances described in Section   in Section 2.16(b).  Global Notes also may be exchanged or replaced, in whole or in part, as   provided in Sections 2.08 and 2.11.  Beneficial interests in a Global Note may be transferred   and exchanged as provided in Section 2.17(b) or 2.17(f).   (b) Transfer and Exchange of Beneficial Interests in Global Notes.  The   transfer and exchange of beneficial interests in the Global Notes shall be effected through the   Depositary, in accordance with the provisions of this Indenture and the applicable rules and   procedures of the Depositary.  Beneficial interests in Restricted Global Notes shall be subject   to restrictions on transfer comparable to those set forth herein to the extent required by the   Securities Act.  Beneficial interests in Global Notes shall be transferred or exchanged only for   beneficial interests in Global Notes.  Transfers and exchanges of beneficial interests in the   Global Notes also shall require compliance with either subparagraph (i) or (ii) below, as ap-   plicable, as well as one or more of the other following subparagraphs, as applicable:   (i) Transfer of Beneficial Interests in the Same Global Note.  Beneficial   interests in any Restricted Global Note may be transferred to Persons who take deliv-   ery 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 40th day after the later of the commencement of   the offering of the Notes represented by a Regulation S Global Note and the issue date   of such Notes (such period through and including such 40th day, the “Restricted Peri-   od”), transfers of beneficial interests in a Regulation S 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).  A beneficial interest in an Unrestricted Global Note may be transferred to   Persons who take delivery thereof in the form of a beneficial interest in an Unrestrict-   ed Global Note.  No written orders or instructions shall be required to be delivered to   the Registrar to effect the transfers described in this Section 2.17(b)(i).   (ii) All Other Transfers and Exchanges of Beneficial Interests in Global   Notes.  In connection with all transfers and exchanges of beneficial interests in any   Global Note that is not subject to Section 2.17(b)(i), the transferor of such beneficial   interest must deliver to the Registrar (1) a written order from an Agent Member given   to the Depositary in accordance with the applicable rules and procedures of the Depos-   itary 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     





 






-37-      exchanged and (2) instructions given in accordance with the applicable rules and pro-   cedures of the Depositary containing information regarding the Agent Member ac-   count to be credited with such increase.  Upon satisfaction of all of the requirements   for transfer or exchange of beneficial interests in Global Notes contained in this Inden-   ture and the Notes, the Trustee shall adjust the principal amount of the relevant Global   Note(s) pursuant to Section 2.17(f).   (iii) Transfer of Beneficial Interests to Another Restricted Global Note.  A   beneficial interest in a 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 2.17(b)(ii) above and   the Registrar receives the following:   (A) if the transferee will take delivery in the form of a beneficial in-   terest in a Rule 144A Global Note, then the transferor must deliver a certificate   in the form of Exhibit F, including the certifications in item (1) thereof; and   (B) if the transferee will take delivery in the form of a beneficial in-   terest in a Regulation S Global Note, then the transferor must deliver a certifi-   cate in the form of Exhibit F, including the certifications in item (2) thereof.   (iv) Transfer and Exchange of Beneficial Interests in a Restricted Global   Note for Beneficial Interests in an Unrestricted Global Note.  A beneficial interest in a   Restricted Global Note may be exchanged by any holder thereof for a beneficial inter-   est in an Unrestricted Global Note or transferred to a Person who takes delivery there-   of in the form of a beneficial interest in an Unrestricted Global Note if the exchange or   transfer complies with the requirements of Section 2.17(b)(ii) above and the Registrar   receives the following:   (A) 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 Ex-   hibit G, including the certifications in item (1)(a) thereof; or   (B) if the holder of such beneficial interest in a Restricted Global   Note proposes to transfer such beneficial interest to a Person who shall take de-   livery thereof in the form of a beneficial interest in an Unrestricted Global   Note, a certificate from such holder in the form of Exhibit F, including the cer-   tifications in item (4) thereof,   and, in each such case, an Opinion of Counsel in form reasonably acceptable to the   Registrar to the effect that such exchange or transfer is in compliance with the Securi-   ties Act and that the restrictions on transfer contained herein and in the Private Place-    





 






-38-      ment Legend are no longer required in order to maintain compliance with the Securi-   ties Act.  If any such transfer or exchange is effected pursuant to this subparagraph   (iv) at a time when an Unrestricted Global Note has not yet been issued, the Issuer   shall issue and, upon receipt of a written order of the Issuer in the form of an Officer’s   Certificate in accordance with Section 2.01, 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 or exchanged pursuant to this sub-   paragraph (iv).   (v) Transfer and Exchange of Beneficial Interests in an Unrestricted Global   Note for Beneficial Interests in a Restricted Global Note.  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 and Exchange of Beneficial Interests in Global Notes for   Physical Notes.  A beneficial interest in a Global Note may not be exchanged for a Physical   Note except under the circumstances described in Section 2.16(b).  A beneficial interest in a   Global Note may not be transferred to a Person who takes delivery thereof in the form of a   Physical Note except under the circumstances described in Section 2.16(b).   (d) Transfer and Exchange of Physical Notes for Beneficial Interests in   Global Notes.  Transfers and exchanges of beneficial interests in the Global Notes also shall   require compliance with either subparagraph (i), (ii) or (ii) below, as applicable:   (i) Restricted Physical Notes to Beneficial Interests in Restricted Global   Notes.  If any Holder of a Restricted Physical Note proposes to exchange such Re-   stricted Physical Note for a beneficial interest in a Restricted Global Note or to trans-   fer such Restricted Physical Note to a Person who takes delivery thereof in the form of   a beneficial interest in a Restricted Global Note, then, upon receipt by the Registrar of   the following documentation:   (A) if the Holder of such Restricted Physical Note proposes to ex-   change such Restricted Physical Note for a beneficial interest in a Restricted   Global Note, a certificate from such Holder in the form of Exhibit G, including   the certifications in item (2)(a) thereof;   (B) if such Restricted Physical Note is being transferred to a Quali-   fied Institutional Buyer in accordance with Rule 144A under the Securities   Act, a certificate to the effect set forth in Exhibit F, including the certifications   in item (1) thereof;   (C) if such Restricted Physical Note is being transferred to a Non-   U.S. Person in an offshore transaction in accordance with Rule 903 or Rule     





 






-39-      904 under the Securities Act, a certificate to the effect set forth in Exhibit F,   including the certifications in item (2) thereof;   (D) if such Restricted Physical Note is being transferred pursuant to   an exemption from the registration requirements of the Securities Act in ac-   cordance with Rule 144 under the Securities Act, a certificate to the effect set   forth in Exhibit F, including the certifications in item (3)(a) thereof;   (E) [reserved]; or   (F) if such Restricted Physical Note is being transferred to the Issu-   er or a Subsidiary thereof, a certificate to the effect set forth in Exhibit F, in-   cluding the certifications in item (3)(b) thereof,   the Trustee shall cancel the Restricted Physical Note, and increase or cause to be in-   creased the aggregate principal amount of  the appropriate Restricted Global Note.   (ii) Restricted Physical Notes to Beneficial Interests in Unrestricted Global   Notes.  A Holder of a Restricted Physical Note may exchange such Restricted Physical   Note for a beneficial interest in an Unrestricted Global Note or transfer such Restricted   Physical Note to a Person who takes delivery thereof in the form of a beneficial inter-   est in an Unrestricted Global Note only if the Registrar receives the following:   (A) if the Holder of such Restricted Physical Note proposes to ex-   change such Restricted Physical Note for a beneficial interest in an Unrestrict-   ed Global Note, a certificate from such Holder in the form of Exhibit G, in-   cluding the certifications in item (1)(b) thereof; or   (B) if the Holder of such Restricted Physical Notes proposes to   transfer such Restricted Physical Note 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 F, including the certifica-   tions in item (4) thereof,   and, in each such case, an Opinion of Counsel in form reasonably acceptable to the   Registrar to the effect that such exchange or transfer is in compliance with the Securi-   ties Act and that the restrictions on transfer contained herein and in the Private Place-   ment Legend are no longer required in order to maintain compliance with the Securi-   ties Act.  Upon satisfaction of the conditions of this subparagraph (ii), the Trustee   shall cancel the Restricted Physical Notes and increase or cause to be increased the   aggregate principal amount of the Unrestricted Global Note.  If any such transfer or   exchange is effected pursuant to this subparagraph (ii) at a time when an Unrestricted   Global Note has not yet been issued, the Issuer shall issue and, upon receipt of a writ-    





 






-40-      ten order of the Issuer in the form of an Officer’s Certificate in accordance with Sec-   tion 2.01, the Trustee shall authenticate one or more Unrestricted Global Notes in an   aggregate principal amount equal to the aggregate principal amount of Restricted   Physical Notes transferred or exchanged pursuant to this subparagraph (ii).   (iii) Unrestricted Physical Notes to Beneficial Interests in Unrestricted   Global Notes.  A Holder of an Unrestricted Physical Note may exchange such Unre-   stricted Physical Note for a beneficial interest in an Unrestricted Global Note or trans-   fer such Unrestricted Physical Note 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 shall cancel the applicable Unre-   stricted Physical Note and increase or cause to be increased the aggregate principal   amount of one of the Unrestricted Global Notes.  If any such transfer or exchange is   effected pursuant to this subparagraph (iii) at a time when an Unrestricted Global Note   has not yet been issued, the Issuer shall issue and, upon receipt of a written order of   the Issuer in the form of an Officer’s Certificate in accordance with Section 2.01, the   Trustee shall authenticate one or more Unrestricted Global Notes in an aggregate prin-   cipal amount equal to the aggregate principal amount of Unrestricted Physical Notes   transferred or exchanged pursuant to this subparagraph (iii).   (iv) Unrestricted Physical Notes to Beneficial Interests in Restricted Global   Notes.  An Unrestricted Physical Note cannot be exchanged for, or transferred to a   Person who takes delivery thereof in the form of, a beneficial interest in a Restricted   Global Note.   (e) Transfer and Exchange of Physical Notes for Physical Notes.  Upon re-   quest by a Holder of Physical Notes and such Holder’s compliance with the provisions of this   Section 2.17(e), the Registrar shall register the transfer or exchange of Physical Notes.  Prior   to such registration of transfer or exchange, the requesting Holder shall present or surrender to   the Registrar the Physical 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 shall provide any additional   certifications, documents and information, as applicable, required pursuant to the following   provisions of this Section 2.17(e).   (i) Restricted Physical Notes to Restricted Physical Notes.  A Restricted   Physical Note may be transferred to and registered in the name of a Person who takes   delivery thereof in the form of a Restricted Physical Note if the Registrar receives the   following:   (A) if the transfer will be made pursuant to Rule 144A under the   Securities Act, then the transferor must deliver a certificate in the form of Ex-   hibit F, including the certifications in item (1) thereof;     





 






-41-      (B) if the transfer will be made pursuant to Rule 903 or Rule 904   under the Securities Act, then the transferor must deliver a certificate in the   form of Exhibit F, including the certifications in item (2) thereof;   (C) if the transfer will be made pursuant to an exemption from the   registration requirements of the Securities Act in accordance with Rule 144   under the Securities Act, a certificate to the effect set forth in Exhibit F, includ-   ing the certifications in item (3)(a) thereof;   (D) [reserved]; and   (E) if such transfer will be made to the Issuer or a Subsidiary there-   of, a certificate to the effect set forth in Exhibit F, including the certifications   in item (3)(b) thereof.   (ii) Restricted Physical Notes to Unrestricted Physical Notes.  Any Re-   stricted Physical Note may be exchanged by the Holder thereof for an Unrestricted   Physical Note or transferred to a Person who takes delivery thereof in the form of an   Unrestricted Physical Note if the Registrar receives the following:   (1) if the Holder of such Restricted Physical Note proposes to ex-   change such Restricted Physical Note for an Unrestricted Physical Note, a cer-   tificate from such Holder in the form of Exhibit G, including the certifications   in item (1)(c) thereof; or   (2) if the Holder of such Restricted Physical Note proposes to trans-   fer such Notes to a Person who shall take delivery thereof in the form of an   Unrestricted Physical Note, a certificate from such Holder in the form of Ex-   hibit F, including the certifications in item (4) thereof,   and, in each such case, an Opinion of Counsel in form reasonably acceptable to the Is-   suer 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.   (iii) Unrestricted Physical Notes to Unrestricted Physical Notes.  A Holder   of an Unrestricted Physical Note may transfer such Unrestricted Physical Notes to a   Person who takes delivery thereof in the form of an Unrestricted Physical Note at any   time.  Upon receipt of a request to register such a transfer, the Registrar shall register   the Unrestricted Physical Notes pursuant to the instructions from the Holder thereof.     





 






-42-      (iv) Unrestricted Physical Notes to Restricted Physical Notes.  An Unre-   stricted Physical Note cannot be exchanged for, or transferred to a Person who takes   delivery thereof in the form of, a Restricted Physical Note.   (f) Cancellation and/or Adjustment of Global Notes.  At such time as all   beneficial interests in a particular Global Note have been exchanged for Physical Notes or a   particular Global Note has been redeemed, repurchased or canceled in whole and not in part,   each such Global Note shall be returned to or retained and canceled by the Trustee in accord-   ance with Section 2.12.  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 Physical Notes, the principal   amount of Notes represented by such Global Note shall be reduced accordingly and an en-   dorsement shall be made on such Global Note by the Trustee or by the Depositary at the di-   rection of the Trustee to reflect such reduction; and if the beneficial interest is being ex-   changed for or transferred to a Person who will take delivery thereof in the form of a benefi-   cial interest in another Global Note, such other Global Note shall be increased accordingly   and an endorsement shall be made on such Global Note by the Trustee or by the Depositary at   the direction of the Trustee to reflect such increase.   (g) Private Placement Legend.  Upon the registration of transfer, exchange   or replacement of Notes not bearing the Private Placement Legend, the Registrar shall deliver   Notes that do not bear the Private Placement Legend.  Upon the registration of transfer, ex-   change or replacement of Notes bearing the Private Placement Legend, the Registrar shall de-   liver only Notes that bear the Private Placement Legend unless (i) there is delivered to the   Registrar an Opinion of Counsel reasonably satisfactory to the Issuer and the Trustee to the   effect that neither such legend nor the related restrictions on transfer are required in order to   maintain compliance with the provisions of the Securities Act or (ii) such Note has been sold   pursuant to an effective registration statement under the Securities Act and the Registrar has   received an Officer’s Certificate from the Issuer to such effect.   (h) General.  All Global Notes and Physical Notes issued upon any regis-   tration of transfer or exchange of Global Notes or Physical Notes shall be the valid obligations   of the Issuer, evidencing the same debt, and entitled to the same benefits under this Indenture,   as the Global Notes or Physical Notes surrendered upon such registration of transfer or ex-   change.   The Registrar shall retain for a period of two years copies of all letters, notices   and other written communications received pursuant to Section 2.16 or this Section 2.17.  The   Issuer shall have the right to inspect and make copies of all such letters, notices or other writ-   ten communications at any reasonable time upon the giving of reasonable notice to the Regis-   trar.     





 






-43-      None of the Issuer, the Trustee, Paying Agent nor any Agent of the Issuer shall   have any responsibility or liability in any respect of the records relating to or payment made   on account of beneficial interests in a Global Note, or for maintaining, supervising or review-   ing any records relating to such beneficial ownership interests.   Neither the Trustee nor the Registrar shall have any obligation or duty to moni-   tor, 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 (in-   cluding any transfers between or among Agent Members 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 substantial compliance as to   form with the express requirements hereof.   SECTION 2.18. Computation of Interest.   Interest on the Notes shall be computed on the basis of a 360-day year of   twelve 30-day months and actual days elapsed.   ARTICLE THREE      REDEMPTION   SECTION 3.01. Election To Redeem; Notices to Trustee.   If the Issuer elects to redeem Notes pursuant to paragraph 5 of the Notes, at   least 30 days prior to the Redemption Date, the Issuer shall notify the Trustee in writing of the   Redemption Date, the principal amount of Notes to be redeemed and the redemption price(s)   (or manner of calculation if not then known), and deliver to the Trustee an Officer’s Certifi-   cate stating that such redemption will comply with the conditions contained in paragraph 5 of   the Notes.  Notice given to the Trustee pursuant to this Section 3.01 may not be revoked after   the time that notice is given to Noteholders pursuant to Section 3.03.  If the redemption price   is not known at the time such notice is to be given, the actual redemption price, calculated as   described in the terms of the Notes, will be set forth in an Officer’s Certificate delivered to the   Trustee no later than two Business Days prior to the redemption date.   SECTION 3.02. Selection by Trustee of Notes To Be Redeemed.   If less than all of the Notes are to be redeemed at any time, selection of Notes   for redemption will be made by the Trustee in compliance with the requirements of the prin-   cipal national securities exchange, if any, on which the Notes to be redeemed are listed or, if   the Notes are not so listed, on a pro rata basis (or, in the case of Global Notes, the Notes will   be selected for redemption based on the Depositary’s applicable procedures); provided that no     





 






-44-      Notes with a principal amount of $2,000 or less shall be redeemed in part.  For all purposes of   this Indenture unless the context otherwise requires, provisions of this Indenture that apply to   Notes called for redemption also apply to portions of Notes called for redemption. Redemp-   tion amounts shall only be paid upon presentation and surrender of any such Notes to be re-   deemed to the Trustee at its Corporate Trust Office.     SECTION 3.03. Notice of Redemption.   At least 30 days, and no more than 60 days, before a Redemption Date, the Is-   suer shall send, or cause to be sent, a notice of redemption electronically or by first-class mail   to each Holder of Notes to be redeemed at his or her last address as the same appears on the   registry books maintained by the Registrar pursuant to Section 2.06.   The notice shall identify the Notes to be redeemed (including the CUSIP   and/or ISIN numbers thereof) and shall state:   (1) the Redemption Date;   (2) the redemption price and the amount of premium (or manner of calcula-   tion if not then known) and accrued interest to be paid;   (3) if any Note is being redeemed in part, the portion of the principal   amount of such Note to be redeemed and that, after the Redemption Date and upon   surrender of such Note, a new Note or Notes in principal amount equal to the unre-   deemed portion will be issued;   (4) the name and address of the Paying Agent;   (5) that Notes called for redemption must be surrendered to the Paying   Agent to collect the redemption price;   (6) that unless the Issuer defaults in making the redemption payment, inter-   est on Notes called for redemption ceases to accrue on and after the Redemption Date;   (7) that paragraph 5 of the Notes is the provision of the Notes pursuant to   which the redemption is occurring;    (8) the aggregate principal amount of Notes that are being redeemed;   (9) any conditions precedent to such redemption in reasonable detail; and   (10) that no representation is made as to the correctness or accuracy of the   CUSIP or ISIN numbers printed in the notice or on the Notes, and that reliance may be   placed only on the other identification numbers printed on the Notes.     





 






-45-      At the Issuer’s written request made at least five Business Days prior to the   date on which notice is to be given (unless a shorter notice shall be agreed to in writing by the   Trustee), together with the notice of redemption to be given, the Trustee shall give the notice   of redemption in the Issuer’s name and at the Issuer’s sole expense.   If any notice of redemption is subject to one or more conditions precedent, any   such redemption may be rescinded in whole and not in part at any time prior to the close of   business on the Business Day prior to the Redemption Date if the Issuer delivers an Officer’s   Certificate to the Trustee describing the failure of the condition in reasonable detail and re-   scinding the redemption.  The Trustee shall promptly provide a copy of such Officer’s Certifi-   cate to the Holders in the same manner in which the notice of redemption was given.   SECTION 3.04. Effect of Notice of Redemption.   Once the notice of redemption described in Section 3.03 is sent and subject to   the proviso to this sentence, Notes called for redemption become due and payable on the Re-   demption Date and at the redemption price, including any premium, plus interest accrued to   the Redemption Date; provided, however, that any redemption and notice thereof pursuant to   this Indenture may, in the Issuer’s discretion, be subject to the satisfaction of one or more   conditions precedent described in such notice and in which case if and/or to the extent such   condition(s) precedent is/are not satisfied, the Issuer shall have no obligation to redeem Notes   on such Redemption Date.  Upon surrender to the Paying Agent, such Notes shall be paid at   the redemption price, including any premium, plus interest accrued to the Redemption Date;   provided that if the Redemption Date is after a regular record date and on or prior to the Inter-   est Payment Date, the accrued interest shall be payable to the Holder of the redeemed Notes   registered on the relevant record date; and provided, further, that if a Redemption Date is a   Legal Holiday, payment shall be made on the next succeeding Business Day and no interest   shall accrue for the period from such Redemption Date to such succeeding Business Day.   SECTION 3.05. Deposit of Redemption Price.   On or prior to 10:00 A.M., New York City time, on each Redemption Date, the   Issuer shall deposit with the Paying Agent U.S. Dollars sufficient to pay the redemption price   of, including premium, if any, and accrued interest on any and all Notes to be redeemed on   that date (other than Notes or portions thereof called for redemption on that date which have   been delivered by the Issuer to the Trustee for cancellation).   On and after any Redemption Date, if money sufficient to pay the redemption   price of, including premium, if any, and accrued interest on all Notes called for redemption   shall have been made available in accordance with the immediately preceding paragraph, the   Notes called for redemption will cease to accrue interest and the only right of the Holders of   such Notes will be to receive payment of the redemption price of and, subject to the first pro-   viso in Section 3.04, accrued and unpaid interest on such Notes to the Redemption Date.  If     





 






-46-      any Note surrendered for redemption shall not be so paid, interest will be paid, from the Re-   demption Date until such redemption payment is made, on the unpaid principal of the Note   and (to the extent permitted by applicable law) any interest not paid on such unpaid principal,   in each case at the rate and in the manner provided in the Notes.   SECTION 3.06. Notes Redeemed in Part.   Upon surrender of a Note that is redeemed in part, the Issuer shall execute and,   upon receipt of a written order of the Issuer in the form of an Officer’s Certificate in accord-   ance with Section 2.01, the Trustee shall authenticate for the Holder thereof a new Note equal   in principal amount to the unredeemed portion of the Note surrendered.   ARTICLE FOUR      COVENANTS   SECTION 4.01. Payment of Notes.   The Issuer shall pay the principal of and interest on the Notes on the dates and   in the manner provided in the Notes and this Indenture.  An installment of principal or interest   shall be considered paid on the date it is due if the Trustee or the Paying Agents hold by 10:00   A.M. Eastern Time on that date U.S. Dollars designated for and sufficient to pay such install-   ment.   The Issuer shall pay interest on overdue principal (including post-petition in-   terest in a proceeding under any Bankruptcy Law), and overdue interest, to the extent lawful,   at the rate specified in the Notes.   SECTION 4.02. Maintenance of Office or Agency.   (a) The Issuer shall maintain an office or agency (which may be an office   of the Trustee or an Affiliate of the Trustee or Registrar) where Notes may be surrendered for   registration of transfer or for exchange and where notices and demands to or upon the Issuer   in respect of the Notes and this Indenture may be served.  The Issuer shall give prompt written   notice to the Trustee of the location, and any change in the location, of such office or agency.    If at any time the Issuer shall fail to maintain any such required office or agency or shall fail   to furnish the Trustee with the address thereof, such presentations, surrenders, notices and   demands may be made or served at the Corporate Trust Office of the Trustee.   (b) The Issuer may also from time to time designate one or more other of-   fices or agencies where the Notes may be presented or surrendered for any or all such purpos-   es and may from time to time rescind such designations.  The Issuer shall give prompt written     





 






-47-      notice to the Trustee of any such designation or rescission and of any change in the location of   any such other office or agency.   SECTION 4.03. Legal Existence.   Except as permitted by Article Five, the Issuer shall do or cause to be done all   things necessary to preserve and keep in full force and effect (i) its legal existence, and the   corporate, partnership or other existence of each Subsidiary, in accordance with the respective   organizational documents (as the same may be amended from time to time) of the Issuer and   each such Subsidiary, and (ii) the material rights (charter and statutory) and franchises of the   Issuer and such Subsidiaries; provided that the Issuer shall not be required to preserve any   such right, franchise, or the corporate, partnership or other existence of any of its Subsidiaries   if the Board of Directors of the Issuer or such Subsidiary shall determine that the preservation   thereof is no longer desirable in the conduct of the business of the Issuer and its Subsidiaries,   taken as a whole, and that the loss thereof is not adverse in any material respect to the Hold-   ers.   SECTION 4.04. [Reserved].   SECTION 4.05. Waiver of Stay, Extension or Usury Laws.   Each of the Issuer and the Guarantors covenants (to the extent that it may law-   fully do so) that it shall not at any time insist upon, or plead (as a defense or otherwise) or in   any manner whatsoever claim or take the benefit or advantage of, any stay or extension law or   any usury law or other law which would prohibit or forgive the Issuer and the Guarantors   from paying all or any portion of the principal of, premium, if any, and/or interest on the   Notes as contemplated herein, wherever enacted, now or at any time hereafter in force, or   which may affect the covenants or the performance of this Indenture; and (to the extent that   they may lawfully do so) the Issuer and the Guarantors hereby expressly waives all benefit or   advantage of any such law, and covenants that it will not hinder, delay or impede the execu-   tion of any power herein granted to the Trustee, but will suffer and permit the execution of   every such power as though no such law had been enacted.   SECTION 4.06. Compliance Certificate.   (a) The Issuer shall deliver to the Trustee, within 120 days after the end of   each Fiscal Year,  an Officer’s Certificate (as enumerated by and in compliance with Section   314(a)(4) of the TIA) stating that such Officer has conducted or supervised a review of the   activities the Issuer and its Subsidiaries and the Issuer’s and its Subsidiaries’ performance un-   der this Indenture during such Fiscal Year, and further stating that, to such Officer’s   knowledge, based upon such review, the Issuer has fulfilled all obligations under this Inden-   ture or, if there has been a Default under this Indenture that is continuing, a description of the   event and what action the Issuer is taking or propose to take with respect thereto.     





