exv4w1






EXHIBIT 4.1




      




CPM HOLDINGS, INC.




AND EACH OF THE GUARANTORS PARTY HERETO



105/8% SENIOR SECURED NOTES DUE 2014



 





INDENTURE



Dated as of August 18, 2009



 





Wilmington Trust FSB



Trustee and Collateral Agent



 







 









 








CROSS-REFERENCE TABLE*




	 	 	 
	Trust Indenture	 	 
	Act Section	 	Indenture Section
	310(a)(1)
	 	7.10
	(a)(2)
	 	7.10
	(a)(3)
	 	N.A.
	(a)(4)
	 	N.A.
	(a)(5)
	 	7.10
	(b)
	 	7.03
	(c)
	 	N.A.
	311(a)
	 	7.11
	(b)
	 	7.11
	(c)
	 	N.A.
	312(a)
	 	2.05
	(b)
	 	13.03
	(c)
	 	13.03
	313(a)
	 	7.06
	(b)(1)
	 	10.03
	(b)(2)
	 	7.06; 7.07
	(c)
	 	7.06; 13.02
	(d)
	 	7.06
	314(a)
	 	4.03;13.02; 13.05
	(b)
	 	10.02
	(c)(1)
	 	13.04
	(c)(2)
	 	13.04
	(c)(3)
	 	N.A.
	(d)
	 	10.03; 10.04; 10.05
	(e)
	 	13.05
	(f)
	 	N.A.
	315(a)
	 	7.01
	(b)
	 	7.05; 13.02
	(c)
	 	7.01
	(d)
	 	7.01
	(e)
	 	6.11
	316(a) (last sentence)
	 	2.09
	(a)(1)(A)
	 	6.05
	(a)(1)(B)
	 	6.04
	(a)(2)
	 	N.A.
	(b)
	 	6.07
	(c)
	 	2.12; 9.04(b)
	317(a)(1)
	 	6.08
	(a)(2)
	 	6.09
	(b)
	 	2.04
	318(a)
	 	13.01
	(b)
	 	N.A.
	(c)
	 	13.01








 




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




 









 










TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE 1

	DEFINITIONS AND INCORPORATION

	BY REFERENCE

	 
	 	 	 	 
	Section 1.01 Definitions
	 	 	1	 
	Section 1.02 Other Definitions
	 	 	22	 
	Section 1.03 Incorporation by Reference of Trust Indenture Act
	 	 	23	 
	Section 1.04 Rules of Construction
	 	 	23	 
	 
	 	 	 	 
	ARTICLE 2

	THE NOTES

	 
	 	 	 	 
	Section 2.01 Form and Dating
	 	 	24	 
	Section 2.02 Execution and Authentication
	 	 	25	 
	Section 2.03 Registrar and Paying Agent
	 	 	26	 
	Section 2.04 Paying Agent to Hold Money in Trust
	 	 	26	 
	Section 2.05 Holder Lists
	 	 	26	 
	Section 2.06 Transfer and Exchange
	 	 	27	 
	Section 2.07 Replacement Notes
	 	 	39	 
	Section 2.08 Outstanding Notes
	 	 	40	 
	Section 2.09 Treasury Notes
	 	 	40	 
	Section 2.10 Temporary Notes
	 	 	40	 
	Section 2.11 Cancellation
	 	 	40	 
	Section 2.12 Defaulted Interest
	 	 	41	 
	Section 2.13 CUSIP Numbers
	 	 	41	 
	 
	 	 	 	 
	ARTICLE 3

	REDEMPTION AND PREPAYMENT

	 
	 	 	 	 
	Section 3.01 Notices to Trustee
	 	 	41	 
	Section 3.02 Selection of Notes to Be Redeemed or Purchased
	 	 	42	 
	Section 3.03 Notice of Redemption
	 	 	42	 
	Section 3.04 Effect of Notice of Redemption
	 	 	43	 
	Section 3.05 Deposit of Redemption or Purchase Price
	 	 	43	 
	Section 3.06 Notes Redeemed or Purchased in Part
	 	 	43	 
	Section 3.07 Optional Redemption
	 	 	43	 
	Section 3.08 Mandatory Redemption
	 	 	44	 
	Section 3.09 Offer to Purchase by Application of Excess Proceeds
	 	 	45	 
	 
	 	 	 	 
	ARTICLE 4

	COVENANTS

	 
	 	 	 	 
	Section 4.01 Payment of Notes
	 	 	46	 
	Section 4.02 Maintenance of Office or Agency
	 	 	47	 
	Section 4.03 Reports
	 	 	47	 
	Section 4.04 Compliance Certificate
	 	 	48	 
	Section 4.05 Taxes
	 	 	49	 
	Section 4.06 Stay, Extension and Usury Laws
	 	 	49	 
	Section 4.07 Restricted Payments
	 	 	49	 
	Section 4.08 Dividend and Other Payment Restrictions Affecting Subsidiaries
	 	 	52	 
	Section 4.09 Incurrence of Indebtedness and Issuance of Preferred Stock
	 	 	54	 






 









 






	 	 	 	 	 
	 	 	Page	 
	Section 4.10 Asset Sales
	 	 	57	 
	Section 4.11 Transactions with Affiliates
	 	 	59	 
	Section 4.12 Liens
	 	 	61	 
	Section 4.13 Business Activities
	 	 	61	 
	Section 4.14 Corporate Existence
	 	 	61	 
	Section 4.15 Offer to Repurchase Upon Change of Control
	 	 	61	 
	Section 4.16 Payments for Consent
	 	 	63	 
	Section 4.17 Additional Note Guarantees
	 	 	63	 
	Section 4.18 Designation of Restricted and Unrestricted Subsidiaries
	 	 	63	 
	 
	 	 	 	 
	ARTICLE 5

	SUCCESSORS

	 
	 	 	 	 
	Section 5.01 Merger, Consolidation, or Sale of Assets
	 	 	64	 
	 
	 	 	 	 
	ARTICLE 6

	DEFAULTS AND REMEDIES

	 
	 	 	 	 
	Section 6.01 Events of Default
	 	 	65	 
	Section 6.02 Acceleration
	 	 	67	 
	Section 6.03 Other Remedies
	 	 	67	 
	Section 6.04 Waiver of Past Defaults
	 	 	67	 
	Section 6.05 Control by Majority
	 	 	68	 
	Section 6.06 Limitation on Suits
	 	 	68	 
	Section 6.07 Rights of Holders of Notes to Receive Payment
	 	 	68	 
	Section 6.08 Collection Suit by Trustee
	 	 	69	 
	Section 6.09 Trustee May File Proofs of Claim
	 	 	69	 
	Section 6.10 Priorities
	 	 	69