 






-48-      (b) The Issuer shall deliver to the Trustee, within ten Business Days after   an executive officer of the Issuer becomes aware of any Default or Event of Default, a state-   ment specifying such Default or Event of Default.   (c) The Issuer shall provide written notice to the Trustee of any change in   the Issuer’s Fiscal Year.   SECTION 4.07. Taxes.   The Issuer shall, and shall cause each of its Subsidiaries to, pay prior to delin-   quency all material taxes, assessments, and governmental levies; provided, however, that, nei-   ther the Issuer nor any of its Subsidiaries shall be required to pay or discharge or cause to be   paid or discharged any such tax, assessment, charge or claim whose amount, applicability or   validity is being contested in good faith by appropriate proceedings.   SECTION 4.08. Repurchase at the Option of Holders upon Change of Control.   (a) Upon the occurrence of a Change of Control or, at the Issuer’s option,   prior to the consummation of a Change of Control but after it is publicly announced, the Issu-   er will make an offer, as described below (the “Change of Control Offer”), to the Holders of   all of the outstanding Notes at an offer price in cash equal to 101% of the principal amount   tendered, plus accrued and unpaid interest, if any, thereon to, but not including, the date of   purchase (the “Change of Control Payment”).   (b) Within 30 days following any Change of Control or, at the Issuer’s op-   tion, prior to the consummation of such Change of Control but after the public announcement   thereof, the Issuer will mail (or to the extent permitted or required by applicable Depositary   procedures or regulations with respect to global Notes, send electronically) a notice to each   Holder and the Trustee.  The notice shall describe the transaction or transactions that consti-   tute the Change of Control and offer to repurchase Notes on the purchase date specified in   such notice (which must be no earlier than 30 days nor later than 60 days from the date such   notice is mailed, other than as required by law) (the “Change of Control Payment Date”) pur-   suant to the procedures required by this Indenture and described in such notice.  Such obliga-   tion will not continue after a discharge of the Issuer or defeasance from its obligations with   respect to the Notes.  Such notice shall state:   (1) that the Change of Control Offer is being made pursuant to this Section   4.08 and that all Notes validly tendered and not validly withdrawn will be accepted for   payment;   (2) the Change of Control Payment and the Change of Control Payment   Date (which shall be no earlier than 30 days nor later than 60 days from the date such   notice is sent, other than as may be required by law);     





 






-49-      (3) that any Note not tendered will continue to accrue interest;   (4) that, unless the Issuer defaults in making payment therefor, any Note   accepted for payment pursuant to the Change of Control Offer shall cease to accrue in-   terest after the Change of Control Payment Date;   (5) that Holders electing to have a Note purchased pursuant to the Change   of Control Offer will be required to surrender the Note, with the form entitled “Option   of Holder to Elect Purchase” on the reverse of the Note completed, to the Paying   Agent and Registrar for the Note at the address specified in the notice prior to the   close of business on the Business Day prior to the Change of Control Payment Date;   (6) that Holders will be entitled to withdraw their election if the Paying   Agent receives, not later than the third Business Day prior to the Change of Control   Payment Date, a telegram, telex, facsimile transmission or letter setting forth the name   of the Holder, the principal amount of the Notes the Holder delivered for purchase and   a statement that such Holder is withdrawing its election to have such Note purchased;   (7) that Holders whose Notes are purchased only in part will be issued new   Notes in a principal amount equal to the unpurchased portion of the Notes surren-   dered; provided, however, that each Note purchased and each new Note issued shall be   in a principal amount of $2,000 or integral multiples of $1,000 in excess of $2,000;   and   (8) the circumstances and relevant facts regarding such Change of Control.   (c) On the Change of Control Payment Date, the Issuer shall, to the extent   lawful:   (1) accept for payment all Notes or portions thereof (in minimum amounts   of $2,000 or an integral multiple of $1,000 in excess thereof) properly tendered pursu-   ant to the Change of Control Offer;   (2) deposit with the Paying Agent an amount equal to the Change of Con-   trol Payment in respect of all Notes or portions thereof so tendered; and   (3) deliver or cause to be delivered to the Trustee for cancellation all Notes   so accepted together with an Officer’s Certificate stating the aggregate principal   amount of Notes (or portions thereof) being purchased by the Issuer.   Promptly following the deposit with the Paying Agent of the moneys described   in Section 4.08(c)(2) above and the delivery of the Officer’s Certificate described in Section   4.08(c)(3) above, the Paying Agent will remit to each Holder of Notes so tendered the Change     





 






-50-      of Control Payment for such Notes, and the Issuer shall execute and, upon receipt of a written   order of the Issuer in the form of an Officer’s Certificate in accordance with Section 2.01, the   Trustee shall promptly authenticate and deliver (or cause to be transferred by book entry) to   each Holder of Notes a new Note equal in principal amount to any unpurchased portion of the   Notes surrendered, if any; provided that each such new Note shall be in a principal amount of   $2,000 or an integral multiple of $1,000 in excess thereof. The Issuer shall publicly announce   the results of the Change of Control Offer on or as soon as practicable after the Change of   Control Payment Date.   If Holders of not less than 90% in aggregate principal amount of the then out-   standing Notes validly tender and do not withdraw such Notes in a Change of Control Offer   and the Issuer, or any other Person making a Change of Control Offer in lieu of the Issuer as   described below, purchases all of the Notes validly tendered and not withdrawn by such hold-   ers, the Issuer will have the right, upon not less than 15 nor more than 30 days’ prior notice,   given not more than 15 days following such purchase pursuant to the Change of Control Offer   described above, to redeem all Notes that remain outstanding following such purchase at a   redemption price in cash equal to the applicable Change of Control Payment plus, to the ex-   tent not included in the Change of Control Payment, accrued and unpaid interest to not includ-   ing the date of redemption   Upon the payment of the Change of Control Payment, the Trustee shall, sub-   ject to the provisions of Section 2.16, return the Notes purchased to the Issuer for cancella-   tion.  The Trustee may act as the Paying Agent for purposes of any Change of Control Offer.   (d) The Issuer 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 4.08   with respect to a Change of Control Offer made by the Issuer and purchases all Notes validly   tendered and not withdrawn under such Change of Control Offer or (2) notice of redemption   has been given or will be given pursuant to this Indenture as described in Article Three, prior   to the date the Issuer is required to send notice of the Change of Control Offer to the Holders   of the Notes, unless and until there is a default in payment of the applicable redemption price.    Notwithstanding anything to the contrary contained herein, a Change of Control Offer may be   made in advance of a Change of Control, conditioned upon the consummation of such Change   of Control, if a definitive agreement is in place for the Change of Control at the time the   Change of Control Offer is made and such Change of Control Offer is otherwise made in   compliance with the provisions of this Section 4.08.   (e) The Issuer shall comply with the requirements of Rule 14e-1 under the   Exchange Act and any other securities laws and regulations thereunder to the extent such laws   and regulations are applicable in connection with the repurchase of the Notes as a result of a   Change of Control. To the extent that the provisions of any securities laws or regulations con-   flict with provisions of this Section 4.08, the Issuer shall comply with the applicable securities     





 






-51-      laws and regulations and shall not be deemed to have breached its obligations under this para-   graph by virtue thereof.   SECTION 4.09. Limitation on Asset Disposition.   (a) The Parent Guarantor shall not, and shall not permit any of its Subsidi-   aries to, directly or indirectly, consummate any Asset Disposition unless:    (1) the Parent Guarantor or such Subsidiary receives consideration at least   equal to the fair market value (such fair market value to be determined in good faith   by the Issuer on the date of contractually agreeing to such Asset Disposition) of the   equity or assets subject to such Asset Disposition;    (2) at least 75% of the consideration received by the Parent Guarantor or   such Subsidiary is in the form of cash or cash equivalents, Additional Assets or any   combination thereof (collectively, the “Cash Consideration”); and    (3) within 365 days, including the 365th day, from the later of the date of   such Asset Disposition or the receipt of such Net Available Cash, an amount equal to   100% of the Net Available Cash from such Asset Disposition is applied by the Parent   Guarantor (or such Subsidiary, as the case may be) at its option:    (A) to prepay, repay, redeem or purchase Secured Debt of the Issuer   or any Guarantor or Indebtedness of a Wholly Owned Subsidiary that is not a   Guarantor (in each case other than Indebtedness owed to the Issuer or an Affil-   iate of the Issuer); provided that such prepayment, repayment, redemption or   purchase permanently retires, or reduces the related loan commitment (if any)   for, such Indebtedness in an amount equal to the principal amount so prepaid,   repaid, redeemed or purchased;    (B) to acquire Additional Assets or to make any other capital ex-   penditures (provided that this requirement shall be deemed satisfied if the Par-   ent Guarantor (or such Subsidiary, as the case may be) by the end of such 365-   day period has entered into a binding agreement under which it is contractually   committed to acquire Additional Assets and such acquisition is consummated   within the later of the end of such 365-day period or within 180 days from the   date on which such binding agreement is entered into);    (C) to make an offer to the Holders of the Notes (and to holders of   other Pari Passu Indebtedness of the Issuer designated by the Issuer) to pur-   chase Notes (and such other Pari Passu Indebtedness of the Issuer) pursuant to   and subject to the conditions contained herein, as set forth below (other than   with respect to Excess Proceeds and that such offer may be made at any time     





 






-52-      prior to the end of such 365-day period), and in the instruments governing such   Pari Passu Indebtedness; and    (D) to the extent of the balance of such Net Available Cash after   application in accordance with clauses (A), (B) and (C), for any purpose per-   mitted by the terms of this Indenture.    Pending application of Net Available Cash pursuant to this Section 4.09, such   Net Available Cash shall be applied to temporarily reduce revolving credit Indebtedness or in   any manner not prohibited by this Indenture.    (b) For the purposes of this Section 4.09, the following are deemed to be   Cash Consideration:    (1) any liabilities, as shown on the Parent Guarantor’s or any of its Subsid-   iaries’ most recent balance sheet, of the Parent Guarantor or such Subsidiary (other   than contingent liabilities) that are assumed by the transferee of any such assets either   by operation of law or pursuant to (A) a customary novation agreement that releases   the Parent Guarantor or such Subsidiary from further liability or (B) an assignment   agreement that includes, in lieu of such a release, the agreement of the transferee or its   parent company to indemnify and hold harmless the Issuer or such Subsidiary from   and against any loss, liability or cost in respect of such assumed liability;    (2) any securities, notes or other obligations received by the Parent Guar-   antor or any of its Subsidiaries from such transferee that are converted by the Parent   Guarantor or such Subsidiary into cash or cash equivalents within 360 days after such   Asset Disposition, to the extent of the cash and cash equivalents received in that con-   version; and    (3) any Designated Non-cash Consideration received by the Parent Guar-   antor or any of its Subsidiaries in such Asset Disposition having an aggregate Fair   Market Value, taken together with all other Designated Non-cash Consideration re-   ceived pursuant to this clause that has at that time not been converted into cash or a   cash equivalent, not to exceed the greater of (x) $100.0 million and (y) 2.0% of Con-   solidated Total Assets at the time of the receipt of such Designated Non-cash Consid-   eration (with the fair market value of each item of Designated Non-cash Consideration   being measured at the time received and without giving effect to subsequent changes   in value).    (c) The amount of Net Available Cash not applied or invested as provided   above will constitute “Excess Proceeds” (other than any Net Available Cash remaining after   the Issuer has made an offer to purchase Notes pursuant to clause (C) above).  When the ag-   gregate amount of Excess Proceeds equals or exceeds $100.0 million, the Issuer shall make an     





 






-53-      offer to purchase Notes (an “Offer”) within ten Business Days thereof, and shall purchase   Notes tendered pursuant to an Offer by the Issuer for the Notes and other Pari Passu Indebt-   edness that contemporaneously requires the purchase, prepayment or redemption of such In-   debtedness with the proceeds of sales of assets at a purchase price of 100% of their principal   amount without premium, plus accrued but unpaid interest (or, in respect of such other Pari   Passu Indebtedness, such lesser price, if any, as may be provided for by the terms of such Pari   Passu Indebtedness) to, but excluding, the date such Offer is consummated, in accordance   with the procedures (including prorating in the event of oversubscription) set forth in this In-   denture and the terms of such other Pari Passu Indebtedness. If any Excess Proceeds remain   after consummation of an Offer and the contemporaneous offer with respect to any other Pari   Passu Indebtedness contemplated above, the Issuer may use those Excess Proceeds for any   purpose not otherwise prohibited by this Indenture. If the aggregate purchase price of the se-   curities tendered exceeds the amount of Excess Proceeds, the Issuer shall allocate the Excess   Proceeds between such securities on a pro rata basis and will select the Notes to be purchased   on a pro rata basis but in denominations of $2,000 principal amount or integral multiples of   $1,000 in excess thereof. The remainder of the Excess Proceeds allocable to the other Pari   Passu Indebtedness will be repurchased as provided pursuant to the terms of such Indebted-   ness. Upon completion of such an Offer to purchase, Excess Proceeds will be deemed to be   reset to zero.    (d) The Issuer shall comply, to the extent applicable, with the requirements   of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereun-   der to the extent such laws and regulations are applicable in connection with the repurchase of   Notes pursuant to this Section 4.09. To the extent that the provisions of any securities laws or   regulations conflict with provisions of this Section 4.09, the Issuer shall comply with the ap-   plicable securities laws and regulations and shall not be deemed to have breached its obliga-   tions under this Section 4.09 by virtue of its compliance with such securities laws or regula-   tions.   SECTION 4.10. Limitation on Restricted Payments.   The Parent Guarantor will not, and will not permit any of its Subsidiaries to,   directly or indirectly, make any Restricted Payment if at the time of such Restricted Payment:    (a) a Default shall have occurred and be continuing or shall occur as a con-   sequence thereof;    (b) after giving effect to such Restricted Payment (including, without limi-   tation, the incurrence of any Indebtedness to finance such Restricted Payment), the   Consolidated Fixed Charge Coverage Ratio would be less than 2:00 to 1:00; or    (c) the amount of such Restricted Payment, when added to the aggregate   amount of all other Restricted Payments made after November 26, 2013 (other than     





 






-54-      Restricted Payments made pursuant to clauses (b), (c), (d), (e), (f), (g) or (h) of the   next paragraph), exceeds the sum (the “Restricted Payments Basket”) of (without du-   plication):    (1) 50% of Consolidated Net Income of the Parent Guarantor and   its Subsidiaries determined in accordance with GAAP for the period (taken as   one accounting period) commencing on July 1, 2013 to and including the last   day of the fiscal quarter ended immediately prior to the date of such calculation   for which consolidated financial statements are available (or, if such Consoli-   dated Net Income shall be a deficit, minus 100% of such aggregate deficit),   plus    (2) 100% of the aggregate net cash proceeds and the fair market   value, as determined in good faith by the Parent Guarantor, of property and   marketable securities received by the Parent Guarantor from the issuance and   sale of Qualified Equity Interests of the Parent Guarantor after November 26,   2013 or from the issue or sale of convertible or exchangeable Disqualified Eq-   uity Interests of the Parent Guarantor or convertible or exchangeable debt secu-   rities of the Parent Guarantor, in each case that have been converted into or ex-   changed for Qualified Equity Interests of the Parent Guarantor, other than (A)   any such proceeds which are used to redeem Notes in accordance with para-   graph 5 of the Notes or (B) any such proceeds or assets received from a Sub-   sidiary of the Parent Guarantor, plus    (3) the aggregate amount by which Indebtedness incurred by the   Parent Guarantor or any of its Subsidiaries subsequent to November 26, 2013   is reduced on the Parent Guarantor’s consolidated balance sheet upon the con-   version or exchange (other than by a Subsidiary of the Parent Guarantor) into   Qualified Equity Interests of the Parent Guarantor (less the amount of any   cash, or the fair value of assets, distributed by the Parent Guarantor or any   Subsidiary upon such conversion or exchange), plus   (4) 50% of any cash dividends or distributions received by the Par-   ent Guarantor or any of its Subsidiaries after November 26, 2013 from any un-   consolidated Person, to the extent that such dividends or distributions were not   otherwise included in Consolidated Net Income.   The foregoing provisions will not prohibit:    (a) the payment by the Parent Guarantor of any dividend or the consumma-   tion of any redemption within 60 days after the date of declaration thereof or the giv-   ing of the redemption notice, as the case may be, if on the date of declaration or no-    





 






-55-      tice, the dividend or redemption payment would have complied with the provisions of   this Indenture;    (b) the repurchase or redemption of any Equity Interests of the Parent   Guarantor in exchange for, or out of the proceeds of the substantially concurrent issu-   ance and sale of, Qualified Equity Interests;    (c) payments by the Parent Guarantor to redeem Equity Interests of the   Parent Guarantor held by officers, directors or employees or former officers, directors   or employees (or their transferees, estates or beneficiaries under their estates) of the   Parent Guarantor or its Subsidiaries, upon their death, disability, retirement, severance   or termination of employment or service or other repurchase event pursuant to any   management equity plan or stock option plan, shareholders’ agreement or any other   management or employee benefit plan or agreement or arrangement; provided that the   aggregate cash consideration paid for all such redemptions shall not exceed (A) $10.0   million in any calendar year (with unused amounts in any calendar year being permit-   ted to be carried over to succeeding calendar years subject to a maximum of $20.0   million in any calendar year); plus (B) the amount of any net cash proceeds received   by the Parent Guarantor from the issuance and sale after November 26, 2013 of Quali-   fied Equity Interests of the Parent Guarantor to officers, directors or employees of the   Parent Guarantor or its Subsidiaries that have not been applied to the payment of Re-   stricted Payments pursuant to this clause (c), plus (C) the net cash proceeds of any   “key-man” life insurance policies that have not been applied to the payment of Re-   stricted Payments pursuant to this clause (c); provided that neither (x) cancellation of   Indebtedness owing to the Parent Guarantor from any current or former officer, direc-   tor or employee (or any permitted transferees thereof) of the Parent Guarantor or any   of its Subsidiaries (or any direct or indirect parent company thereof), in connection   with a repurchase of Equity Interests of the Parent Guarantor from such Persons nor   (y) any payments or other obligations arising in respect of Equity Interests of the Par-   ent Guarantor held by officers, directors or employees or former officers, directors or   employees (or their transferees, estates or beneficiaries under their estates) in connec-   tion with or resulting from the announcement or consummation of a Change of Con-   trol, will be deemed to constitute a Restricted Payment for purposes of this Section   4.10 or any other provisions of this Indenture;    (d) repurchases, acquisitions or retirements for value of Equity Interests (i)   deemed to occur upon the exercise of stock options, warrants, rights to acquire Equity   Interests or other convertible securities if the Equity Interests represent a portion of the   exercise price thereof, or in connection with the withholding of a portion of the Equity   Interests granted or awarded to an employee to pay for the taxes payable by such em-   ployee upon such grant or award or (ii) upon cancellation or forfeiture of stock op-   tions, warrants, rights to acquire Equity Interests or other convertible securities;      





 






-56-      (e) Restricted Payments to allow the payment of cash in lieu of the issu-   ance of fractional shares upon (i) the exercise of options or warrants or (ii) the conver-   sion or exchange of Equity Interests of any Person (including in a merger, consolida-   tion, amalgamation or similar transaction) and payments of cash to dissenting share-   holders in connection with a merger, consolidation, amalgamation, transfer of assets;    (f) the payment of any dividend (or, in the case of any partnership or lim-   ited liability company, any similar distribution) by a Subsidiary of the Parent Guaran-   tor to the holders of its Equity Interests on a pro rata basis;    (g) Restricted Payments in an amount not to exceed $200.0 million since   the Issue Date (provided, however, that any Restricted Payment made under clause (g)   of the second paragraph of Section 4.10 of the 2021 Indenture on or after November   26, 2013 and prior to the Issue Date shall be treated as a utilization of this clause (g));    (h) the repurchase or redemption of common stock or Preferred Stock pur-   chase rights of the Parent Guarantor issued in connection with any stockholders rights   plan; and    (i) other Restricted Payments if, at the time of the making of such pay-   ments, and after giving effect thereto (including, without limitation, the incurrence of   any Indebtedness to finance such payment), the Total Leverage Ratio would not ex-   ceed 3.00 to 1.00,    provided that (a) in the case of any Restricted Payment pursuant to clause (g) or (i) of this   Section 4.10, no Default shall have occurred and be continuing or shall occur as a conse-   quence thereof and (b) no issuance and sale of Qualified Equity Interests that are used to   make a payment pursuant to clauses (b) or (c)(B) of this Section 4.10 shall increase the Re-   stricted Payments Basket.    For purposes of determining compliance with this Section 4.10, in the event that a   payment or other action meets the criteria of more than one of the exceptions described in   clauses (a) through (i) above, or is entitled to be made pursuant to the first paragraph of this   Section 4.10, the Issuer will be permitted to classify such payment or other action on the date   of its occurrence in any manner that complies with this Section 4.10. Payments or other ac-   tions permitted by this Section 4.10 need not be permitted solely by reference to one provision   permitting such payment or other action, but may be permitted in part by one such provision   and in part by one or more other provisions of this Section 4.10 permitting payment or other   action.     If the Parent Guarantor or any of its Subsidiaries makes a Restricted Payment which,   at the time of the making of such Restricted Payment, in the good faith determination of the   Parent Guarantor or such Subsidiary, would be permitted under the requirements of this In-    





 






-57-      denture, such Restricted Payment shall be deemed to have been made in compliance with this   Indenture notwithstanding any subsequent adjustment made in good faith to the Parent Guar-   antor’s financial statements affecting Consolidated Net Income.    SECTION 4.11. Limitation on Liens.   The Parent Guarantor will not at any time create, incur, assume or guarantee,   and will not cause or permit any of its Subsidiaries to create, incur, assume or guarantee, any   Secured Debt (the “Initial Security Interest”), and the Parent Guarantor will not at any time   create, and will not cause or permit any of its Subsidiaries to create, any Security Interest se-   curing any Indebtedness existing on the date hereof that would constitute Secured Debt if it   were secured by a Security Interest, without first making effective provision whereby the   Notes shall be secured by the Security Interest securing such Secured Debt equally and rata-   bly with any and all other obligations and indebtedness so secured, so long as such other obli-   gations and indebtedness shall be so secured; provided, however, that the foregoing prohibi-   tion will not prevent the creation, incurrence, assumption or guarantee of the following per-   mitted Security Interests (the “Permitted Security Interests”):    (1) Security Interests on property acquired, constructed, developed or im-   proved after the date of this Indenture by the Parent Guarantor or any of its Subsidiar-   ies and created prior to or contemporaneously with, or within 180 days after the acqui-   sition, construction, development or improvement of property that is a parcel of real   property, a building, machinery or equipment;    (2) Security Interests on property at the time of acquisition which secure   obligations assumed by the Parent Guarantor or any of its Subsidiaries, or on the prop-   erty or on the outstanding shares or Indebtedness of a corporation or firm at the time it   becomes a Subsidiary or is merged into or consolidated with the Parent Guarantor or   any of its Subsidiaries, or on properties of a corporation or firm acquired by the Parent   Guarantor or any of its Subsidiaries as an entirety or substantially as an entirety; pro-   vided that the Security Interests may not extend to any other property of the Parent   Guarantor or such Subsidiary other than proceeds and products of such property,   shares or Indebtedness and accessions thereto;    (3) Security Interests arising from conditional sales agreements or title re-   tention agreements with respect to property acquired by the Parent Guarantor or any of   its Subsidiaries;    (4) Security Interests securing Indebtedness of a Subsidiary of the Parent   Guarantor owing to the Parent Guarantor or to another of the Parent Guarantor’s Sub-   sidiaries;      





 






-58-      (5) Security Interests (a) to secure obligations under Credit Facilities or   (b) in accounts receivable and related assets of the types specified in the definition of   “Qualified Receivables Transaction” incurred in connection with a Qualified Receiva-   bles Transaction, in an aggregate principal amount under clauses (a) and (b) combined   not to exceed the greater of (x) $2,000.0 million and (y) the maximum amount that   would not cause the Senior Secured Leverage Ratio to exceed 3.00 to 1.00 after giving   pro forma effect to the incurrence of the obligations to be secured by such Security In-   terests and the application of the proceeds therefrom;    (6) Security Interests existing on the Issue Date and extensions, renewals   and replacements of any such Security Interests so long as such Security Interests are   not extended to any other property of the Parent Guarantor or any of its Subsidiaries;    (7) any Security Interest arising by reason of deposits with, or the giving of   any form of security to, any governmental agency or any body created or approved by   law or governmental regulations, which is required by law or governmental regulation   as a condition to the transaction of any business, or the exercise of any privilege, fran-   chise or license;    (8)  carriers’, warehousemen’s, mechanics’ and other statutory liens arising   in the ordinary course of business (including construction of facilities) in respect of   obligations that are not due or that are being contested in good faith;    (9) Security Interests for taxes, assessments or governmental charges not   yet delinquent or for taxes, assessments or governmental charges that are being con-   tested in good faith;    (10) Security Interests (including judgment liens) arising in connection with   legal proceedings so long as such proceedings are being contested in good faith and, in   the case of judgment liens, execution thereon is stayed or not giving rise to an Event of   Default;    (11) landlords’ liens on fixtures on premises leased in the ordinary course of   business;    (12) Security Interests to secure the performance of statutory obligations, in-   surance, surety or appeal bonds, performance bonds, or other obligations of a like na-   ture incurred in the ordinary course of business (including Security Interests to secure   letters of credit issued to assure payment of such obligations);    (13) Security Interests on assets of the Parent Guarantor or any of its Sub-   sidiaries securing Indebtedness consisting of Hedging Obligations or Treasury Man-   agement Arrangements;      





 






-59-      (14) survey exceptions, easements or reservations of, or rights of others for,   licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other   similar purposes, or zoning or other restrictions as to the use of real property that were   not incurred in connection with Indebtedness and that do not in the aggregate material-   ly impair the use of said properties in the operation of the business of the Parent Guar-   antor and its Subsidiaries;    (15) Security Interests in favor of customs or revenue authorities arising as a   matter of law to secure payment of customs duties in connection with the importation   of goods incurred in the ordinary course of business;   (16) Security Interests on insurance policies and proceeds thereof, or other   deposits, to secure insurance premium financings;    (17) filing of Uniform Commercial Code financing statements as a precau-   tionary measure in connection with operating leases;    (18) bankers’ liens and rights of setoff;    (19) Security Interests in cash, cash equivalents or other property arising in   connection with the defeasance, discharge or redemption of Indebtedness;    (20) Security Interests on specific items of inventory or other goods (and the   proceeds thereof) of the Parent Guarantor or any of its Subsidiaries securing such Per-   son’s obligations in respect of bankers’ acceptances or trade-related letters of credit is-   sued or created in the ordinary course of business for the account of such Person to fa-   cilitate the purchase, shipment or storage of such inventory or other goods;    (21) grants of intellectual property licenses (including software and other   technology licenses) in the ordinary course of business;    (22) Security Interests incurred or pledges or deposits made in the ordinary   course of business in connection with workers’ compensation, unemployment insur-   ance and other types of social security and employee health and disability benefits (in-   cluding pledges or deposits securing liability to insurance carriers under insurance or   self-insurance arrangements);    (23) deposits made in the ordinary course of business to secure liability to   insurance carriers;    (24) Security Interests to secure partial, progress, advance or other payments   or any Indebtedness incurred for the purpose of financing all or any part of the pur-   chase price or the cost of construction, development, or substantial repair, alteration or     





 






-60-      improvement of the property subject to such Security Interests if the commitment for   the financing is obtained not later than 180 days after the later of the completion of or   the placing into operation (exclusive of test and start-up periods) of such property;   (25) options, put and call arrangements, rights of first refusal and similar   rights relating to investments in joint ventures, partnerships and the like; or    (26) other Security Interests securing Indebtedness, in an aggregate principal   amount for the Parent Guarantor and its Subsidiaries, together with the amount of At-   tributable Indebtedness incurred in connection with Sale and Leaseback Transactions,   not exceeding at the time such Security Interest is created or assumed the greater of (x)   $200.0 million and (y) 4.0% of Consolidated Total Assets.   Additionally, such permitted Secured Debt includes (with certain limitations)   any extension, renewal or refunding, in whole or in part, of any Secured Debt permitted at the   time of the original incurrence thereof.   Any Security Interest created for the benefit of the Holders of the Notes pursu-   ant to this Section 4.11 shall provide by its terms that such Security Interest shall be uncondi-   tionally and automatically released and discharged upon the release and discharge of the Ini-   tial Security Interest.   For purposes of determining compliance with this Section 4.11, a Security In-   terest securing an item of Secured Debt need not be permitted solely by one category of Per-   mitted Security Interest but may be permitted in part under any combination thereof, and if a   Permitted Security Interest meets the criteria or more than one of the exceptions described in   clauses (1) through (26) of this Section 4.11, the Parent Guarantor may, in its sole discretion,   classify the Permitted Security Interest in any manner that complies with this Section 4.11.   SECTION 4.12. [Reserved].   SECTION 4.13. [Reserved].   SECTION 4.14. [Reserved].   SECTION 4.15. Limitation on Sale and Leaseback Transactions.   The Parent Guarantor will not, and will not permit any of its Subsidiaries to,   engage in any Sale and Leaseback Transaction unless:   (1) the Parent Guarantor or such Subsidiary would be entitled to incur Se-   cured Debt pursuant to the covenant described in Section 4.11 equal in amount to the   net proceeds of the property sold or transferred or to be sold or to be transferred pur-   suant to such Sale and Leaseback Transaction and secured by a Security Interest on     





 






-61-      the property to be leased, without equally and ratably securing the debt securities out-   standing under this Indenture as provided under Section 4.11; or    (2) the Parent Guarantor or such Subsidiary shall apply, within 180 days   after the effective date of such sale or transfer, an amount equal to such net proceeds   to (i) the acquisition, construction, development or improvement of properties, facili-   ties or equipment that are, or upon such acquisition, construction, development or im-   provement will be, a Principal Facility or Facilities or a part thereof or (ii) the repur-   chase or redemption of Notes or to the repayment or redemption of Indebtedness of   the Parent Guarantor or of any of its Subsidiaries, or in part to such acquisition, con-   struction, development or improvement and in part to such redemption and/or repay-   ment. In lieu of applying an amount equal to such net proceeds to such repurchase or   redemption, the Parent Guarantor or any of its Subsidiaries may, within 180 days after   such sale or transfer, deliver to the Trustee or any other applicable trustee or compara-   ble Person, Notes or Indebtedness for cancellation and thereby reduce the amount to   be applied to the repurchase or redemption of such Notes or Indebtedness by an   amount equivalent to the aggregate principal amount of Notes or Indebtedness.   SECTION 4.16. Reports to Holders.   (a) Whether or not required by the rules and regulations of the Commis-   sion, so long as any Notes are outstanding hereunder, the Issuer shall furnish to the Trustee   and Holders the following:   (1) all quarterly and annual financial information required to be filed by the   Parent Guarantor with the Commission on Forms 10-Q and 10-K, and, with respect to   the annual information only, a report thereon by the Parent Guarantor’s certified inde-   pendent accountants; and   (2) all current reports required to be filed by the Parent Guarantor with the   Commission on Form 8-K (during any period in which the Parent Guarantor is not re-   quired to file reports with the Commission, such current reports need only be prepared   or delivered if the Parent Guarantor determines in good faith that the information to be   reported is material to the Holders of the Notes or the business, operations, assets, lia-   bilities or financial position of the Parent Guarantor and its Subsidiaries, taken as a   whole),   in each case, within the time periods specified in the Commission’s rules and regulations, in-   cluding any extension as would be permitted by Rule 12b-25 under the Exchange Act (and,   during any period in which the Parent Guarantor is not required to file reports with the Com-   mission, within the time periods specified in the Commission’s rules and regulations applica-   ble to a “non-accelerated filer”).     





 






-62-      (b) In addition, whether or not required by the rules and regulations of the   Commission, the Parent Guarantor will make all such information publicly available (includ-   ing via a non-password protected website) within the time periods specified in the Commis-   sion’s rules and regulations, including any extension as would be permitted by Rule 12b-25   under the Exchange Act (unless the Commission will not accept such a filing), and make such   information available to Holders of the Notes upon request. In addition, to the extent not satis-   fied by the foregoing, the Parent Guarantor shall, for so long as any Notes remain outstanding,   furnish to the Holders of such Notes 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.     (c) Whether the Parent Guarantor files such reports with the Commission   or posts its reports on its website, the public filing of such reports with the SEC or the public   posting of such reports shall satisfy any requirement hereunder to deliver such reports to the   Trustee and the Holders. The Parent Guarantor will at all times comply with the provisions of   TIA §314(a). The terms of this Indenture shall not impose any duty on the Parent Guarantor   under the Sarbanes-Oxley Act of 2002 and the related Commission rules that would not oth-   erwise be applicable to it.   (d) Delivery of such reports and information to the Trustee shall be for in-   formational purposes only, and the Trustee’s receipt of them shall not constitute constructive   notice of any information contained therein or determinable from information contained there-   in, including the Issuer’s compliance with any of its covenants hereunder (as to which the   Trustee is entitled to rely exclusively on Officer’s Certificates delivered pursuant to this In-   denture, including Officer’s Certificates delivered pursuant to Section 4.06(a)).   SECTION 4.17. Additional Note Guarantees.   If, on or after the Issue Date:   (1) the Issuer or any of its Subsidiaries acquires or creates another Domes-   tic Subsidiary (other than a Receivables Entity) that incurs any Indebtedness under   Credit Facilities (other than the Senior Secured Credit Facilities) or any syndicated   loan or capital markets debt securities or guarantees any such Indebtedness of the Par-   ent Guarantor or any of its Domestic Subsidiaries; or   (2) any Domestic Subsidiary (other than a Receivables Entity) of the Issuer   incurs Indebtedness under Credit Facilities (other than the Senior Secured Credit Fa-   cilities) or any syndicated loan or capital markets debt securities or guarantees any   such Indebtedness of the Issuer or any of its Domestic Subsidiaries and that Domestic   Subsidiary was not a Guarantor immediately prior to such incurrence or guarantee (an   “Additional Obligor”),     





 






-63-      then that newly acquired or created Domestic Subsidiary or Additional Obligor, as the case   may be, shall become a Guarantor and execute a supplemental indenture substantially in the   form of Exhibit J to this Indenture within 30 Business Days of the date on which it was ac-   quired or created or became an Additional Obligor.    In addition, the Issuer shall have delivered to the Trustee an Officer’s Certifi-   cate and an Opinion of Counsel, each stating that such supplemental Indenture complies with   the applicable provisions of this Indenture, that all conditions precedent in this Indenture re-   lating to the entry into such supplemental indenture have been satisfied, and such Opinion of   Counsel shall additionally state that such supplemental indenture is enforceable against the   new Guarantor, subject to customary qualifications.   SECTION 4.18. Termination of Covenants.   (a) If on any date following the Issue Date (i) the Notes have Investment   Grade Ratings from both Rating Agencies, and (ii) no Default has occurred and is continuing   under this Indenture (the occurrence of the events described in the foregoing clauses (i) and   (ii) being collectively referred to as a “Covenant Termination Event”), the Parent Guarantor   and its Subsidiaries will not be subject to Sections 4.09, 4.10, 4.15(2) and 4.17 hereof (collec-   tively, the “Terminated Covenants”).     (b) In the event that a Covenant Termination Event occurs, the Parent   Guarantor and its Subsidiaries will no longer be subject to the Terminated Covenants, regard-   less of whether and on any subsequent date one or both Rating Agencies withdraw their In-   vestment Grade Rating or downgrade the rating assigned to the Notes below an Investment   Grade Rating.    (c) The Issuer, in an Officer’s Certificate, shall provide the Trustee notice   of any Covenant Termination Event or Reversion Date.  The Trustee will have no obligation   to (i) independently determine or verify if such events have occurred, (ii) make any determi-   nation regarding the impact of actions taken during the Suspension Period on the Issuer’s fu-   ture compliance with their covenants or (iii) notify the Holders of a Covenant Termination   Event or Reversion Date.  The Trustee may deliver a copy of any such Officer’s Certificate to   the Holders upon request.   ARTICLE FIVE      SUCCESSOR CORPORATION   SECTION 5.01. Merger, Consolidation and Sale of Assets.   (a) (i) The Parent Guarantor will not consolidate or merge with or into any   other Person or Transfer all or substantially all of the properties or assets of the Parent Guar-    





 






-64-      antor and its Subsidiaries, taken as a whole and (ii) the Parent Guarantor will not permit any   of its Subsidiaries to, in a single transaction or a series of related transactions, Transfer all or   substantially all of the properties or assets of the Parent Guarantor and its Subsidiaries, taken   as a whole, in each case, to, another Person unless:   (1) the Parent Guarantor shall be the continuing corporation, or the succes-   sor shall be a corporation, limited liability company, partnership or trust organized and   existing under the laws of the United States or a state thereof and the successor Person   expressly assumes by a supplemental indenture or amendment of the relevant docu-   ments the Parent Guarantor’s obligations under the Notes, this Indenture and the Reg-   istration Rights Agreement; and   (2) after giving effect to the transaction, no Event of Default, and no event   which, after notice or lapse of time or both, would become an Event of Default, shall   have occurred or be continuing.   The Issuer shall deliver, or cause to be delivered, to the Trustee an Officer’s   Certificate and an Opinion of Counsel, each to the effect that such consolidation, merger, sale,   conveyance, assignment, transfer, lease or other disposition complies with the requirements of   this Indenture, and an Opinion of Counsel stating that the Notes, this Indenture and Note   Guarantees, as applicable, constitute valid and binding obligations of the Issuer or applicable   Guarantor or other surviving entity, subject to customary exceptions.   This Section 5.01 will not apply to any Transfer of assets between or among   the Parent Guarantor and any one or more of its Subsidiaries or between or among any one or   more of the Parent Guarantor’s Subsidiaries. Clause (2) of the first paragraph of this Section   5.01 will not apply to (1) any merger or consolidation of the Parent Guarantor with or into one   of its Subsidiaries for any purpose or (2) any merger or consolidation of the Parent Guarantor   or any of its Subsidiaries solely for the purpose of reincorporating the Parent Guarantor or   such Subsidiary in another jurisdiction.   SECTION 5.02. Successor Person Substituted.   Upon any consolidation, combination or merger of the Parent Guarantor, or   any Transfer of all or substantially all of the assets of the Parent Guarantor and its Subsidiar-   ies, taken as a whole, in accordance with the foregoing provisions of Section 5.01, in which   the Issuer is not the continuing obligor under the Notes, the surviving entity formed by such   consolidation or into which the Parent Guarantor is merged or to which such Transfer of all or   substantially all of the assets of the Parent Guarantor and its Subsidiaries, taken as a whole, is   made, will succeed to, and be substituted for, and may exercise every right and power of the   Issuer under this Indenture and the Notes with the same effect as if such surviving entity had   been named therein as Issuer and, the Issuer and all of the Guarantors will be released from   the obligation to pay the principal of and interest on such Notes or in respect of its related     





 






-65-      Note Guarantee, as the case may be, and all of the Issuer’s or such Guarantor’s other obliga-   tions and covenants under such Notes, this Indenture and its related Note Guarantee, if appli-   cable.    ARTICLE SIX   DEFAULTS AND REMEDIES   SECTION 6.01. Events of Default.   Each of the following constitutes an “Event of Default” with respect to the   Notes:   (1) default for 30 consecutive days in the payment when due of interest   with respect to the Notes;    (2) default in payment when due of principal or premium, if any, on the   Notes at maturity, upon redemption or otherwise;   (3) failure by the Issuer for 60 consecutive days after receipt of notice from   the Trustee or Holders of at least 25% in aggregate principal amount of the Notes then   outstanding under this Indenture (with a copy to the Trustee) to comply with the pro-   visions under Section 4.08;   (4) failure by the Parent Guarantor or any Subsidiary of the Parent Guaran-   tor for 60 consecutive days (120 days with respect to Section 4.16) after receipt of no-   tice from the Trustee or the Holders of at least 25% in aggregate principal amount of   the Notes then outstanding under this Indenture (with a copy to the Trustee) to comply   with any covenant or agreement contained in this Indenture (other than the covenants   and agreements specified in clauses (1) through (3) of this Section 6.01);   (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 of the   Parent Guarantor or any of its Subsidiaries (other than Indebtedness owed to the Par-   ent Guarantor or any of its Subsidiaries), whether such Indebtedness now exists or is   created after the Issue Date, which default (a) is caused by a failure to pay when due at   final stated maturity (giving effect to any grace period related thereto) principal of   such Indebtedness (a “Payment Default”) or (b) results in the acceleration of such In-   debtedness prior to its stated maturity, and, in each case, the principal amount of any   such Indebtedness, together with the principal amount of any such Indebtedness under   which there has been a Payment Default or the maturity of which has been so acceler-   ated, aggregates $100.0 million or more; and, in each case, the Issuer has received no-   tice specifying the default from the Trustee or Holders of at least 25% in aggregate     





 






-66-      principal amount of Notes then outstanding (with a copy to the Trustee) and does not   cure the default within 30 days;   (6) failure by the Parent Guarantor or any of its Subsidiaries to pay final   and non-appealable judgments (net of any amounts covered by insurance and as to   which such insurer has not denied responsibility or coverage in writing) aggregating   $100.0 million or more, which judgments are not paid, discharged, bonded, stayed or   waived within 60 days after such judgment becomes final, and in the event such judg-   ment is covered in full by insurance, an enforcement proceeding has been commenced   by any creditor upon such judgment or decree which is not promptly stayed;   (7) (A) a court having jurisdiction over the Parent Guarantor or any Sub-   sidiary enters (x) a decree or order for relief in respect of the Parent Guarantor or any   Subsidiary that is a Significant Subsidiary or group of Subsidiaries of the Parent Guar-   antor that, taken together, would constitute a Significant Subsidiary in an involuntary   case or proceeding under any Bankruptcy Law or (y) a decree or order adjudging the   Parent Guarantor or any Subsidiary that is a Significant Subsidiary or group of Subsid-   iaries of the Parent Guarantor that, taken together, would constitute a Significant Sub-   sidiary as bankrupt or insolvent, or approving as properly filed a petition seeking reor-   ganization, arrangement, adjustment or composition of or in respect of the Parent   Guarantor or any Subsidiary or group of Subsidiaries under any Bankruptcy Law, or   appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other   similar official of the Parent Guarantor or any such Subsidiary or group of Subsidiar-   ies or of any substantial part of its property, or ordering the winding up or liquidation   of its affairs, and the continuance of any such decree or order for relief or any such   other decree or order unstayed and in effect for a period of 60 consecutive days or (B)   the Parent Guarantor or any Subsidiary that is a Significant Subsidiary or group of   Subsidiaries of the Parent Guarantor that, taken together, would constitute a Signifi-   cant Subsidiary (i) commences a voluntary case under any Bankruptcy Law or con-   sents to the entry of an order for relief in an involuntary case under any Bankruptcy   Law, (ii) consents to the appointment of or taking possession by a receiver, liquidator,   assignee, custodian, trustee, sequestrator or similar official of the Parent Guarantor or   any such Subsidiary or group of Subsidiaries or for all or substantially all the property   and assets of the Parent Guarantor or any such Subsidiary or group of Subsidiaries,   (iii) effects any general assignment for the benefit of creditors or (iv) generally is not   paying its debts as they become due; and   (8) any Note Guarantee of any Guarantor that is a Significant Subsidiary   ceases to be in full force and effect in all material respects (other than in accordance   with the terms of such Note Guarantee and this Indenture) or is declared null and void   and unenforceable or found to be invalid or any Guarantor denies its liability under its     





 






-67-      Note Guarantee (other than by reason of release of a Guarantor from its Note Guaran-   tee in accordance with the terms of this Indenture and such Note Guarantee).   SECTION 6.02. Acceleration of Maturity; Rescission.   If any Event of Default occurs and is continuing under this Indenture, either   the Trustee or the Holders of at least 25% in aggregate principal amount of the Notes then   outstanding, may declare all Notes to be due and payable by notice in writing to the Issuer and   the Trustee, in the case of notice by Holders, specifying the respective Event of Default and   that it is a “notice of acceleration” and the same shall become immediately due and payable;   provided, however, that, notwithstanding the foregoing, if an Event of Default specified in   Section 6.01(7) occurs with respect to the Parent Guarantor, all outstanding Notes shall be-   come due and payable without further action or notice.   Notwithstanding the foregoing, if after such acceleration but before a judgment   or decree based on such acceleration is obtained by the Trustee, the Holders of a majority in   aggregate principal amount of outstanding Notes may rescind and annul such acceleration if:   (1) all Events of Default, other than nonpayment of principal, premium, if   any, or interest that has become due solely because of the acceleration, have been   cured or waived;   (2) to the extent the payment of such interest is lawful, interest on overdue   installments of interest and overdue principal, which has become due otherwise than   by such declaration of acceleration, has been paid;   (3)  the Issuer has paid the Trustee its reasonable compensation and reim-   bursed the Trustee for its expenses, disbursements, indemnities and advances; and    (4) in the event of the cure or waiver of an Event of Default of the type de-   scribed in Section 6.01(7), the Trustee shall have received an Officer’s Certificate and   an Opinion of Counsel that such Event of Default has been cured or waived.   No such rescission shall affect any subsequent Default or impair any right con-   sequent thereto.   SECTION 6.03. Other Remedies.   If an Event of Default occurs and is continuing, the Trustee may pursue any   available remedy by proceeding at law or in equity to collect the payment of principal of, or   premium, if any, and interest on the Notes or to enforce the performance of any provision of   the Notes or this Indenture and may take any necessary action requested by the Holders of a     





 






-68-      majority of the principal amount outstanding of the Notes to settle, compromise, adjust or   otherwise conclude any proceedings to which it is a party.   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 Noteholder 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 De-   fault.  No remedy is exclusive of any other remedy.  All available remedies are cumulative.    Any costs associated with actions taken by the Trustee under this Section 6.03 shall be reim-   bursed to the Trustee by the Issuer and the Guarantors.   SECTION 6.04. Waiver of Existing Defaults and Events of Default.   (a) Subject to Sections 2.10, 6.02, 6.08 and 8.02, the Holders of a majority   in principal amount of the Notes then outstanding shall have the right to waive past Defaults   and Events of Default under this Indenture except a continuing Default or Event of Default in   the payment of the principal of, or interest or premium, if any, on any Note as specified in   clauses (1) and (2) of Section 6.01 or in respect of a covenant or a provision which cannot be   modified or amended without the consent of all Holders as provided for in Section 8.02,   which shall require the consent of all of the Holders of the Notes then Outstanding.  The Issu-   er shall deliver to the Trustee an Officer’s Certificate stating that the requisite percentage of   Holders have consented to such waiver and attaching copies of such consents.  In case of any   such waiver, the Issuer, the Trustee and the Holders shall be restored to their former positions   and rights hereunder and under the Notes, respectively.  This clause (a) of this Section 6.04   shall be in lieu of TIA § 316(a)(1)(B), and TIA § 316(a)(1)(B) is hereby expressly excluded   from this Indenture and the Notes, as permitted by the TIA.   (b) Upon any such waiver, such Default or Event of Default, as applicable,   shall cease to exist, and, with respect to any waived Default, 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 Event of Default or impair any right   consequent thereto.   SECTION 6.05. Control by Majority.   Subject to Sections 2.10 and 7.01, the Holders of a majority in aggregate prin-   cipal amount of the outstanding Notes have the right to 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 the Trustee by this Indenture.  The Trustee, however, may   refuse to follow any direction that conflicts with law or this Indenture or that the Trustee de-   termines may be unduly prejudicial to the rights of another Holder not taking part in such di-   rection, and the Trustee shall have the right to decline to follow any such direction (it being   understood that the Trustee does not have an affirmative duty to ascertain whether or not any     





 






-69-      such directions are unduly prejudicial to such Holders) if the Trustee, being advised by coun-   sel, determines that the action so directed may not lawfully be taken or if the Trustee in good   faith shall, by a Responsible Officer, determine that the proceedings so directed may involve   it in personal liability; provided that the Trustee may take any other action deemed proper by   the Trustee which is not inconsistent with such direction.  In the event the Trustee takes any   action or follows any direction pursuant to this Indenture, the Trustee shall be entitled to in-   demnification reasonably satisfactory to it against any cost, liability or expense that might be   caused by taking such action or following such direction.  This Section 6.05 shall be in lieu of   TIA § 316(a)(1)(A), and TIA § 316(a)(1)(A) is hereby expressly excluded from this Indenture   and the Notes, as permitted by the TIA.    SECTION 6.06. Limitation on Suits.   A Holder may not pursue any remedy with respect to this Indenture or the   Notes unless:   (1) the Holder has given the Trustee written notice of a continuing Event of   Default;   (2) the Holders of at least 25% in principal amount of the Notes then out-   standing make a written request to the Trustee to pursue the remedy;   (3) such Holder or Holders offer the Trustee security or indemnity satisfac-   tory to the Trustee against any costs, liability or expense;   (4) the Trustee does not comply with the request within 60 days after re-   ceipt of the request and the offer of security or indemnity against any cost, liability or   expense that might be caused by complying with such request; and   (5) during such 60-day period, the Holders of a majority in aggregate prin-   cipal amount of the outstanding Notes do not give the Trustee a direction that is incon-   sistent with the request.   A Noteholder may not use any provision of this Indenture to disturb or preju-   dice the rights of another Noteholder or to obtain a preference or priority over another Note-   holder.   SECTION 6.07. No Personal Liability of Directors, Officers, Employees and   Stockholders.   No director, officer, employee, incorporator or stockholder of the Parent Guar-   antor or of any Subsidiary of the Parent Guarantor, as such, shall have any liability for any   obligations of the Issuer or the Guarantors under the Notes, this Indenture, the Note Guaran-    





 






-70-      tees or for any claim based on, in respect of, or by reason of, such obligations or their crea-   tion. Each Holder of Notes by accepting a Note waives and releases all such liability. The   waiver may not be effective to waive liabilities under the federal securities laws.   SECTION 6.08. Rights of Holders To Receive Payment.   Notwithstanding any other provision of this Indenture, the right of any Holder   of a Note to receive payment of the principal of or premium, if any, or interest, if any, on such   Note on or after the respective due dates expressed in such Note, or to bring suit for the en-   forcement of any such payment, on or after such respective due dates, is absolute and uncon-   ditional and shall not be impaired or affected without the consent of the Holder.   SECTION 6.09. Collection Suit by Trustee.   If an Event of Default occurs and is continuing, the Trustee may recover judg-   ment in its own name and as trustee of an express trust against the Issuer or any Guarantor (or   any other obligor on the Notes) for the whole amount of unpaid principal and accrued interest   remaining unpaid, together with interest on overdue principal and, to the extent that payment   of such interest is lawful, interest on overdue installments of interest, in each case at the rate   set forth in the Notes, and such further amounts 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 6.10. Trustee May File Proofs of Claim.   The Trustee may 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 any other amounts due the Trustee under Section 7.07) and the Note-   holders allowed in any judicial proceedings relative to the Issuer or any Guarantor (or any   other obligor upon the Notes), its creditors or its property and shall be entitled and empow-   ered to collect and receive any monies or other property payable or deliverable on any such   claims and to distribute the same after deduction of its charges and expenses to the extent that   any such charges and expenses are not paid out of the estate in any such proceedings and any   custodian in any such judicial proceeding is hereby authorized by each Noteholder 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 Noteholders, 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.   Nothing herein contained shall be deemed to authorize the Trustee to authorize   or consent to or accept or adopt on behalf of any Noteholder any plan or reorganization, ar-   rangement, adjustment or composition affecting the Notes or the rights of any Noteholder     





 






-71-      thereof, or to authorize the Trustee to vote in respect of the claim of any Noteholder in any   such proceedings.   SECTION 6.11. Priorities.   If the Trustee collects any money or property pursuant to this Article Six, and   after an Event of Default any money or other property distributable in respect of the Compa-   ny’s or Guarantors’ obligations under this Indenture, such money or property shall  be paid   out or distributed in the following order:   FIRST:  to the Trustee and any predecessor Trustee for amounts due under   Section 7.07;   SECOND:  to Noteholders for amounts due and unpaid on the Notes for prin-   cipal, premium, if any, and interest, ratably, without preference or priority of any kind,   according to the amounts due and payable on the Notes; and   THIRD:  to the Issuer or, to the extent the Trustee collects any amount from   any Guarantor, to such Guarantor.   The Trustee may fix a record date and payment date for any payment to Note-   holders pursuant to this Section 6.11.   SECTION 6.12. 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 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 reason-   able 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   6.12 does not apply to a suit by the Trustee, a suit by a Noteholder pursuant to Section 6.08 or   a suit by Noteholders of more than 10% in principal amount of the Notes then outstanding.     





 






-72-      ARTICLE SEVEN      TRUSTEE   SECTION 7.01. Duties of Trustee.   (a) If a Default or Event of Default actually known to a Responsible Of-   ficer of the Trustee has occurred and is continuing, the Trustee shall exercise such of the   rights and powers vested in it by this Indenture and use the same degree of care and skill in   their exercise as a prudent person under the circumstances would exercise or use under the   same circumstances in the conduct of his or her own affairs.   Except for an Event of Default pursuant to Section 6.01(1) or 6.01(2) (upon the   occurrence of which the Trustee if then acting as Paying Agent will be deemed to have   knowledge thereof), the Trustee shall not be deemed to have notice or be charged with   knowledge of any Default or Event of Default unless a Responsible Officer of the Trustee   has received written notice of any event which is in fact such a Default or Event of Default   by the Issuer or by the Holders of at least 25% of the aggregate principal amount of the   Notes by written notice of such event sent to the Trustee in accordance with Section 11.02 at   the Corporate Trust Office of the Trustee, and such notice references the Notes and this In-   denture.   (b) Except during the continuance of a Default or Event of Default of   which a Responsible Officer of the Trustee has actual knowledge:   (1) The Trustee need perform only those duties that are specifically set   forth in this Indenture and no others, and no implied covenants or obligations shall be   read into this Indenture against the Trustee.   (2) In the absence of bad faith on its part, the Trustee may conclusively re-   ly, as to the truth of the statements and the correctness of the opinions expressed there-   in, upon certificates or opinions furnished to the Trustee and conforming to the re-   quirements of this Indenture but, in the case of any such certificates or opinions which   by any provision hereof are specifically required to be furnished to the Trustee, the   Trustee shall be under a duty to examine the same to determine whether or not they   conform on their face to the requirements of this Indenture (but need not confirm or   investigate the accuracy of mathematical calculations or other facts stated therein).    Whenever in the administration of this Indenture the Trustee shall deem it desirable   that a matter be proved or established prior to taking, suffering or omitting any action   hereunder, the Trustee (unless other evidence be herein specifically prescribed) may   require and, in the absence of bad faith on its part, conclusively rely upon an Officer’s   Certificate, subject to the requirement in the preceding sentence, if applicable.     





 






-73-      (c) The Trustee may not be relieved from liability for its own negligent ac-   tion, its own negligent failure to act, or its own willful misconduct, except that:   (1) This paragraph does not limit the effect of clause (b) of this Sec-   tion 7.01.   (2) The Trustee shall 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 as-   certaining the pertinent facts.   (3) The Trustee shall 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 from a majori-   ty in aggregate principal amount of the Notes outstanding pursuant to the terms of this   Indenture.   (d) Whether or not therein expressly so provided, clauses (a), (b), (c) and   (e) of this Section 7.01 shall govern every provision of this Indenture that in any way relates   to the Trustee.    The Trustee shall 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 pursuant to this   Indenture, unless such Holders shall have offered to the Trustee security or indemnity satis-   factory to the Trustee against the costs, expenses and liabilities which might be incurred by it   in compliance with such request or direction (including, but in no way limited to, the fees and   disbursements of agents and attorneys).  The Trustee’s fees, expenses and indemnities (in-   cluding, but in no way limited to, the fees and disbursements of agents and attorneys) are in-   cluded in the amounts guaranteed by the Note Guarantees.   (e) The Trustee shall not be liable for interest on any money received by it   except as the Trustee may agree in writing with the Issuer or any Guarantor.  Money held in   trust by the Trustee need not be segregated from other funds except to the extent required by   the law.  The Trustee shall not be accountable for any diminution in the value of any invest-   ments deposited with the Trustee, or any losses incurred upon any authorized disposition   thereof.    (f) No provision of this Indenture shall require the Trustee to expend or   risk its own funds or otherwise incur any financial liability in the performance of any of its   rights, powers or duties. The Trustee shall not be required to give any bond or surety in re-   spect of the performance of its powers or duties hereunder.   SECTION 7.02. Rights of Trustee.   Subject to Section 7.01:     





 






-74-      (1) The Trustee may conclusively rely on any document (whether in its   original or facsimile form) reasonably believed by it to be genuine and to have been   signed or presented by the proper person.  The Trustee need not investigate any fact or   matter stated in the document.   (2) Before the Trustee acts or refrains from acting, it may require and shall   be entitled to receive an Officer’s Certificate or an Opinion of Counsel, or both, which   shall conform to the provisions of Section 11.05.  The Trustee shall be protected and   shall not be liable for any action it takes or omits to take in good faith in reliance on   such certificate or opinion.   (3) The Trustee may act through its attorneys and agents and shall not be   responsible for the misconduct or negligence of any attorney or agent appointed by it   with due care.   (4) The Trustee shall not be liable for any action it takes or omits to take in   good faith which it reasonably believes to be authorized or within its rights or powers;   provided that the Trustee’s conduct does not constitute negligence or willful miscon-   duct.   (5) The Trustee may consult with counsel of its selection, and the advice or   opinion of such counsel as to matters of law shall be full and complete authorization   and protection from liability in respect of any action taken, omitted or suffered by it   hereunder in good faith and in accordance with the advice or opinion of such counsel.   (6) The rights, privileges, protections, immunities and benefits given to the   Trustee, including, without limitation, its right to be compensated, reimbursed and in-   demnified, are extended to, and shall be enforceable by, the Trustee in each of its ca-   pacities hereunder (including but not limited to as Registrar, Paying Agent and Depos-   itary Custodian), and each agent, custodian and other person employed to act hereun-   der.   (7) The right of the Trustee to perform any discretionary act enumerated in   this Indenture shall not be construed as a duty, and the Trustee shall not be answerable   for other than its own negligence or willful misconduct in the performance of such act.   (8) The Trustee may from time to time request that the Issuer deliver an   Officer’s Certificate setting forth the names of individuals and/or titles of officers au-   thorized at such time to take specified actions pursuant to this Indenture, which Of-   ficer’s Certificate may be signed by any persons authorized to sign an Officer’s Certif-   icate, including any person specified as so authorized in any such certificate previous-   ly delivered and not superseded.     





 






-75-      (9) In no event shall the Trustee be responsible or liable for special, indi-   rect, punitive or consequential loss or damage of any kind whatsoever (including, but   not limited to, loss of profit) irrespective of whether the Trustee has been advised of   the likelihood of such loss or damage and regardless of the form of action.   (10) The Trustee will 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 in-   debtedness, or other paper or document, or inquire as to the performance by the Issuer   or the Guarantors of any of their covenants in this Indenture.   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 make loans to, accept deposits from, perform services for or other-   wise deal with either the Issuer or any Guarantor, or any Affiliates thereof, with the same   rights it would have if it were not Trustee.  However, in the event that the Trustee acquires   any conflicting interest as defined in the Trust Indenture Act, it must eliminate such conflict   within 90 days, apply to the Commission for permission to continue as Trustee or resign.  Any   Agent may do the same with like rights.  The Trustee shall also be subject to Sections 7.10   and 7.11.   SECTION 7.04. Trustee’s Disclaimer.   The Trustee shall not be responsible for and makes no representation as to the   validity or adequacy of this Indenture or the Notes or any Note Guarantee, it shall not be ac-   countable for the Issuer’s or any Guarantor’s use of the proceeds from the sale of Notes, it   will not be responsible for the use or application of any money received by any Paying Agent   (other than itself as Paying Agent) or any money paid to the Issuer or any Guarantor pursuant   to the terms of this Indenture and it shall not be responsible for any statement in the Notes, the   Note Guarantees or this Indenture other than its certificate of authentication.  The Trustee   shall not be responsible for any statement in the Offering Circular or any other document uti-   lized by the Issuer in connection with the sale of the Notes, shall not be responsible for com-   pliance with securities laws in connection with the issuance and sale of the Notes, and shall   not be responsible for any rating on the Notes or any action or omission of any Rating Agen-   cy.   SECTION 7.05. Notice of Defaults.   If a Default or Event of Default occurs and is continuing (which shall not be   cured or waived) and if it is known to the Trustee (pursuant to Section 7.01(a) hereof), the   Trustee shall give to each Noteholder a notice of the Default or Event of Default within 90   days after it occurs in the manner and to the extent provided in the TIA and otherwise as pro-    





 






-76-      vided in this Indenture.  Except in the case of a Default or Event of Default relating to the   payment of the principal of or interest on any Note (including payments pursuant to a redemp-   tion or repurchase of the Notes pursuant to the provisions of this Indenture), the Trustee may   withhold the notice if and so long as the board of directors, the executive committee or a trust   committee of directors or Responsible Officers of the Trustee in good faith determines that   withholding the notice is in the interests of Holders.   SECTION 7.06. Reports by Trustee to Holders.   If required by TIA § 313(a), within 60 days after March 1 of any year, com-   mencing on the March 1 following the date of this Indenture, the Trustee shall mail to each   Noteholder a brief report dated as of such date that complies with TIA § 313(a).  The Trustee   also shall comply with TIA § 313(b)(2).  The Trustee shall also transmit by mail all reports as   required by TIA § 313(c) and TIA § 313(d).   Reports pursuant to this Section 7.06 shall be transmitted by mail:   (1) to all Holders of Notes, as the names and addresses of such Holders ap-   pear on the Registrar’s books; and   (2) to such Holders of Notes as have, within the two years preceding such   transmission, filed their names and addresses with the Trustee for that purpose.   A copy of each report at the time of its mailing to Holders shall be filed with   the Commission and each stock exchange on which the Notes are listed.  The Issuer shall   promptly notify the Trustee, in writing, when the Notes are listed on any stock exchange or   delisted therefrom.   SECTION 7.07. Compensation and Indemnity.   The Issuer and the Guarantors shall pay to the Trustee from time to time com-   pensation as agreed upon for its services hereunder (which compensation shall not be limited   by any provision of law in regard to the compensation of a trustee of an express trust).  The   Issuer and the Guarantors shall reimburse the Trustee upon request for all reasonable dis-   bursements, expenses and advances incurred or made by it in connection with the Trustee’s   duties under this Indenture, including the reasonable compensation, disbursements and ex-   penses of the Trustee’s agents and external counsel.   The Issuer and the Guarantors, jointly and severally, shall indemnify each of   the Trustee and its agents, employees, stockholders, directors and officers and any predeces-   sor Trustee for, and hold each of them harmless against, any and all loss, damage, claim, lia-   bility or expense, including without limitation taxes (other than taxes based on the income of   the Trustee) and reasonable attorneys’ fees and expenses (collectively, “Losses”) incurred by     





 






-77-      each of them in connection with the acceptance or administration of this Indenture or the per-   formance of its duties under this Indenture or the exercise of its rights and powers under the   Notes and the Guarantees, including the costs and expenses of enforcing this Indenture (in-   cluding this Section 7.07), the Notes and the Guarantees or otherwise arising under this Inden-   ture and including the reasonable costs and expenses of defending itself against any claim   (whether asserted by any Holder, the Issuer, any Guarantor or otherwise) or liability in con-   nection with the exercise or performance of any of its rights, powers or duties hereunder (in-   cluding, without limitation, settlement costs).  The Trustee shall notify the Issuer and the   Guarantors in writing promptly of any third party claim of which a Responsible Officer of the   Trustee has actual knowledge asserted against the Trustee for which it may seek indemnity   (each, a “Third Party Claim”); provided that the failure by the Trustee to so notify the Issuer   and the Guarantors shall not relieve the Issuer and Guarantors of their obligations hereunder   except to the extent the Issuer and the Guarantors are actually prejudiced thereby.  Neither the   Issuer nor any Guarantor need pay for any settlement or provide any indemnification for any   other Losses associated therewith to the extent such settlement is made in connection with any   Third Party Claim without its consent, which consent may be withheld in its sole discretion.    The Trustee shall have the right to its own counsel and the Issuer shall pay the reasonable fees   and expenses of such counsel in connection with any Third Party Claim to the extent the Trus-   tee reasonably determines that a conflict of interest exists or is required in connection with the   performance of its duties under this Indenture.     Notwithstanding the foregoing, the Issuer and the Guarantors need not reim-   burse the Trustee for any expense or indemnify it against any loss or liability to have been in-   curred by the Trustee through its own negligence, bad faith or willful misconduct.   To secure the payment obligations of the Issuer and the Guarantors in this Sec-   tion 7.07, the Trustee shall have a lien prior to the Notes on all money or property held or col-   lected by the Trustee except for such money or property held in trust to pay principal of and   interest on particular Notes.  Such lien shall survive the satisfaction and discharge of this In-   denture.   The obligations of the Issuer and the Guarantors under this Section 7.07 to   compensate and indemnify the Trustee and each predecessor Trustee and to pay or reimburse   the Trustee and each predecessor Trustee for expenses, disbursements and advances shall be   joint and several liabilities of each Issuer and each of the Guarantors and shall survive the res-   ignation or removal of the Trustee and the satisfaction, discharge or other termination of this   Indenture, including any termination or rejection hereof under any Bankruptcy Law.   When the Trustee incurs expenses or renders services after an Event of Default   specified in Section 6.01(7) occurs, the expenses and the compensation for the services are   intended to constitute expenses of administration under any applicable Bankruptcy Law.     





 






-78-      For purposes of this Section 7.07, the term “Trustee” shall include any trustee   appointed pursuant to this Article Seven, provided, however, that the negligence, willful mis-   conduct or bad faith of any Trustee hereunder shall not affect the rights of any other Trustee   hereunder.  The provisions of this Section 7.07 shall apply to Trustee in its capacity as Paying   Agent, Registrar and any other Agent under this Indenture.   SECTION 7.08. Replacement of Trustee.   The Trustee may resign at any time by so notifying the Issuer and the Guaran-   tors in writing.  The Holders of a majority in principal amount of the outstanding Notes may   remove the Trustee by notifying the Issuer and the removed Trustee in writing and may ap-   point a successor Trustee with the Issuer’s written consent, which consent shall not be unrea-   sonably withheld.  The Issuer may remove the Trustee at its election if:   (1) the Trustee fails to comply with Section 7.10;   (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 receiver or other public officer takes charge of the Trustee or its prop-   erty; or   (4) the Trustee otherwise becomes incapable of acting.   If the Trustee resigns or is removed or if a vacancy exists in the office of Trus-   tee for any reason, the Issuer shall promptly appoint a successor Trustee.   If a successor Trustee does not take office within 60 days after the retiring   Trustee resigns or is removed, the retiring Trustee, the Issuer or the Holders of a majority in   principal amount of the outstanding Notes may petition at the expense of the Issuer any court   of competent jurisdiction for the appointment of a successor Trustee.   If the Trustee fails to comply with Section 7.10, Noteholders holding at least   10% in principal amount of the Notes may petition any court of competent jurisdiction for the   removal of the Trustee and the appointment of a successor Trustee.   A successor Trustee shall deliver a written acceptance of its appointment to the   retiring Trustee and to the Issuer.  Immediately following such delivery, the retiring Trustee   shall, subject to its rights under Section 7.07, transfer all property held by it as Trustee to the   successor Trustee, the resignation or removal of the retiring Trustee shall become effective,   and the successor Trustee shall have all the rights, powers and duties of the Trustee under this   Indenture.  A successor Trustee shall mail notice of its succession to each Noteholder.  Not-    





 






-79-      withstanding replacement of the Trustee pursuant to this Section 7.08, the Issuer’s obligations   under Section 7.07 shall continue for the benefit of the retiring Trustee.   SECTION 7.09. Successor Trustee by Consolidation, Merger, etc.   If the Trustee consolidates with, merges or converts into, or transfers all or   substantially all of its corporate trust assets to, another corporation, subject to Section 7.10,   the successor corporation without any further act shall be the successor Trustee; provided that   such entity shall be otherwise qualified and eligible under this Article Seven.   SECTION 7.10. Eligibility; Disqualification.   This Indenture shall always have a Trustee who satisfies the requirements of   TIA § 310(a)(1), (2) and (5) in every respect.  The Trustee shall have a combined capital and   surplus of at least $100,000,000 as set forth in the most recent applicable published annual   report of condition.  The Trustee shall comply with TIA § 310(b); provided, however, that   there shall be excluded from the operation of TIA § 310(b)(1) any indenture or indentures un-   der which other securities or certificates of interest or participation in other securities of the   Issuer are outstanding if the requirements for such exclusion set forth in TIA § 310(b)(1) are   met.   SECTION 7.11. Preferential Collection of Claims Against Issuer.   The Trustee is subject to and shall comply with TIA § 311(a), excluding any   creditor relationship listed in TIA § 311(b).  A Trustee who has resigned or been removed   shall be subject to TIA § 311(a) to the extent indicated therein.   SECTION 7.12. Paying Agents.   The Issuer shall cause each Paying Agent other than the Trustee to execute and   deliver to it and the Trustee an instrument in which such Paying Agent shall agree with the   Trustee, subject to the provisions of this Section 7.12:   (A) that it will hold all sums held by it as agent for the payment of principal   of, or premium, if any, or interest on, the Notes (whether such sums have been paid to   it by the Issuer or by any obligor on the Notes) in trust for the benefit of Holders of the   Notes or the Trustee;   (B) that it will at any time during the continuance of any Event of Default,   upon written request from the Trustee, deliver to the Trustee all sums so held in trust   by it together with a full accounting thereof; and   (C) that it will give the Trustee written notice within three Business Days   of any failure of the Issuer (or by any obligor on the Notes) in the payment of any in-    





 






-80-      stallment of the principal of, premium, if any, or interest on, the Notes when the same   shall be due and payable.   ARTICLE EIGHT      AMENDMENT, SUPPLEMENT AND WAIVER   SECTION 8.01. Without Consent of Noteholders.   Notwithstanding Section 8.02, the Issuer, the Guarantors (except that any exist-   ing Guarantors need not execute a supplemental indenture entered into pursuant to clause (5)   below) and the Trustee may amend or supplement this Indenture, the Notes or the Note Guar-   antees without the consent of any Holder for any of the following purposes:   (1) to cure any ambiguity, omission, defect or inconsistency;   (2) to provide for uncertificated Notes in addition to or in place of Physical   Notes;   (3) to provide for the assumption of the Issuer’s or any Guarantor’s obliga-   tions to the Holders of such Notes in the case of a merger or consolidation or sale of   all or substantially all of the Issuer’s or such Guarantor’s assets;   (4) to secure the Notes;   (5) to add any Guarantor or release any Guarantor from its Note Guarantee   if such release is in accordance with the terms of this Indenture;   (6) to conform the text of this Indenture, the Notes, or the Note Guarantees   to any provision of the “Description of Notes” set forth in the Offering Circular to the   extent that such provision in the “Description of Notes” set forth in the Offering Cir-   cular was intended to be a verbatim recitation of a provision of this Indenture, the   Notes, or the Note Guarantees, which intent may be evidenced by an Officer’s Certifi-   cate to that effect;    (7) to provide for the issuance of Additional Notes in accordance with the   limitations set forth in this Indenture as of the date hereof;   (8) to make any change that would provide any additional rights or benefits   to the Holders of such Notes or that does not adversely affect the rights under this In-   denture of any Holder in any material respect; or   (9) to comply with requirements of the Commission in order to effect or   maintain the qualification of this Indenture under the TIA.     





 






-81-      SECTION 8.02. With Consent of Noteholders.   (a) Except to the extent provided in Section 8.01 and clause (b) of this Sec-   tion 8.02, this Indenture, the Notes or any Note Guarantee may be amended with the consent   of the Holders of at least a majority in aggregate principal amount of the then outstanding   Notes voting as a single class (including, without limitation, consents obtained in connection   with a purchase of, tender offer or exchange offer for Notes), and any existing Default or   compliance with any provision of this Indenture, the Notes or any Note Guarantee may be   waived with the consent of the Holders of a majority in aggregate principal amount of the   then outstanding Notes voting as a single class (including, without limitation, consents ob-   tained in connection with a purchase of, tender offer or exchange offer for Notes).   (b) Notwithstanding clause (a) of this Section 8.02, without the consent of   each Holder of Notes issued under this Indenture affected thereby, an amendment or waiver   may not (with respect to any Note held by a non-consenting Holder):   (1) reduce the principal amount of Notes issued under this Indenture whose   Holders must consent to an amendment, supplement or waiver;   (2) reduce the principal amount of or change the Maturity Date of any   Notes, or alter the provisions with respect to the redemption of any such Notes other   than, except as set forth in clause (7) of this Section 8.02, the provisions of Section   4.08 of this Indenture;   (3) reduce the rate of or change the time for payment of interest on any   such Notes;   (4) waive a Default or Event of Default in the payment of principal of or   premium, if any, or interest on any such Notes (except a rescission of acceleration of   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 accel-   eration);   (5) make any such Note payable in currency other than that stated in such   Note;   (6) make any change to the provisions of this Indenture relating to waiver   of past Defaults or the rights of Holders of the Notes issued hereunder to receive pay-   ments of principal of or interest on the Notes;   (7) after the Issuer’s obligation to make an offer to purchase Notes arises   hereunder, amend, change or modify in any material respect the obligations of the Is-   suer to make and consummate a Change of Control Offer with respect to a Change of     





 






-82-      Control that has occurred, including, without limitation, in each case, by amending,   changing or modifying any of the definitions relating thereto;   (8) release the Issuer or any Guarantor that is a Significant Subsidiary from   any of its obligations under its Note Guarantee or this Indenture otherwise than in ac-   cordance with the terms of this Indenture; or   (9) modify or change any provision of this Indenture affecting the ranking   of the Notes or Note Guarantees in a manner adverse to the Holders of Notes.   (c) It shall not be necessary for the consent of the Holders under this Sec-   tion 8.02 to approve the particular form of any proposed amendment or waiver, but it shall be   sufficient if such consent approves the substance thereof.      SECTION 8.03. Compliance with Trust Indenture Act.   Every amendment or supplement to this Indenture, the Notes or the Note Guar-   antees shall comply with the TIA as then in effect.   SECTION 8.04. Revocation and Effect of Consents.   (a) After an amendment, supplement, waiver or other action becomes ef-   fective, a consent to it by a Holder of a Note is a continuing consent conclusive and binding   upon such Holder and every subsequent Holder of the same Note or portion thereof, and of   any Note issued upon the transfer thereof or in exchange therefor or in place thereof, even if   notation of the consent is not made on any such Note.   (b) The Issuer may, but shall not be obligated to, fix a record date for the   purpose of determining the Holders entitled to consent to any amendment, supplement or   waiver.  If a record date is fixed, then, notwithstanding the preceding paragraph, those Per-   sons who were Noteholders at such record date (or their duly designated proxies), and only   such Persons, shall be entitled to consent to such amendment, supplement, or waiver or to re-   voke any consent previously given, whether or not such Persons continue to be Noteholders   after such record date.  No such consent shall be valid or effective for more than 90 days after   such record date unless the consent of the requisite number of Noteholders has been obtained.   (c) After an amendment, supplement, waiver or other action under Section   8.01 or Section 8.02 becomes effective, it shall bind every Noteholder, unless it makes a   change described in any of clauses (1) through (9) of Section 8.02(b).  In that case the   amendment, supplement, waiver or other action shall bind each Noteholder who has consent-   ed to it and every subsequent Noteholder or portion of a Note that evidences the same debt as   the consenting Holder’s Note.     





 






-83-      SECTION 8.05. Notation on or Exchange of Notes.   If an amendment, supplement, or waiver changes the terms of a Note, the Trus-   tee (in accordance with the specific written direction of the Issuer) shall request the Holder of   the Note (in accordance with the specific written direction of the Issuer) to deliver it to the   Trustee.  In such case, the Trustee shall place an appropriate notation on the Note about the   changed terms and return it to the Noteholder.  Alternatively, if the Issuer or the Trustee so   determines, the Issuer in exchange for the Note shall issue, the Guarantors shall endorse and,   upon receipt of a written order of the Issuer in the form of an Officer’s Certificate in accord-   ance with Section 2.01, the Trustee shall authenticate a new Note that reflects the changed   terms.  Failure to make the appropriate notation or issue a new Note shall not affect the validi-   ty and effect of such amendment, supplement or waiver.   SECTION 8.06. Trustee To Sign Amendments, etc.   The Trustee shall sign any amendment or supplement authorized pursuant to   this Article Eight if the amendment or supplement does not affect the rights, duties, liabilities   or immunities of the Trustee.  If it does affect the rights, duties, liabilities or immunities of the   Trustee, the Trustee may, but need not, sign such amendment or supplement.  Notwithstand-   ing anything herein to the contrary, in signing or refusing to sign an amendment or supple-   ment, the Trustee shall be entitled to receive and, subject to Section 7.01, shall be fully pro-   tected in relying upon an Officer’s Certificate and an Opinion of Counsel stating, in addition   to the matters required by Section 11.04, that the execution of such amendment or supplement   is authorized or permitted by this Indenture and an Opinion of Counsel stating that such   amendment or supplement is a valid and binding obligation of the Issuer and the Guarantors,   enforceable against the Issuer and the Guarantors in accordance with its terms (subject to cus-   tomary exceptions).   ARTICLE NINE      SATISFACTION AND DISCHARGE OF INDENTURE; DEFEASANCE   SECTION 9.01. Satisfaction and Discharge of Indenture.   This Indenture will be discharged and will cease to be of further effect as to all   Notes and Note Guarantees, and the Trustee, at the expense of the Issuer, will execute proper   instruments acknowledging satisfaction and discharge of this Indenture, the Notes and the   Note Guarantees, when all amounts due to the Trustee shall have been paid and either:   (1) the Issuer delivers to the Trustee all outstanding Notes issued under this   Indenture (other than (i) Notes which have been destroyed, lost or stolen and which   have been replaced or paid as provided in Section 2.08 hereof and (ii) Notes for whose   payment money has theretofore been deposited in trust or segregated and held in trust     





 






-84-      by the Issuer and thereafter repaid to the Issuer or discharged from such trust) for can-   cellation; or   (2) (a) all Notes outstanding under this Indenture (I) have become due and   payable, whether at maturity or as a result of the mailing or sending of a notice of re-   demption, or (II) will become due and payable within one year (including as result of   the mailing or sending of a notice of redemption), or are to be called for redemption   within one year, under arrangements for the giving of notice of redemption by the   Trustee in the name, and at the expense, of the Issuer, and the Issuer or any Guarantor   irrevocably deposits with the Trustee as trust funds in trust solely for the benefit of the   Holders, cash in U.S. Dollars, U.S. Government Obligations or a combination thereof   in such amounts as will be sufficient to pay the principal of, premium, if any, and in-   terest on the Notes outstanding under this Indenture on the maturity date or on the ap-   plicable optional redemption date, as the case may be; (b) such deposit shall not result   in a breach or violation of, or constitute a default under, any other material instrument   to which the Issuer or any Guarantor is a party or by which the Issuer or any Guarantor   is bound; (c) the Issuer or any Guarantor has paid or caused to be paid all sums paya-   ble by the Issuer or any Guarantor under this Indenture; and (d) the Issuer have deliv-   ered (I) irrevocable instructions to the Trustee under this Indenture to apply the depos-   ited money toward the payment of the Notes at maturity or the redemption date, as the   case may be, and (II) an Officer’s Certificate and an Opinion of Counsel each stating   that all conditions precedent herein provided for relating to the satisfaction and dis-   charge of this Indenture have been complied with.   The Trustee shall acknowledge satisfaction and discharge of this Indenture on demand of and   at the expense of the Issuer.   Notwithstanding the satisfaction and discharge of this Indenture, the obliga-   tions of the Issuer in Article Two and in Sections 4.02, 7.07, 9.05 and 9.06 shall survive such   satisfaction and discharge.   SECTION 9.02. Legal Defeasance.   The Issuer may, at its option and at any time, elect to have all of its obligations   and the obligations of the Guarantors discharged with respect to the outstanding Notes on a   date the conditions set forth in Section 9.04 are satisfied (hereinafter, “Legal Defeasance”).    For this purpose, such Legal Defeasance means that the Issuer will be deemed to have paid   and discharged the entire indebtedness represented by the outstanding Notes and to have satis-   fied all their other obligations under such Notes and this Indenture insofar as such Notes are   concerned (and the Trustee, at the expense of the Issuer, shall, subject to Section 9.06, execute   instruments in form and substance reasonably satisfactory to the Trustee and the Issuer ac-   knowledging the same), except for the following which shall survive until otherwise terminat-   ed or discharged hereunder:       





 






-85-      (1) the rights of the Holders of the outstanding Notes to receive solely from   the trust described in Section 9.04 and as more fully set forth in Section 9.04, pay-   ments in respect of the principal amount of, premium, if any, and interest on such   Notes when such payments are due,    (2) the Issuer’s obligations with respect to such Notes under Article Two   and Section 4.02,   (3) the rights, powers, trusts, duties, and immunities of the Trustee hereun-   der (including claims of, or payments to, the Trustee under or pursuant to Section   7.07) and the Issuer’s obligations in connection therewith and    (4) this Article Nine.     Concurrently with any Legal Defeasance, the Issuer may, at its further option,   cause to be terminated, as of the date on which such Legal Defeasance occurs, all of the obli-   gations under any or all of the Note Guarantees, if any, then existing and obtain the release of   the Note Guarantees of any or all Guarantors.  In order to exercise such option regarding a   Note Guarantee, the Issuer shall provide the Trustee with written notice of their desire to ter-   minate such Note Guarantee prior to the delivery of the Opinions of Counsel referred to in   Section 9.04.   Subject to compliance with this Article Nine, the Issuer may exercise its option   under this Section 9.02 with respect to the Notes notwithstanding the prior exercise of its op-   tion under Section 9.03 below with respect to the Notes.   SECTION 9.03. Covenant Defeasance.   The Issuer may, at its option and at any time, elect to have its obligations and   the obligations of the Guarantors under Section 4.06, 4.08, 4.09, 4.10, 4.11, 4.15, 4.16 and   4.17 (except for obligations mandated by the TIA) and clauses (3) and (4) of Section 5.01(a)   released with respect to the outstanding Notes on a date the conditions set forth in Section   9.04 are satisfied (hereinafter, “Covenant Defeasance”).  For this purpose, Covenant Defea-   sance means that, with respect to the outstanding Notes, the Issuer may fail to comply with   and shall 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 here-   in or in any other document and such omission to comply shall not constitute a Default or an   Event of Default under Section 6.01, but, except as specified above, the remainder of this In-   denture, the Notes and the Note Guarantees shall be unaffected thereby.  In addition, upon the   Issuer’s exercise of the option in this Section 9.03, subject to the satisfaction of the conditions   set forth in Section 9.04, Sections 6.01(3), (4), (5) and (6) shall not constitute Events of De-   fault.     





 






-86-      Notwithstanding any discharge or release of any obligations under this Inden-   ture pursuant to Section 9.02 or this Section 9.03, the Issuer’s obligations in Article Two and   Sections 7.07, 9.05, 9.06, 9.07 and 9.08 shall survive until such time as the Notes have been   paid in full.  Thereafter, the Issuer’s obligations in Sections 7.07, 9.05, 9.07 and 9.08 shall   survive.   SECTION 9.04. Conditions to Defeasance or Covenant Defeasance.   The following shall be the conditions to application of Section 9.02 or Section   9.03 to the outstanding Notes:   (1) the Issuer must irrevocably deposit with the Trustee, in trust, for the   benefit of the Holders of the Notes issued under this Indenture, cash in U.S. Dollars,   U.S. Government Obligations or a combination thereof, in such amounts as will be   sufficient, in the opinion of a nationally recognized firm of independent public ac-   countants (such opinion shall be delivered to the Trustee, and upon which the Trustee   shall have no liability in relying), to pay the principal, premium, if any, and interest on   the Notes outstanding under this Indenture on the stated maturity or on the applicable   optional redemption date, as the case may be, and the Issuer must specify whether   such Notes are being defeased to maturity or to a particular redemption date;   (2) in the case of Legal Defeasance, the Issuer shall have delivered to the   Trustee an Opinion of Counsel in the United States (upon which the Trustee shall have   no liability in relying) confirming that (a) the Issuer 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 Notes outstanding under this Indenture 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 oc-   curred;   (3) in the case of Covenant Defeasance, the Issuer shall have delivered to   the Trustee an Opinion of Counsel in the United States (upon which the Trustee shall   have no liability in relying) confirming that the Holders of the Notes outstanding un-   der this Indenture will not recognize income, gain or loss for federal income tax pur-   poses 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     





 






-87-      borrowing of funds to be applied to such deposit) or insofar as Events of Default from   bankruptcy or insolvency events are concerned, at any time in the period ending on the   91st day after the date of deposit;   (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 instru-   ment (other than this Indenture) to which the Parent Guarantor or any of its Subsidiar-   ies is a party or by which the Parent Guarantor or any of its Subsidiaries is bound;   (6) the Issuer must deliver to the Trustee an Officer’s Certificate (upon   which the Trustee shall have no liability in relying) stating that the deposit was not   made by the Issuer with the intent of preferring the Holders of Notes issued under this   Indenture over the other creditors of the Issuer with the intent of defeating, hindering,   delaying or defrauding creditors of the Issuer or others; and   (7) the Issuer must deliver to the Trustee an Officer’s Certificate and an   Opinion of Counsel upon which the Trustee shall have the right to rely, each stating   that all conditions precedent provided for relating to the Legal Defeasance or the Cov-   enant Defeasance have been complied with.   SECTION 9.05. Deposited Money and U.S. Government Obligations To Be Held in   Trust.   Subject to Section 9.08, all money and U.S. Government Obligations (includ-   ing the proceeds thereof) deposited with the Trustee pursuant to Section 9.04 in respect of the   outstanding Notes shall 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 Agents, to the Holders of such Notes, of all sums due and to become due thereon in   respect of principal, premium, if any, and accrued interest, but such money need not be segre-   gated from other funds except to the extent required by law.   The Issuer and the Guarantors shall (on a joint and several basis) pay and in-   demnify the Trustee against any tax, fee or other charge imposed on or assessed against the   U.S. Government Obligations deposited pursuant to Section 9.04 or the principal, premium, if   any, and interest received in respect thereof other than any such tax, fee or other charge which   by law is for the account of the Holders of the outstanding Notes.   Anything in this Article Nine to the contrary notwithstanding, the Trustee shall   deliver or pay to the Issuer from time to time upon a request of the Issuer any money or U.S.   Government Obligations held by it as provided in Section 9.04 which, in the opinion of a na-   tionally recognized firm of independent public accountants expressed in a written certification   thereof delivered to the Trustee, are in excess of the amount thereof which would then be re-   quired to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.     





 






-88-      SECTION 9.06. Reinstatement.   If the Trustee or any Paying Agent is unable to apply any money or U.S. Gov-   ernment Obligations in accordance with Section 9.01, 9.02 or 9.03 by reason of any legal pro-   ceeding or by reason of any order or judgment of any court or governmental authority enjoin-   ing, restraining or otherwise prohibiting such application, each Issuer’s and each Guarantor’s   obligations under this Indenture, the Notes and the Note Guarantees shall be revived and rein-   stated as though no deposit had occurred pursuant to this Article Nine until such time as the   Trustee or such Paying Agent is permitted to apply all such money or U.S. Government Obli-   gations in accordance with Section 9.01; provided that if the Issuer or the Guarantors have   made any payment of principal of, premium, if any, or accrued interest on any Notes because   of the reinstatement of their obligations, the Issuer or the Guarantors, as the case may be, shall   be subrogated to the rights of the Holders of such Notes to receive such payment from the   money or U.S. Government Obligations held by the Trustee or any Paying Agent.   SECTION 9.07. Moneys Held by Paying Agent.   In connection with the satisfaction and discharge of this Indenture, all moneys   and U.S. Government Obligations then held by any Paying Agent under the provisions of this   Indenture shall, upon written demand of the Issuer, be paid or delivered to the Trustee, or if   sufficient moneys and U.S. Government Obligations have been deposited pursuant to Section   9.04, to the Issuer upon a request of the Issuer (or, if such moneys and U.S. Government Ob-   ligations had been deposited by the Guarantors, to the Parent Guarantors), and thereupon such   Paying Agent shall be released from all further liability with respect to such moneys.   SECTION 9.08. Moneys Held by Trustee.   Any moneys and U.S. Government Obligations deposited with the Trustee or   any Paying Agent or then held by the Issuer or the Guarantors in trust for the payment of the   principal of, or premium, if any, or interest on any Note that are not applied but remain un-   claimed by the Holder of such Note for two years after the date upon which the principal of,   or premium, if any, or interest on such Note shall have respectively become due and payable   shall be repaid or returned to the Issuer (or, if appropriate, the Guarantors) upon a request of   the Issuer, or if such moneys and U.S. Government Obligations are then held by the Issuer or   the Guarantors in trust, such moneys and U.S. Government Obligations shall be released from   such trust; and the Holder of such Note entitled to receive such payment shall thereafter, as an   unsecured general creditor, look only to the Issuer and the Guarantors for the payment there-   of, and all liability of the Trustee or such Paying Agent with respect to such trust moneys and   U.S. Government Obligations shall thereupon cease; provided that the Trustee or any such   Paying Agent, before being required to make any such repayment, may, at the expense of the   Issuer and the Guarantors, either mail to each Noteholder affected, at the address shown in the   register of the Notes maintained by the Registrar pursuant to Section 2.06, or cause to be pub-   lished once a week for two successive weeks, in one newspaper published in the English lan-    





 






-89-      guage, customarily published each Business Day and of general circulation in The City of   New York, the State of New York, a notice that such moneys and U.S. Government Obliga-   tions remains unclaimed and that, after a date specified therein, which shall not be less than   30 days from the date of such mailing or publication, any unclaimed balance of such moneys   and U.S. Government Obligations then remaining will be repaid or returned to the Issuer.  Af-   ter payment or return to the Issuer or the Guarantors or the release of any moneys and U.S.   Government Obligations held in trust by the Issuer or any Guarantors, as the case may be,   Holders entitled thereto must look only to the Issuer and the Guarantors for payment as gen-   eral creditors unless applicable abandoned property law designates another Person.   ARTICLE TEN      GUARANTEE OF SECURITIES   SECTION 10.01. Guarantee.   The Parent Guarantor, by execution of this Indenture, and any other Guarantor,   by execution of a supplemental indenture substantially in the form of Exhibit J, jointly and   severally, guarantee to each Holder and to the Trustee (i) the due and punctual payment of the   principal of, premium, if any, and interest on each Note, when and as the same shall become   due and payable, whether at maturity, by acceleration or otherwise, the due and punctual   payment of interest on the overdue principal of and interest on the Notes, to the extent lawful,   and the due and punctual payment of all other obligations and due and punctual performance   of all obligations of the Issuer to the Holders or the Trustee all in accordance with the terms of   such Note and this Indenture and (ii) in the case of any extension of time of payment or re-   newal 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, at stated   maturity, by acceleration or otherwise.  Each Guarantor, by execution of this Indenture, and   any other Guarantor, by execution of a supplemental indenture substantially in the form of   Exhibit J, agrees that, subject only to the applicable provisions, if any, of Section 10.06, its   obligations hereunder shall be absolute and unconditional, irrespective of, and shall be unaf-   fected by, any invalidity, irregularity or unenforceability of any such Note or this Indenture,   any failure to enforce the provisions of any such Note or this Indenture, any waiver, modifica-   tion or indulgence granted to the Issuer with respect thereto by the Holder of such Note, or   any other circumstances which may otherwise constitute a legal or equitable discharge of a   surety or such Guarantor.  Each Guarantor further agrees that its Note Guarantee herein con-   stitutes a Guarantee of payment when due (and not a Guarantee of collection).   Each Guarantor hereby waives diligence, presentment, demand for payment,   filing of claims with a court in the event of merger or bankruptcy of the Issuer, any right to   require a proceeding first against the Issuer, protest or notice with respect to any such Note or   the Indebtedness evidenced thereby and all demands whatsoever, and covenants that this   Guarantee will not be discharged as to any such Note except by payment in full of the princi-    





 






-90-      pal thereof and interest thereon.  Each Guarantor hereby agrees that, as between such Guaran-   tor, on the one hand, and the Holders and the Trustee, on the other hand, (i) the maturity of the   obligations guaranteed hereby may be accelerated as provided in Article Six for the purposes   of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such   acceleration in respect of the obligations guaranteed hereby, and (ii) in the event of any decla-   ration of acceleration of such obligations as provided in Article Six, such obligations (whether   or not due and payable) shall forthwith become due and payable by the Parent Guarantor for   the purpose of this Guarantee.   The Guarantors shall 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 Trustee or any   Holder under the Note Guarantees.   SECTION 10.02. Execution and Delivery of Note Guarantee.   To further evidence the Note Guarantee set forth in Section 10.01, each Guar-   antor hereby agrees that a notation of such Note Guarantee, substantially in the form attached   hereto as Exhibit I, shall be endorsed on each Note authenticated and delivered by the Trustee   and such Note Guarantee shall be executed by either manual or facsimile signature of an Of-   ficer of the each Guarantor.  The validity and enforceability of any Note Guarantee shall not   be affected by the fact that it is not affixed to any particular Note.   Each of the Guarantors hereby agrees that its Note Guarantee set forth in Sec-   tion 10.01 shall be in full force and effect notwithstanding any failure to endorse on each Note   a notation of such Note Guarantee.   If an Officer of a Guarantor whose signature is on this Indenture or a Note   Guarantee no longer holds that office at the time the Trustee authenticates the Note on which   such Note Guarantee is endorsed or at any time thereafter, such Guarantor’s Guarantee of   such Note shall be valid nevertheless.   The delivery of any Note by the Trustee, after the authentication thereof here-   under, shall constitute due delivery of any Note Guarantee set forth in this Indenture on behalf   of the Guarantor.   SECTION 10.03. Release of Guarantors.   (a) A Note Guarantee of a Guarantor (other than clauses (1) and (2) below   with respect to a company that is a direct or indirect parent of the Issuer) will be uncondition-   ally and automatically released and discharged upon any of the following:   (1) any Transfer (including, without limitation, by way of consolidation or   merger) by any Guarantor to any Person that is not a Guarantor of all or substantially     





 






-91-      all of the properties and assets of such Guarantor; provided that such Guarantor is also   released from all of its obligations in respect of Indebtedness under each Credit Facili-   ty and any other Indebtedness that gave rise to the obligation to provide such Note   Guarantee;   (2) any Transfer directly or indirectly (including, without limitation, by   way of consolidation or merger) to any Person that is not a Guarantor of Equity Inter-   ests of a Guarantor or any issuance by a Guarantor of its Equity Interests, such that   such Guarantor ceases to be a Subsidiary; provided that such Guarantor is also re-   leased from all of its obligations in respect of Indebtedness under each Credit Facility   and any other Indebtedness that gave rise to the obligation to provide such Note Guar-   antee;    (3) the release of such Guarantor from all obligations of such Guarantor in   respect of Indebtedness under each Credit Facility and any other Indebtedness that   gave rise to the obligation to provide such Note Guarantee; or   (4) upon legal defeasance, covenant defeasance or satisfaction and dis-   charge of this Indenture in accordance with Article Nine.   (b) No such release and discharge of a Note Guarantee of a Guarantor shall   be effective against the Trustee or the Holders of Notes to which such Note Guarantee   relates (i) if an Event of Default shall have occurred and be continuing under this In-   denture as of the time of such proposed release until such time as such Event of De-   fault is cured and waived (unless such release is in connection with the sale of the Eq-   uity Interests in such Guarantor constituting collateral for a Credit Facility in connec-   tion with the exercise of remedies against such Equity Interests or in connection with a   Transfer permitted by this Indenture if, but for the existence of such Event of Default,   such Guarantor would otherwise be entitled to be released from its Guarantee follow-   ing the sale of such Equity Interests) and (ii) until the Issuer shall have delivered to the   Trustee an Officer’s Certificate and an Opinion of Counsel, upon which the Trustee   shall have the right to rely, stating that all conditions precedent provided for in this In-   denture relating to such release and discharge have been complied with and that such   release and discharge is permitted under this Indenture.     (c) If the Note Guarantee of any Guarantor is deemed to be released or is   automatically released, the Issuer shall deliver to the Trustee an Officer’s Certificate   stating the identity of the released Guarantor, the basis for release in reasonable detail,   and that such release complies with this Indenture. At the request of the Issuer, and   upon delivery to the Trustee of an Officer’s Certificate and an Opinion of Counsel that   a Guarantor has been released and that execution by the Trustee of an appropriate in-   strument evidencing the release of the Parent Guarantor from its Guarantee complies   with this Indenture, the Trustee shall execute any documents reasonably requested by     





 






-92-      either the Issuer or a Guarantor in order to evidence the release of the Parent Guaran-   tor from its obligations under its Guarantee endorsed on the Notes and under this Arti-   cle Ten (it being understood that the failure to obtain any such instrument shall not   impair any automatic release pursuant to this Section 10.03).   SECTION 10.04. Waiver of Subrogation.   Each Guarantor hereby irrevocably waives any claim or other rights which it   may now or hereafter acquire against the Issuer that arise from the existence, payment, per-   formance or enforcement of such Guarantor’s obligations under its Note Guarantee and this   Indenture, including, without limitation, any right of subrogation, reimbursement, exonera-   tion, indemnification, and any right to participate in any claim or remedy of any Holder of   Notes against the Issuer, whether or not such claim, remedy or right arises in equity, or under   contract, statute or common law, including, without limitation, the right to take or receive   from the Issuer, directly or indirectly, in cash or other property or by set-off or in any other   manner, payment or Note on account of such claim or other rights.  If any amount shall be   paid to any Guarantor in violation of the preceding sentence and the Notes shall not have been   paid in full, such amount shall have been deemed to have been paid to such Guarantor for the   benefit of, and held in trust for the benefit of, the Holders of the Notes, and shall forthwith be   paid to the Trustee for the benefit of such Holders to be credited and applied upon the Notes,   whether matured or unmatured, in accordance with the terms of this Indenture.  Each   acknowledges that it will receive direct and indirect benefits from the financing arrangements   contemplated by this Indenture and that the waiver set forth in this Section 10.04 is knowingly   made in contemplation of such benefits.   SECTION 10.05. Notice to Trustee.   The Issuer or any Guarantor shall give prompt written notice to the Trustee of   any fact known to such Issuer or any such Guarantor which would prohibit the making of any   payment to or by the Trustee at its Corporate Trust Office in respect of the Note Guarantees.    Notwithstanding the provisions of this Article Ten or any other provision of this Indenture,   the Trustee shall not be charged with knowledge of the existence of any facts which would   prohibit the making of any payment to or by the Trustee in respect of the Note Guarantees,   unless and until a Responsible Officer of the Trustee shall have received written notice there-   of from the Issuer no later than three Business Days prior to such payment; and, prior to the   receipt of any such written notice, the Trustee, subject to the provisions of this Section 10.05,   and subject to the provisions of Sections 7.01 and 7.02, shall be entitled in all respects to as-   sume that no such facts exist; provided, however, that if the Trustee shall not have received   the notice referred to in this Section 10.05 at least three Business Days prior to the date upon   which by the terms hereof any such payment may become payable for any purpose under this   Indenture (including, without limitation, the payment of the principal of, premium, if any, or   interest on any Note), then, anything herein contained to the contrary notwithstanding, the   Trustee shall have full power and authority to receive such money and to apply the same to     





 






-93-      the purpose for which such money was received and shall not be affected by any notice to the   contrary which may be received by it less than three Business Days prior to such date.   SECTION 10.06. Limitation on Guarantor’s Liability.   Each Guarantor, and by its acceptance hereof, each Holder and the Trustee,   hereby confirm that it is the intention of all such parties that the Guarantee of a Guarantor   does not constitute a fraudulent transfer or conveyance for purposes of Title 11 of the United   States Code, as amended, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent   Transfer Act or any similar U.S. Federal or state or other applicable law.  To effectuate the   foregoing intention, each Holder and each Guarantor hereby irrevocably agree that the obliga-   tions of a Guarantor under its Note Guarantee shall be limited to the maximum amount as   will, after giving effect to all other contingent and fixed liabilities of such Guarantor result in   the obligations of such Guarantor not constituting such a fraudulent transfer or conveyance.   ARTICLE ELEVEN      MISCELLANEOUS    SECTION 11.01. Trust Indenture Act Controls.   If any provision of this Indenture limits, qualifies or conflicts with another   provision which is required to be included in this Indenture by the TIA, the required provision   shall control.  If any provision of this Indenture modifies any TIA provision that may be so   modified, such TIA provision shall be deemed to apply to this Indenture as so modified.  If   any provision of this Indenture excludes any TIA provision that may be so excluded, such   TIA provision shall be excluded from this Indenture.   The provisions of TIA §§ 310 through 317 that impose duties on any Person   (including the provisions automatically deemed included unless expressly excluded by this   Indenture) are a part of and govern this Indenture, whether or not physically contained herein.   SECTION 11.02. Notices.   Except for notice or communications to Holders, any notice or communication   shall be given in writing and delivered in person or mailed by first class mail (registered or   certified, return receipt requested), telex, telecopier or overnight air courier guaranteeing next   day delivery, addressed as follows:   If to the Issuer or any Guarantor:      WESCO Distribution, Inc.     





 






-94-      225 West Station Square Drive, Suite 700   Pittsburgh, Pennsylvania 15219-1122          Facsimile: (412) 222-7566    Attention: Chief Financial Officer       with a copy to:      225 West Station Square Drive, Suite 700   Pittsburgh, Pennsylvania 15219-1122   Facsimile: (412) 222-7304   Attention: General Counsel       with a copy to:       Jones Day   901 Lakeside Avenue   Cleveland, Ohio 44114   Facsimile: (216) 579-0212   Attention: Michael J. Solecki      If to the Trustee:      U.S. Bank National Association   225 West Station Square Drive, Suite 620   Pittsburgh, PA  15219    Attention: Corporate Trust Services   The Issuer, the Guarantors or the Trustee by written 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) shall be   deemed to have been duly given at the time delivered by hand, if personally delivered; five (5)   calendar days after mailing if sent by registered or certified mail, postage prepaid (except that   a notice of change of address shall not be deemed to have been given until actually received   by the addressee); when answered back, if telexed; when receipt acknowledged, if telecopied;   and the next Business Day after timely delivery to the courier, if sent by overnight air courier   guaranteeing next day delivery.   The Trustee shall accept and act upon instructions, directions, reports, notices   and other communications or information pursuant to this Indenture sent by unsecured     





 






-95-      electronic transmissions (including email and .pdf attachments); provided that (i) the Trustee   shall not have any duty or obligation to verify or confirm that the Person sending instructions,   directions, reports, notices or other communications or information by electronic transmission   is, in fact, a Person authorized to give such instructions, directions, reports, notices or other   communications or information on behalf of the party purporting to send such electronic   transmission; and the Trustee shall not have any liability for any losses, liabilities, costs or   expenses incurred or sustained by any party as a result of such reliance upon or compliance   with such instructions, directions, reports, notices or other communications or information   and (ii) each other party agrees to assume all risks arising out of the use of electronic methods   to submit instructions, directions, reports, notices or other communications or information to   the Trustee, including the risk of the Trustee acting on unauthorized instructions, notices,   reports or other communications or information, and the risk of interception and misuse by   third parties.   Any notice or communication to a Holder shall be mailed by first class mail,   certified or registered, return receipt requested, or by overnight air courier guaranteeing next   day delivery to its address shown on the register kept by the Registrar.  Any notice or com-   munication shall also be so mailed to any Person described in TIA § 313(c), to the extent re-   quired by the TIA.  Failure to mail a notice or communication to a Holder or any defect in it   shall not affect its sufficiency with respect to other Holders.  Where this Indenture or any   Note provides for notice of any event (including any notice of redemption or repurchase) to a   Holder of a Global Note (whether by mail or otherwise), such notice shall be sufficiently giv-   en if given to the Depositary (or its designee) pursuant to the standing instructions from the   Depositary or its designee, including by electronic mail in accordance with applicable Deposi-   tary procedures.   If a notice or communication to a Holder is mailed in the manner provided   above, it shall be deemed duly given, whether or not the addressee receives it.   In case by reason of the suspension of regular mail service, or by reason of any   other cause, it shall be impossible to mail any notice as required by this Indenture, then such   method of notification as shall be made with the approval of the Trustee shall constitute a suf-   ficient mailing of such notice.   Notwithstanding anything herein to the contrary, any notice to the Trustee shall   be deemed given when actually received.     SECTION 11.03. Communications by Holders with Other Holders.   Holders may communicate pursuant to TIA § 312(b) with other Holders with   respect to their rights under this Indenture or the Notes.  The Issuer, the Guarantors, the Trus-   tee, the Registrar, each Agent and anyone else shall have the protection of TIA § 312(c).     





 






-96-      SECTION 11.04. Certificate and Opinion as to Conditions Precedent.   Upon any request or application by the Issuer or any Guarantor to the Trustee   to take any action under this Indenture, such Issuer or such Guarantor shall furnish to the   Trustee:   (1) an Officer’s Certificate (which shall include the statements set forth in   Section 11.05 below) stating that, in the opinion of the signers, all conditions prece-   dent and covenants, if any, provided for in this Indenture relating to the proposed ac-   tion have been complied with; and   (2) an Opinion of Counsel (which shall include the statements set forth in   Section 11.05 below) stating that, in the opinion of such counsel, all such conditions   precedent and covenants have been complied with.   SECTION 11.05. Statements Required in Certificate and Opinion.   Each certificate and opinion with respect to compliance by or on behalf of the   Issuer or any Guarantor with a condition or covenant provided for in this Indenture shall in-   clude:   (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 inves-   tigation upon which the statements or opinions contained in such certificate or opinion   are based;   (3) a statement that, in the opinion of such Person, it or he has made such   examination or investigation as is necessary to enable it or him to express an informed   opinion as to whether or not such covenant or condition has been complied with; and   (4) a statement as to whether or not, in the opinion of such Person, such   covenant or condition has been complied with.   SECTION 11.06. Rules by Trustee and Agents.   The Trustee may make reasonable rules for action by or meetings of Notehold-   ers.  The Registrar and Paying Agent may make reasonable rules for their functions.   SECTION 11.07. Business Days; Legal Holidays.   A “Business Day” is a day that is not a Legal Holiday.  A “Legal Holiday” is a   Saturday, a Sunday or other day on which commercial banks in The City of New York, the     





 






-97-      State of New York are authorized or required by law to close.  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 for the intervening period.   SECTION 11.08. Governing Law.   This Indenture, the Notes and the Note Guarantees shall be governed by, and   construed in accordance with the laws of the State of New York.   SECTION 11.09. No Adverse Interpretation of Other Agreements.   This Indenture may not be used to interpret another indenture, loan, security or   debt agreement of the Parent Guarantor or any Subsidiary thereof.  No such indenture, loan,   security or debt agreement may be used to interpret this Indenture.   SECTION 11.10. Successors.   All agreements of the Issuer and the Guarantors in this Indenture and the Notes   shall bind their respective successors.  All agreements of the Trustee, any additional trustee   and any Agents in this Indenture shall bind its successor.   SECTION 11.11. Multiple Counterparts.   The parties may sign multiple counterparts of this Indenture.  Each signed   counterpart shall be deemed an original, but all of them together represent one and the same   agreement.  The exchange of copies of this Indenture and of signature pages by facsimile or   PDF transmission shall constitute effective execution and delivery of this Indenture as to the   parties hereto and may be used in lieu of the original Indenture for all purposes. Signatures of   the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signa-   tures for all purposes.   SECTION 11.12. Table of Contents, Headings, etc.   The table of contents, cross-reference sheet 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 hereof, and shall in no way modify or restrict any of the terms or provisions   hereof.   SECTION 11.13. Separability.   Each provision of this Indenture shall be considered separable and if for any   reason any provision which is not essential to the effectuation of the basic purpose of this In-   denture or the Notes shall be invalid, illegal or unenforceable, the validity, legality and en-   forceability of the remaining provisions shall not in any way be affected or impaired thereby.     





 






-98-      SECTION 11.14. Waiver of Jury Trial   THE ISSUER, THE GUARANTORS AND THE TRUSTEE, AND EACH   HOLDER OF A NOTE BY ITS ACCEPTANCE THEREOF, IRREVOCABLY WAIVES,   TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL   RIGHTS TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR   RELATING TO THIS INDENTURE, THE NOTES, THE NOTE GUARANTEES OR ANY   TRANSACTION CONTEMPLATED HEREBY.   SECTION 11.15. Force Majeure.   In no event shall the Trustee be responsible or liable for any failure or delay in   the performance of its obligations hereunder arising out of or caused by, directly or indirectly,   forces beyond its control, including, without limitation, strikes, work stoppages, accidents,   acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts   of God, and interruptions, loss or malfunctions of utilities, communications or computer   (software and hardware) services; it being understood that the Trustee shall use reasonable   efforts which are consistent with accepted practices in the banking industry to resume perfor-   mance as soon as practicable under the circumstances   SECTION 11.16.  U.S.A. Patriot Act.   The Issuer and the Guarantors acknowledge that in accordance with Section   326 of the U.S.A. PATRIOT Act, the Trustee, like all financial institutions and in order to   help fight the funding of terrorism and money laundering, is required to obtain, verify, and   record information that identifies each person or legal entity that establishes a relationship or   opens an account with the Trustee. The parties to this Indenture agree that they will provide   the Trustee with such information as it may request in order for the Trustee to satisfy the re-   quirements of the U.S.A. PATRIOT Act.   [Signature Pages Follow]     





 






         IN WITNESS WHEREOF, the parties have caused this Indenture to be duly   executed all as of the date and year first written above.   WESCO DISTRIBUTION, INC.,   as Issuer   By: /s/ Brian M. Begg    Name: Brian M. Begg    Title:   Treasurer            





 






      WESCO INTERNATIONAL, INC. as the Parent   Guarantor   By:  /s/ Brian M. Begg    Name: Brian M. Begg    Title:   Treasurer         





 






         U.S. BANK NATIONAL ASSOCIATION, as   Trustee   By:   /s/ Robert P. Pavlovic    Name: Robert P. Pavlovic    Title:   Vice President         





 






   A-1-1      EXHIBIT A-1   [FORM OF RESTRICTED NOTE]   WESCO DISTRIBUTION, INC.   5.375% SENIOR NOTE DUE 2024   [Insert Global Note Legend, if applicable]   [Insert Private Placement Legend]   No. [  ] CUSIP No. [          ]    ISIN No. [          ]    $[          ]   WESCO DISTRIBUTION, INC., a Delaware corporation (the “Issuer”), for   value received promises to pay to [                  ] or registered assigns the principal sum of   [                 ] (or such other principal amount as shall be set forth in the Schedule of Exchang-   es of Interests in Global Note attached hereto), on June 15, 2024.   Interest Payment Dates: June 15 and December 15, commencing December 15, 2016.   Record Dates: June 1 and December 1 (whether or not a Business Day).   Reference is made to the further provisions of this Note contained herein,   which will for all purposes have the same effect as if set forth at this place.     





 






   A-1-2         IN WITNESS WHEREOF, the Issuer has caused this Note to be signed manu-   ally or by facsimile by a duly authorized officer.   WESCO DISTRIBUTION, INC.   By:      Name:    Title:         





 






   A-1-3         Certificate of Authentication   This is one of the 5.375% Senior Notes due 2024 referred to in the within-   mentioned Indenture.   U.S. BANK NATIONAL ASSOCIATION,    as Trustee   By:      Dated:  [             ]        





 






   A-1-4      [FORM OF REVERSE OF RESTRICTED NOTE]   WESCO DISTRIBUTION, INC.   5.375% SENIOR NOTE DUE 2024   1. Interest.  WESCO DISTRIBUTION, INC., a Delaware corporation (the   “Issuer”), promises to pay interest on the principal amount set forth on the face hereof at a   rate of 5.375% per annum.  Interest hereon will accrue from and including the most recent   date to which interest has been paid or, if no interest has been paid, from and including June   15, 2016 to but excluding the date on which interest is paid.  Interest shall be payable in ar-   rears on each June 15 and December 15, commencing December 15, 2016.  Interest will be   computed on the basis of a 360-day year of twelve 30-day months and actual days elapsed.    The Issuer shall pay interest on overdue principal and on overdue interest (to the full extent   permitted by law) at the rate borne by the Notes.   2. Method of Payment.  The Issuer will pay interest hereon (except de-   faulted interest) to the Persons who are registered Holders at the close of business on June 1   or December 1 preceding the Interest Payment Date (whether or not a Business Day).  Hold-   ers must surrender Notes to a Paying Agent to collect principal payments.  The Issuer will pay   principal and interest in U.S. Dollars.  Interest may be paid by check mailed to the Holder en-   titled thereto at the address indicated on the register maintained by the Registrar for the Notes.   3. Paying Agent and Registrar.  Initially, U.S. Bank National Association   (the “Trustee”) will act as a Paying Agent and Registrar.  The Issuer may change any Paying   Agent or Registrar without notice.  The Issuer or any Affiliate thereof may act as Paying   Agent or Registrar.   4. Indenture.  The Issuer issued the Notes under an Indenture dated as of   June 15, 2016 (the “Indenture”) among the Issuer, the Parent Guarantor and the Trustee.  This   is one of an issue of Notes of the Issuer issued, or to be issued, under the Indenture.  The   terms of the Notes include those stated in the Indenture and those made part of the Indenture   by reference to the Trust Indenture Act of 1939 (15 U.S. Code §§ 77aaa-77bbbb), as amended   from time to time.  The Notes are subject to all such terms, and Holders are referred to the In-   denture and such Act for a statement of them.  Capitalized and certain other terms used herein   and not otherwise defined have the meanings set forth in the Indenture.   5. Optional Redemption.   At any time prior to June 15, 2019, the Issuer may on any one or more occa-   sions redeem up to (i) 35% of the original aggregate principal amount of Notes issued under   the Indenture and (ii) all or a portion of any Additional Notes issued after the Issue Date, upon   not less than 30 nor more than 60 days’ notice, at a redemption price equal to 105.375% of the   principal amount of the Notes redeemed, plus accrued and unpaid interest, if any, to but ex-   cluding the date of redemption, with an amount of cash no greater than the cash proceeds (net     





 






   A-1-5      of underwriting discounts and commissions) of all Equity Offerings since the Issue Date; pro-   vided that:    (1) at least 65% (calculated after giving effect to any issuance of Addition-   al Notes) of the aggregate principal amount of Notes issued under the Indenture (ex-   cluding Notes held by the Issuer and its Subsidiaries) remains outstanding immediate-   ly after the occurrence of such redemption; and    (2) the redemption occurs within 180 days of the date of the closing of   such Equity Offering.   In addition, prior to June 15, 2019, the Issuer may redeem the Notes, in whole   or in part, at a redemption price equal to 100% of the principal amount thereof, plus accrued   and unpaid interest, if any, to but excluding the Make-Whole Redemption Date, plus the ap-   plicable Make-Whole Premium (a “Make-Whole Redemption”). The Issuer shall notify the   Trustee of the Make-Whole Premium by delivering to the Trustee, on or before the applicable   Redemption Date, an Officer’s Certificate showing the calculation thereof in reasonable de-   tail, and the Trustee shall have no responsibility for verifying or otherwise for such calcula-   tion.   On or after June 15, 2019, the Issuer may on any one or more occasions re-   deem all or a part of the Notes, upon not less than 30 nor more than 60 days’ notice, at the re-   demption prices (expressed as percentages of principal amount) set forth below, plus accrued   and unpaid interest, if any, on the notes redeemed, to but excluding the applicable Redemp-   tion Date, if redeemed during the twelve-month period beginning on June 15 of the years in-   dicated below:       Year   Percentage     2019 ............................................................... 104.031%   2020 ............................................................... 102.688%   2021 ............................................................... 101.344%   2022 and thereafter ........................................ 100.000%      Unless the Issuer 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 re-   demption date. The Issuer may provide in such notice that payment of the redemption price   and performance of the Issuer’s obligations with respect to such redemption may be per-   formed by another Person.    In addition, the Issuer may acquire Notes by means other than a redemption,   whether by tender offer, open market purchases, negotiated transactions or otherwise, in ac-   cordance with applicable securities laws, so long as such acquisition does not otherwise vio-   late the terms of the Indenture.     





 






   A-1-6      Notwithstanding the foregoing, the payment of accrued but unpaid interest in   connection with the redemption of Notes is subject to the rights of a Holder of Notes on a rec-   ord date for the payment of interest whose Notes are to be redeemed on or after such record   date but on or prior to the related interest payment date to receive interest on such interest   payment date.   6. Notice of Redemption.  Notices of redemption shall be mailed by first   class mail or sent electronically at least 30 but not more than 60 days before the Redemption   Date to each Holder of Notes to be redeemed at its registered address (or to the extent permit-   ted or required by applicable Depositary procedures or regulations with respect to global   Notes, sent electronically).  If any Note is to be redeemed in part only, the notice of redemp-   tion that relates to such Note shall state the portion of the principal amount thereof to be re-   deemed.  Any redemption and notice thereof may, in the Issuer’s discretion, be subject to the   satisfaction of one or more conditions precedent described in the notice relating to such re-   demption.   7. Offers To Purchase.  The Indenture provides that upon the occurrence   of a Change of Control or an Asset Sale and subject to further limitations contained therein,   the Issuer shall make an offer to purchase outstanding Notes in accordance with the proce-   dures set forth in the Indenture.   8. Registration Rights Agreement.  The Holder of this Note is entitled to   the benefits of the Registration Rights Agreement.   The Holders shall be entitled under the Registration Rights Agreement to re-   ceive Additional Interest hereon upon certain conditions, all pursuant to and in accordance   with the terms of the Registration Rights Agreement.   9. Denominations, Transfer, Exchange.  The Notes are in registered form   without coupons in denominations of $2,000 and integral multiples of $1,000 in excess of   $2,000.  A Holder may transfer or exchange Notes in accordance with the Indenture.  The   Registrar may require a Holder, among other things, to furnish appropriate endorsements and   transfer documents and to pay to it any taxes and fees required by law or permitted by the In-   denture.  The Registrar need not register the transfer of or exchange any Notes or portion of a   Note selected for redemption, or register the transfer of or exchange any Notes for a period of   15 days before a mailing of notice of redemption.   10. Persons Deemed Owners.  The registered Holder of this Note may be   treated as the owner of this Note for all purposes.   11. Unclaimed Money.  If money held by the Paying Agent or Trustee for   the payment of principal or interest remains unclaimed for two years, the Paying Agent or   Trustee, as applicable, will pay such money back to the Issuer at its written request.  After   that, Holders entitled to the money must look to the Issuer and the Guarantors for payment as   general creditors unless an “abandoned property” law designates another Person.     





 






   A-1-7      12. Amendment, Supplement, Waiver, Etc.  The Issuer and the Trustee   may, without the consent of the Holders of any outstanding Notes, amend, waive or supple-   ment the Indenture or the Notes for certain specified purposes, including, among other things,   curing ambiguities, omissions, defects or inconsistencies, maintaining the qualification of the   Indenture under the TIA, providing for the assumption by a successor to the Issuer of its obli-   gations to the Holders and making any change that does not adversely affect the rights of any   Holder in any material respect.  Other amendments and modifications of the Indenture or the   Notes may be made by the Issuer and the Trustee with the consent of the Holders of not less   than a majority of the aggregate principal amount of the outstanding Notes, subject to certain   exceptions requiring the consent of the Holders of the particular Notes to be affected.   13. Restrictive Covenants.  The Indenture imposes certain limitations on   the ability of the Parent Guarantor and its Subsidiaries to, among other things, create liens,   make Restricted Payments, enter into Sale and Leaseback Transactions or consolidate, merge   or sell all or substantially all of the assets of the Parent Guarantor and its Subsidiaries and re-   quires the Issuer to provide reports to Holders of the Notes.  Such limitations are subject to a   number of important qualifications and exceptions.  Pursuant to Section 4.06 of the Indenture,   the Issuer must annually report to the Trustee on compliance with such limitations.   14. Successor Corporation.  When a successor corporation assumes all the   obligations of its predecessor under the Notes and the Indenture and the transaction complies   with the terms of Article Five of the Indenture, the predecessor corporation will, except as   provided in Article Five, be released from those obligations.   15. Defaults and Remedies.  Events of Default are set forth in the Inden-   ture.  If an Event of Default occurs and is continuing under the Indenture, either the Trustee,   by notice in writing to the Issuer, or the Holders of at least 25% in aggregate principal amount   of the Notes then outstanding, by notice in writing to the Issuer and the Trustee specifying the   respective Event of Default and that it is a “notice of acceleration”, may declare the principal   of and premium, if any, and accrued interest, if any, on the Notes to be due and payable, and   upon such declaration of acceleration, such principal of and premium, if any, and accrued in-   terest, if any, shall be immediately due and payable; provided, however, that, notwithstanding   the foregoing, if an Event of Default specified in Section 6.01(7) occurs with respect to the   Issuer, the principal of and premium, if any, and accrued interest, if any, on the Notes then   outstanding shall become and be immediately due and payable without any declaration or oth-   er act on the part of the Trustee or any Holder.   Notwithstanding the foregoing, if after such acceleration but before a judgment   or decree based on such acceleration is obtained by the Trustee, the Holders of a majority in   aggregate principal amount of outstanding Notes may rescind and annul such acceleration if:    (1) all Events of Default, other than nonpayment of principal, premium, if   any, or interest that has become due solely because of the acceleration, have been   cured or waived;     





 






   A-1-8      (2) to the extent the payment of such interest is lawful, interest on overdue   installments of interest and overdue principal, which has become due otherwise than   by such declaration of acceleration, has been paid;   (3) the Issuer has paid the Trustee its reasonable compensation and reim-   bursed the Trustee for its expenses, disbursements and advances; and    (4) in the event of the cure or waiver of an Event of Default of the type de-   scribed in Section 6.01(7), the Trustee shall have received an Officer’s Certificate and   an Opinion of Counsel that such Event of Default has been cured or waived.   No such rescission shall affect any subsequent Default or impair any right consequent thereto.   Holders may not enforce the Indenture or the Notes except as provided in the   Indenture.  The Trustee may require indemnity satisfactory to it before it enforces the Inden-   ture or the Notes.  Subject to certain limitations, Holders of a majority in principal amount of   the then outstanding Notes may direct the Trustee in its exercise of any trust or power.  The   Trustee may withhold from Holders notice of any continuing Default or Event of Default (ex-   cept a Default or Event of Default relating to the payment of principal of  or interest on the   Notes) if it determines that withholding notice is in their best interests.   16. Trustee Dealings with the Issuer.  The Trustee, in its individual or any   other capacity, may make loans to, accept deposits from and perform services for the Issuer or   its Affiliates, and may otherwise deal with the Issuer or its Affiliates, as if it were not Trustee.   17. No Recourse Against Others.  No director, officer, employee, incorpo-   rator, member of the Board of Directors or holder of Capital Stock of the Parent Guarantor or   of any Subsidiary, as such, shall have any liability for any obligations of the Issuer or the   Guarantors under the Notes, the Indenture or the Note Guarantees or for any claim based on,   in respect of, or by reason of, such obligations or their creation.  Each Holder of Notes by ac-   cepting a Note waives and releases all such liability.    18. Satisfaction and Discharge.  The Issuer’s and each Guarantors’ obliga-   tions pursuant to the Indenture will be discharged, except for obligations pursuant to certain   sections thereof, subject to the terms of the Indenture, upon the payment of all the Notes or   upon the irrevocable deposit with the Trustee of cash in U.S. Dollars, U.S. Government Obli-   gations or a combination thereof, in such amounts as will be sufficient to pay when due prin-   cipal of and interest on the Notes to maturity or redemption, as the case may be.   19. Guarantees.  From and after the Issue Date, the Notes will be entitled to   the benefits of certain Note Guarantees made for the benefit of the Holders.  Reference is   hereby made to the Indenture for a statement of the respective rights, limitations of rights, du-   ties and obligations thereunder of the Guarantors, the Trustee and the Holders.   20. Authentication.  This Note shall not be valid until the Trustee manually   signs the certificate of authentication on the other side of this Note.     





 






   A-1-9      21. Governing Law.  THIS NOTE SHALL BE GOVERNED BY AND   CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,   BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF   LAW TO THE EXTENT THAT THE APPLICATION OF THE LAW OF ANOTHER   JURISDICTION WOULD BE REQUIRED THEREBY.   22. Abbreviations.  Customary abbreviations may be used in the name of a   Holder or an assignee, such as:  TEN COM (= tenants in common), TENANT (= tenants by   the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in com-   mon), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).   The Issuer will furnish to any Holder upon written request and without charge   a copy of the Indenture.  Requests may be made to:   WESCO Distribution, Inc.   225 West Station Square Drive, Suite 700   Pittsburgh, Pennsylvania 15219-1122          Facsimile: (412) 222-7566   Attention: Chief Financial Officer        





 






   A-1-10         ASSIGNMENT   I or we assign and transfer this Note to:     (Insert assignee’s social security or tax I.D. number)      (Print or type name, address and zip code of assignee)   and irrevocably appoint        Agent to transfer this Note on the books of the Issuer.  The Agent may substitute another to   act for him.   Date:   Your Signature:     (Sign exactly as your name appears on   the other side of this Note)   Signature Guarantee: ______________________________   SIGNATURE GUARANTEE   Signatures must be guaranteed by an “eligible guarantor institution” meeting   the requirements of the Registrar, which requirements include membership or participation in   the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guaran-   tee program” as may be determined by the Registrar in addition to, or in substitution for,   STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.        





 






   A-1-11         OPTION OF HOLDER TO ELECT PURCHASE   If you want to elect to have all or any part of this Note purchased by the Issuer   pursuant to Section 4.08 or Section 4.09 check the appropriate box:    Section 4.08    Section 4.09   If you want to have only part of the Note purchased by the Issuer pursuant to   Section 4.08 or Section 4.09 of the Indenture, state the amount you elect to have purchased:   $     ($1,000 or integral multiples in excess   of $2,000; provided that the part not   purchased must be at least $2,000)   Date:    Your Signature: ___________________________________   (Sign exactly as your name appears on the   face of this Note)       Signature Guaranteed   SIGNATURE GUARANTEE   Signatures must be guaranteed by an “eligible guarantor institution” meeting   the requirements of the Registrar, which requirements include membership or participation in   the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guaran-   tee program” as may be determined by the Registrar in addition to, or in substitution for,   STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.        





 






   A-1-12      SCHEDULE OF EXCHANGES OF INTERESTS IN GLOBAL NOTE*   The following exchanges of a part of this Global Note for an interest in another   Global Note or for a Physical Note, or exchanges of a part of another Global Note or Physical   Note for an interest in this Global Note, have been made:      Date of Exchange   Amount of decrease in   Principal Amount    of    this Global Note   Amount of increase in   Principal Amount    of    this Global Note   Principal Amount    of this Global Note   following such de-   crease    (or increase)   Signature of authorized   signatory of Trustee                    * Insert in Global Securities only.     





 






   A-2-1      EXHIBIT A-2   [FORM OF UNRESTRICTED NOTE]   WESCO DISTRIBUTION, INC.   5.375% SENIOR NOTE DUE 2024   [Insert Global Note Legend, if applicable]   No. [  ] CUSIP No. [          ]    ISIN No. [          ]    $[          ]   WESCO DISTRIBUTION, INC., a Delaware corporation (the “Issuer”), for   value received promises to pay to [                  ] or registered assigns the principal sum of   [                    ] (or such other principal amount as shall be set forth in the Schedule of Ex-   changes of Interests in Global Note attached hereto), on June 15, 2024.   Interest Payment Dates: June 15 and December 15, commencing December 15, 2016.   Record Dates: June 1 and December 1 (whether or not a Business Day).   Reference is made to the further provisions of this Note contained herein,   which will for all purposes have the same effect as if set forth at this place.     





 






   A-2-2      IN WITNESS WHEREOF, each Issuer has caused this Note to be signed man-   ually or by facsimile by a duly authorized officer.   WESCO DISTRIBUTION, INC.   By:      Name:    Title:         





 






   A-2-3         Certificate of Authentication   This is one of the 5.375% Senior Notes due 2024 referred to in the within-   mentioned Indenture.   U.S. BANK NATIONAL ASSOCIATION, as   Trustee   By:      Dated:  [               ]        





 






   A-2-4      [FORM OF REVERSE OF UNRESTRICTED NOTE]   WESCO DISTRIBUTION, INC.   5.375% SENIOR NOTE DUE 2024   1. Interest.  WESCO DISTRIBUTION, INC., a Delaware corporation (the   “Issuer”), promises to pay interest on the principal amount set forth on the face hereof at a   rate of 5.375% per annum.  Interest hereon will accrue from and including the most recent   date to which interest has been paid or, if no interest has been paid, from and including June   15, 2016 to but excluding the date on which interest is paid.  Interest shall be payable in ar-   rears on each June 15 and December 15, commencing December 15, 2016.  Interest will be   computed on the basis of a 360-day year of twelve 30-day months and actual days elapsed.    The Issuer shall pay interest on overdue principal and on overdue interest (to the full extent   permitted by law) at the rate borne by the Notes.   2. Method of Payment.  The Issuer will pay interest hereon (except de-   faulted interest) to the Persons who are registered Holders at the close of business on June 1   or December 1 preceding the Interest Payment Date (whether or not a Business Day).  Hold-   ers must surrender Notes to a Paying Agent to collect principal payments.  The Issuer will pay   principal and interest in U.S. Dollars.  Interest may be paid by check mailed to the Holder en-   titled thereto at the address indicated on the register maintained by the Registrar for the Notes.   3. Paying Agent and Registrar.  Initially, U.S. Bank National Association   (the “Trustee”) will act as a Paying Agent and Registrar.  The Issuer may change any Paying   Agent or Registrar without notice.  The Issuer or any Affiliate thereof may act as Paying   Agent or Registrar.   4. Indenture.  The Issuer issued the Notes under an Indenture dated as of   June 15, 2016 (the “Indenture”) among the Issuer, the Parent Guarantor and the Trustee.  This   is one of an issue of Notes of the Issuer issued, or to be issued, under the Indenture.  The   terms of the Notes include those stated in the Indenture and those made part of the Indenture   by reference to the Trust Indenture Act of 1939 (15 U.S. Code §§ 77aaa-77bbbb), as amended   from time to time.  The Notes are subject to all such terms, and Holders are referred to the In-   denture and such Act for a statement of them.  Capitalized and certain other terms used herein   and not otherwise defined have the meanings set forth in the Indenture.   5. Optional Redemption.   At any time prior to June 15, 2019, the Issuer may on any one or more occa-   sions redeem up to (i) 35% of the original aggregate principal amount of Notes issued under   the Indenture and (ii) all or a portion of any Additional Notes issued after the Issue Date, upon   not less than 30 nor more than 60 days’ notice, at a redemption price equal to 105.375% of the   principal amount of the Notes redeemed, plus accrued and unpaid interest, if any, to but ex-   cluding the date of redemption, with an amount of cash no greater than the cash proceeds (net     





 






   A-2-5      of underwriting discounts and commissions) of all Equity Offerings since the Issue Date; pro-   vided that:    (1) at least 65% (calculated after giving effect to any issuance of Addition-   al Notes) of the aggregate principal amount of Notes issued under the Indenture (ex-   cluding Notes held by the Issuer and its Subsidiaries) remains outstanding immediate-   ly after the occurrence of such redemption; and    (2) the redemption occurs within 180 days of the date of the closing of   such Equity Offering.   In addition, prior to June 15, 2019, the Issuer may redeem the Notes, in whole   or in part, at a redemption price equal to 100% of the principal amount thereof, plus accrued   and unpaid interest, if any, to but excluding the Make-Whole Redemption Date, plus the ap-   plicable Make-Whole Premium (a “Make-Whole Redemption”). The Issuer shall notify the   Trustee of the Make-Whole Premium by delivering to the Trustee, on or before the applicable   Redemption Date, an Officer’s Certificate showing the calculation thereof in reasonable de-   tail, and the Trustee shall have no responsibility for verifying or otherwise for such calcula-   tion.   On or after June 15, 2019, the Issuer may on any one or more occasions re-   deem all or a part of the Notes, upon not less than 30 nor more than 60 days’ notice, at the re-   demption prices (expressed as percentages of principal amount) set forth below, plus accrued   and unpaid interest, if any, on the notes redeemed, to but excluding the applicable Redemp-   tion Date, if redeemed during the twelve-month period beginning on June 15 of the years in-   dicated below:       Year   Percentage     2019 ............................................................... 104.031%   2020 ............................................................... 102.688%   2021 ............................................................... 101.344%   2022 and thereafter ........................................ 100.000%      Unless the Issuer 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 re-   demption date. The Issuer may provide in such notice that payment of the redemption price   and performance of the Issuer’s obligations with respect to such redemption may be per-   formed by another Person.    In addition, the Issuer may acquire Notes by means other than a redemption,   whether by tender offer, open market purchases, negotiated transactions or otherwise, in ac-   cordance with applicable securities laws, so long as such acquisition does not otherwise vio-   late the terms of the Indenture.     





 






   A-2-6      Notwithstanding the foregoing, the payment of accrued but unpaid interest in   connection with the redemption of Notes is subject to the rights of a Holder of Notes on a rec-   ord date for the payment of interest whose Notes are to be redeemed on or after such record   date but on or prior to the related interest payment date to receive interest on such interest   payment date.   6. Notice of Redemption.  Notices of redemption shall be mailed by first   class mail or sent electronically at least 30 but not more than 60 days before the Redemption   Date to each Holder of Notes to be redeemed at its registered address (or to the extent permit-   ted or required by applicable Depositary procedures or regulations with respect to global   Notes, sent electronically).  If any Note is to be redeemed in part only, the notice of redemp-   tion that relates to such Note shall state the portion of the principal amount thereof to be re-   deemed.  Any redemption and notice thereof may, in the Issuer’s discretion, be subject to the   satisfaction of one or more conditions precedent described in the notice relating to such re-   demption.   7. Offers To Purchase.  The Indenture provides that upon the occurrence   of a Change of Control or an Asset Sale and subject to further limitations contained therein,   the Issuer shall make an offer to purchase outstanding Notes in accordance with the proce-   dures set forth in the Indenture.   8. Denominations, Transfer, Exchange.  The Notes are in registered form   without coupons in denominations of $2,000 and integral multiples of $1,000 in excess of   $2,000.  A Holder may transfer or exchange Notes in accordance with the Indenture.  The   Registrar may require a Holder, among other things, to furnish appropriate endorsements and   transfer documents and to pay to it any taxes and fees required by law or permitted by the In-   denture.  The Registrar need not register the transfer of or exchange any Notes or portion of a   Note selected for redemption, or register the transfer of or exchange any Notes for a period of   15 days before a mailing of notice of redemption.   9. Persons Deemed Owners.  The registered Holder of this Note may be   treated as the owner of this Note for all purposes.   10. Unclaimed Money.  If money held by the Paying Agent or Trustee for   the payment of principal or interest remains unclaimed for two years, the Paying Agent or   Trustee, as applicable will pay such money back to the Issuer at its written request.  After that,   Holders entitled to the money must look to the Issuer and the Guarantors for payment as gen-   eral creditors unless an “abandoned property” law designates another Person.   11. Amendment, Supplement, Waiver, Etc.  The Issuer and the Trustee   may, without the consent of the Holders of any outstanding Notes, amend, waive or supple-   ment the Indenture or the Notes for certain specified purposes, including, among other things,   curing ambiguities, omissions, defects or inconsistencies, maintaining the qualification of the   Indenture under the TIA, providing for the assumption by a successor to the Issuer of its obli-   gations to the Holders and making any change that does not adversely affect the rights of any     





 






   A-2-7      Holder in any material respect.  Other amendments and modifications of the Indenture or the   Notes may be made by the Issuer and the Trustee with the consent of the Holders of not less   than a majority of the aggregate principal amount of the outstanding Notes, subject to certain   exceptions requiring the consent of the Holders of the particular Notes to be affected.   12. Restrictive Covenants.  The Indenture imposes certain limitations on   the ability of the Parent Guarantor and its Subsidiaries to, among other things, create liens,   make Restricted Payments, enter into Sale and Leaseback Transactions or consolidate, merge   or sell all or substantially all of the assets of the Parent Guarantor and its Subsidiaries and re-   quires the Issuer to provide reports to Holders of the Notes.  Such limitations are subject to a   number of important qualifications and exceptions.  Pursuant to Section 4.06 of the Indenture,   the Issuer must annually report to the Trustee on compliance with such limitations.   13. Successor Corporation.  When a successor corporation assumes all the   obligations of its predecessor under the Notes and the Indenture and the transaction complies   with the terms of Article Five of the Indenture, the predecessor corporation will, except as   provided in Article Five, be released from those obligations.   14. Defaults and Remedies.  Events of Default are set forth in the Inden-   ture.  If an Event of Default occurs and is continuing under the Indenture, either the Trustee,   by notice in writing to the Issuer, or the Holders of at least 25% in aggregate principal amount   of the Notes then outstanding, by notice in writing to the Issuer and the Trustee specifying the   respective Event of Default and that it is a “notice of acceleration”, may declare the principal   of and premium, if any, and accrued interest, if any, on the Notes to be due and payable, and   upon such declaration of acceleration, such principal of and premium, if any, and accrued in-   terest, if any, shall be immediately due and payable; provided, however, that, notwithstanding   the foregoing, if an Event of Default specified in Section 6.01(7) occurs with respect to the   Issuer, the principal of and premium, if any, and accrued interest, if any, on the Notes then   outstanding shall become and be immediately due and payable without any declaration or oth-   er act on the part of the Trustee or any Holder.   Notwithstanding the foregoing, if after such acceleration but before a judgment   or decree based on such acceleration is obtained by the Trustee, the Holders of a majority in   aggregate principal amount of outstanding Notes may rescind and annul such acceleration if:    (1) all Events of Default, other than nonpayment of principal, premium, if   any, or interest that has become due solely because of the acceleration, have been   cured or waived;   (2) to the extent the payment of such interest is lawful, interest on overdue   installments of interest and overdue principal, which has become due otherwise than   by such declaration of acceleration, has been paid;   (3) the Issuer has paid the Trustee its reasonable compensation and reim-   bursed the Trustee for its expenses, disbursements and advances; and      





 






   A-2-8      (4) in the event of the cure or waiver of an Event of Default of the type de-   scribed in Section 6.01(7), the Trustee shall have received an Officer’s Certificate and   an Opinion of Counsel that such Event of Default has been cured or waived.   No such rescission shall affect any subsequent Default or impair any right consequent thereto.   Holders may not enforce the Indenture or the Notes except as provided in the   Indenture.  The Trustee may require indemnity satisfactory to it before it enforces the Inden-   ture or the Notes.  Subject to certain limitations, Holders of a majority in principal amount of   the then outstanding Notes may direct the Trustee in its exercise of any trust or power.  The   Trustee may withhold from Holders notice of any continuing Default or Event of Default (ex-   cept a Default or Event of Default relating to the payment of principal of  or interest on the   Notes) if it determines that withholding notice is in their best interests.   15. Trustee Dealings with the Issuer.  The Trustee, in its individual or any   other capacity, may make loans to, accept deposits from and perform services for the Issuer or   its Affiliates, and may otherwise deal with the Issuer or its Affiliates, as if it were not Trustee.   16. No Recourse Against Others.  No director, officer, employee, incorpo-   rator, member of the Board of Directors or holder of Capital Stock of the Parent Guarantor or   of any Subsidiary, as such, shall have any liability for any obligations of the Issuer or the   Guarantors under the Notes, the Indenture or the Note Guarantees or for any claim based on,   in respect of, or by reason of, such obligations or their creation.  Each Holder of Notes by ac-   cepting a Note waives and releases all such liability.    17. Satisfaction and Discharge.  The Issuer’s and each Guarantors’ obliga-   tions pursuant to the Indenture will be discharged, except for obligations pursuant to certain   sections thereof, subject to the terms of the Indenture, upon the payment of all the Notes or   upon the irrevocable deposit with the Trustee of cash in U.S. Dollars, U.S. Government Obli-   gations or a combination thereof, in such amounts as will be sufficient to pay when due prin-   cipal of and interest on the Notes to maturity or redemption, as the case may be.   18. Guarantees.  From and after the Issue Date, the Notes will be entitled to   the benefits of certain Note Guarantees made for the benefit of the Holders.  Reference is   hereby made to the Indenture for a statement of the respective rights, limitations of rights, du-   ties and obligations thereunder of the Guarantors, the Trustee and the Holders.   19. Authentication.  This Note shall not be valid until the Trustee manually   signs the certificate of authentication on the other side of this Note.   20. Governing Law.  THIS NOTE SHALL BE GOVERNED BY AND   CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.   21. Abbreviations.  Customary abbreviations may be used in the name of a   Holder or an assignee, such as:  TEN COM (=  tenants in common), TENANT (= tenants by     





 






   A-2-9      the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in com-   mon), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).   The Issuer will furnish to any Holder upon written request and without charge   a copy of the Indenture.  Requests may be made to:   WESCO Distribution, Inc.   225 West Station Square Drive, Suite 700   Pittsburgh, Pennsylvania 15219-1122          Facsimile: (412) 222-7566   Attention: Chief Financial Officer              





 






   A-2-10         ASSIGNMENT   I or we assign and transfer this Note to:     (Insert assignee’s social security or tax I.D. number)      (Print or type name, address and zip code of assignee)   and irrevocably appoint        Agent to transfer this Note on the books of the Issuer.  The Agent may substitute another to   act for him.   Date:   Your Signature:     (Sign exactly as your name appears on   the other side of this Note)   Signature Guarantee: ______________________________   SIGNATURE GUARANTEE   Signatures must be guaranteed by an “eligible guarantor institution” meeting   the requirements of the Registrar, which requirements include membership or participation in   the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guaran-   tee program” as may be determined by the Registrar in addition to, or in substitution for,   STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.        





 






   A-2-11         OPTION OF HOLDER TO ELECT PURCHASE   If you want to elect to have all or any part of this Note purchased by the Issuer   pursuant to Section 4.08 or Section 4.09 of the Indenture, check the appropriate box:    Section 4.08    Section 4.09   If you want to have only part of the Note purchased by the Issuer pursuant to   Section 4.08 or Section 4.09 of the Indenture, state the amount you elect to have purchased:   $     ($2,000 or integral multiples of $1,000     in excess of $2,000; provided that the part not   purchased must be at least $2,000)         Date:    Your Signature: ___________________________________   (Sign exactly as your name appears on the   face of this Note)       Signature Guaranteed   SIGNATURE GUARANTEE   Signatures must be guaranteed by an “eligible guarantor institution” meeting   the requirements of the Registrar, which requirements include membership or participation in   the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guaran-   tee program” as may be determined by the Registrar in addition to, or in substitution for,   STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.        





 






   A-2-12         SCHEDULE OF EXCHANGES OF INTERESTS IN GLOBAL NOTE*   The following exchanges of a part of this Global Note for an interest in another   Global Note or for a Physical Note, or exchanges of a part of another Global Note or Physical   Note for an interest in this Global Note, have been made:      Date of Exchange   Amount of decrease in   Principal Amount    of    this Global Note   Amount of increase in   Principal Amount    of    this Global Note   Principal Amount    of this Global Note   following such de-   crease    (or increase)   Signature of authorized   signatory of Trustee          * Insert in Global Securities only.     





 






   B-1      EXHIBIT B   [FORM OF LEGEND FOR RESTRICTED SECURITIES]   Any Restricted Note authenticated and delivered hereunder shall bear a legend   (which would be in addition to any other legends required in the case of a Global Note) in   substantially the following form:   THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS   ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION   UNDER SECTION 5 OF THE UNITED STATES SECURITIES ACT OF 1933, AS   AMENDED (THE “SECURITIES ACT”), AND THE SECURITY EVIDENCED   HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN   THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION   THEREFROM. EACH PURCHASER OF THE SECURITY EVIDENCED HEREBY   IS HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE   EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES   ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE   SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE   ISSUER THAT (A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR   OTHERWISE TRANSFERRED, ONLY (1)(a) INSIDE THE UNITED STATES TO   A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED   INSTITUTIONAL BUYER (AS DEFINED IN 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 UNDER THE SECURITIES   ACT, (b) OUTSIDE THE UNITED STATES TO A FOREIGN PERSON IN A   TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR RULE 904   OF REGULATION S UNDER THE SECURITIES ACT, (c) PURSUANT TO AN   EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT   PROVIDED BY RULE 144 THEREUNDER (IF APPLICABLE) OR (d) IN   ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION   REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN   OPINION OF COUNSEL ACCEPTABLE TO THE ISSUER IF THE ISSUER SO   REQUESTS), (2) TO THE ISSUER OR (3) PURSUANT TO AN EFFECTIVE   REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH   ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED   STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE   HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO,   NOTIFY ANY PURCHASER OF THE SECURITY EVIDENCED HEREBY OF   THE RESALE RESTRICTIONS SET FORTH IN CLAUSE (A) ABOVE. NO   REPRESENTATION CAN BE MADE AS TO THE AVAILABILITY OF THE   EXEMPTION PROVIDED BY RULE 144 FOR RESALE OF THE SECURITY   EVIDENCED HEREBY.     





 






   C-1         EXHIBIT C   [FORM OF LEGEND FOR GLOBAL NOTE]   Any Global Note authenticated and delivered hereunder shall bear a legend   (which would be in addition to any other legends required in the case of a Restricted Note) in   substantially the following form:   THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE   HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A   DEPOSITARY OR A NOMINEE OF A DEPOSITARY.  THIS NOTE IS NOT   EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER   THAN THE DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED   CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS   NOTE (OTHER THAN A TRANSFER OF THIS NOTE 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) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES   DESCRIBED IN THE INDENTURE.     UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED   REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK   CORPORATION (“DTC”), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF   TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS   REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS   REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY   PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS IS REQUESTED   BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR   OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS   WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,   HAS AN INTEREST HEREIN.        





 






   D-1      EXHIBIT D   [RESERVED]     





 






   E-1      Exhibit E   [FORM OF LEGEND FOR REGULATION S NOTE]   Any Regulation S Note authenticated and delivered hereunder shall bear a leg-   end (which would be in addition to any other legends required in the case of a Restricted   Note) in substantially the following form:   BY ITS ACQUISITION HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS   NOT A U.S. PERSON, NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S.   PERSON, AND IS ACQUIRING THIS NOTE IN AN  OFFSHORE TRANSACTION IN   ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT.        





 






   F-1      Exhibit F   FORM OF CERTIFICATE OF TRANSFER   WESCO Distribution, Inc.   225 West Station Square Drive, Suite 700   Pittsburgh, Pennsylvania 15219-1122          Facsimile: (412) 222-7566   Attention: Chief Financial Officer      U.S. Bank National Association   225 West Station Square Drive, Suite 620   Pittsburgh, PA 15219    Facsimile: (412)-552-2323   Attention: Corporate Trust Services   re: WESCO Distribution, Inc.      Re: 5.375% Senior Notes due 2024   (CUSIP _____________)   (ISIN _______________)      Reference is hereby made to the Indenture, dated as of June 15, 2016 (the “Indenture”), by   and among WESCO Distribution, Inc. (the “Issuer”), the Parent Guarantor and U.S. Bank Na-   tional 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 here-   by certifies that:   [CHECK ALL THAT APPLY]   1.   Check if Transferee will take delivery of a beneficial interest in a Rule 144A   Global Note or a Physical Note pursuant to Rule 144A.  The Transfer is being effected   pursuant to and in accordance with Rule 144A under the United States Securities Act of 1933,   as amended (the “Securities Act”), and, accordingly, the Transferor hereby further certifies   that the beneficial interest or Physical Note is being transferred to a Person that the Transferor   reasonably believed and believes is purchasing the beneficial interest or Physical Note for its   own account, or for one or more accounts with respect to which such Person exercises sole     





 






   F-2      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 Physical Note will be subject   to the restrictions on transfer enumerated in the Private Placement Legend printed on the Rule   144A Global Note and/or the Physical Note and in the Indenture and the Securities Act.   2.   Check if Transferee will take delivery of a beneficial interest in a Regulation S   Global Note or a Physical 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, ac-   cordingly, 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 reasona-   bly believed and believes that the Transferee was outside the United States or (y) the transac-   tion was executed in, on or through the facilities of a designated offshore securities market   and neither such Transferor nor any Person acting on its behalf knows that the transaction was   prearranged with a buyer in the United States, (ii) no directed selling efforts have been made   in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S under the   Securities Act, (iii) the transaction is not part of a plan or scheme to evade the registration re-   quirements 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 Physical Note will be subject to the restrictions on Transfer enumerated in the Pri-   vate Placement Legend printed on the Regulation S Global Note and/or the Physical Note and   in the Indenture and the Securities Act.   3.   Check and complete if Transferee will take delivery of a beneficial interest in   the Global Note or a Physical 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   Physical 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)   such Transfer is being effected pursuant to and in accordance with   Rule 144 under the Securities Act;   or   (b)   such Transfer is being effected to the Issuer or a Subsidiary thereof;   or     





 






   F-3      (c)   such Transfer is being effected pursuant to an effective registration   statement under the Securities Act and in compliance with the prospectus delivery re-   quirements of the Securities Act;   or   (d)   such Transfer is being effected pursuant to an exemption from the   registration requirements of the Securities Act other than Rule 144A, Rule 144 or Rule   904, and the Transferor hereby further certifies that it has not engaged in any general   solicitation within the meaning of Regulation D under the Securities Act and the   Transfer complies with the transfer restrictions applicable to beneficial interests in a   Restricted Global Note or Restricted Physical Notes and the requirements of the ex-   emption claimed, which certification is supported by, if such Transfer is in respect of a   principal amount of Notes at the time of transfer of less than $250,000, an Opinion of   Counsel provided by the Transferor or the Transferee (a copy of which the Transferor   has attached to this certification), to the effect that such Transfer is in compliance with   the Securities Act.  Upon consummation of the proposed transfer in accordance with   the terms of the Indenture, the transferred beneficial interest or Physical Note will be   subject to the restrictions on transfer enumerated in the Private Placement Legend   printed on the Global Note and/or the Physical Notes and in the Indenture and the Se-   curities Act.   4.   Check if Transferee will take delivery of a beneficial interest in an Unrestrict-   ed Global Note or an Unrestricted Physical Note.   (a)   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 con-   tained 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 accord-   ance with the terms of the Indenture, the transferred beneficial interest or Physical Note will   no longer be subject to the restrictions on transfer enumerated in the Private Placement Leg-   end printed on the Restricted Global Notes, on Restricted Physical Notes and in the Indenture.   (b)   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 Securi-   ties 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 Trans-   fer in accordance with the terms of the Indenture, the transferred beneficial interest or Physi-   cal 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 Physical Notes and   in the Indenture.     





 






   F-4      (c)   Check if Transfer is pursuant to Other Exemption.  (i)  The   Transfer is being effected pursuant to and in compliance with an exemption from the registra-   tion 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 con-   tained 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 accord-   ance with the terms of the Indenture, the transferred beneficial interest or Physical Note will   not be subject to the restrictions on transfer enumerated in the Private Placement Legend   printed on the Restricted Global Notes or Restricted Physical Notes and in the Indenture.   (d)   Check if Transfer is pursuant to an Effective Registration   Statement.  (i)  The Transfer is being effected pursuant to and in compliance with an effec-   tive registration statement under the Securities Act and any applicable blue sky securities laws   of any State of the United States and in compliance with the prospectus delivery requirements   of the Securities Act 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 In-   denture, the transferred beneficial interest or Physical Note will not be subject to the re-   strictions on transfer enumerated in the Private Placement Legend printed on the Restricted   Global Notes or Restricted Physical Notes and in the Indenture.   This certificate and the statements contained herein are made for your benefit   and the benefit of the Issuer.        [Insert Name of Transferor]   By:    Name:   Title:   Dated:            





 






   F-5         ANNEX A TO CERTIFICATE OF TRANSFER   1. The Transferor owns and proposes to transfer the following:   [CHECK ONE]   (a)   a beneficial interest in a:   (i)   Rule 144A Global Note (CUSIP ______) (ISIN ______), or   (ii)   Regulation S Global Note (CUSIP ______) (ISIN ______), or   (b)   a Restricted Physical Note.   2. After the Transfer the Transferee will hold:   [CHECK ONE]   (a)    a beneficial interest in the:   (i)   Rule 144A Global Note (CUSIP _______) (ISIN ______), or   (ii)   Regulation S Global Note (CUSIP ______)(ISIN ______), or   (iii)   Unrestricted Global Note (CUSIP ______) (ISIN ______), or   (b)   a Restricted Physical Note; or   (c)   an Unrestricted Physical Note,   in accordance with the terms of the Indenture.        





 






   G-1      EXHIBIT G   FORM OF CERTIFICATE OF EXCHANGE   WESCO Distribution, Inc.   225 West Station Square Drive, Suite 700   Pittsburgh, Pennsylvania 15219-1122          Facsimile: (412) 222-7566   Attention: Chief Financial Officer      U.S. Bank National Association   225 West Station Square Drive, Suite 620   Pittsburgh, PA 15219    Facsimile: (412)-552-2323   Attention: Corporate Trust Services      re: WESCO Distribution, Inc.      Re: 5.375% Senior Notes due 2024   (CUSIP______________)   (ISIN _______________)      Reference is hereby made to the Indenture, dated as of June 15, 2016 (the “Indenture”), by   and among WESCO Distribution, Inc. (the “Issuer”), the Parent Guarantor and U.S. Bank Na-   tional 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 Physical Notes or Beneficial Interests in a Restricted   Global Note for Unrestricted Physical Notes or Beneficial Interests in an Unrestricted   Global Note   (a)  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 inter-   est 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)     





 






   G-2      such Exchange has been effected in compliance with the transfer restrictions applicable to the   Global Notes and pursuant to and in accordance with the United States 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)  Check if Exchange is from Restricted Physical Note to bene-   ficial interest in an Unrestricted Global Note.  In connection with the Owner’s Exchange of   a Restricted Physical 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 with-   out transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions   applicable to Restricted Physical Notes and pursuant to and in accordance with the Securities   Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Leg-   end are not required in order to maintain compliance with the Securities Act and (iv) the bene-   ficial interest is being acquired in compliance with any applicable blue sky securities laws of   any state of the United States.   (c)  Check if Exchange is from Restricted Physical Note to Un-   restricted Physical Note.  In connection with the Owner’s Exchange of a Restricted Physical   Note for an Unrestricted Physical Note, the Owner hereby certifies (i) the Unrestricted Physi-   cal 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 Physical   Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on trans-   fer 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 Physical Note is being   acquired in compliance with any applicable blue sky securities laws of any state of the United   States.   2. Exchange of Restricted Physical Notes for Restricted Physical Notes or Beneficial   Interests in Restricted Global Notes.   (a)  Check if Exchange is from Restricted Physical Note to bene-   ficial interest in a Restricted Global Note.  In connection with the Exchange of the Owner’s   Restricted Physical Note for a beneficial interest in the [CHECK ONE] __ Rule 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.     





 






   G-3         This certificate and the statements contained herein are made for your benefit   and the benefit of the Issuer.       [Insert Name of Owner]   By:      Name:   Title:   Dated: ________________        





 






   H-1      EXHIBIT H      [RESERVED]    





 






   I-1      EXHIBIT I   GUARANTEE   The undersigned (the “Guarantor”) hereby jointly and severally unconditionally guarantees, to   the extent set forth in the Indenture, dated as of June 15, 2016, by and among WESCO Distri-   bution, Inc. (the “Issuer”), the Parent Guarantor and U.S. Bank National Association, as trus-   tee (as amended, restated or supplemented from time to time, the “Indenture”), and subject to   the Indenture, (a) the due and punctual payment of the principal of, and premium, if any, and   interest on the Notes, when and as the same shall become due and payable, whether at maturi-   ty, by acceleration or otherwise, the due and punctual payment of interest on overdue princi-   pal of, and premium and, to the extent permitted by law, interest, and the due and punctual   performance of all other obligations of the Issuer to the Noteholders or the Trustee, all in ac-   cordance with the terms set forth in Article Ten of the Indenture, (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 ex-   tension or renewal, whether at stated maturity, by acceleration or otherwise and (c) all   amounts due to the Trustee pursuant to the Indenture.   The obligations of the Guarantor to the Noteholders and to the Trustee pursuant to this Guar-   antee and the Indenture are expressly set forth in Article Ten of the Indenture, and reference is   hereby made to the Indenture for the precise terms and limitations of this Guarantee.  Each   Holder of the Note to which this Guarantee is endorsed, by accepting such Note, agrees to and   shall be bound by such provisions.   [Signatures on Following Pages]        





 






   I-2         IN WITNESS WHEREOF, the Guarantor has caused this Guarantee to be   signed by a duly authorized officer.      WESCO INTERNATIONAL, INC. as the Parent   Guarantor   By:     Name:    Title:         





 






   J-1      EXHIBIT J   FORM OF SUPPLEMENTAL INDENTURE   TO BE DELIVERED BY SUBSEQUENT GUARANTORS   SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as   of                     , among                      (the “Guaranteeing Subsidiary”), a subsidiary of   WESCO Distribution, Inc. (or its permitted successor), a Delaware corporation (the “Issuer”),   and U.S. Bank National Association, as trustee under the Indenture referred to below (the   “Trustee”).     W I T N E S S E T H   WHEREAS, the Issuer has heretofore executed and delivered to the Trustee an   indenture, dated as of June 15, 2016 (the “Indenture”), providing for the issuance of the Issu-   er’s 5.375% Senior Notes due 2024 (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 Issu-   er’s Obligations under the Notes and the Indenture on the terms and conditions set forth here-   in (the “Note Guarantee”); and   WHEREAS, pursuant to Section 8.01 of the Indenture, the Trustee is author-   ized 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 Sub-   sidiary and the Trustee mutually covenant and agree for the equal and ratable benefit of the   Holders of the Notes as follows:   1. CAPITALIZED TERMS.  Capitalized terms used herein without defi-   nition 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 condi-   tions set forth in the Note Guarantee and in the Indenture including but not limited to Article   10 thereof.     4. NO RECOURSE AGAINST OTHERS.  No director, officer, employ-   ee, incorporator member of the Board of Directors or holder of Capital Stock of the Issuer or   of any Guarantor, as such, shall have any liability for any obligations of the Issuer or the   Guarantors under the Notes, this Supplemental Indenture or the Note Guarantees or for any   claim based on, in respect of, or by reason of, such obligations or their creation.  Each Holder   of Notes by accepting a Note waives and releases all such liability.      





 






   J-2      5. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY   AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW   YORK.     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 rep-   resent the same agreement.     7. EFFECT OF HEADINGS.  The Section headings herein are for con-   venience 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 Issuer.     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: ___________   [GUARANTEEING SUBSIDIARY]         By:      Name:    Title:    WESCO DISTRIBUTION, INC.         By:      Name:    Title:    U.S. BANK NATIONAL ASSOCIATION,   as Trustee         By:      Name:    Title: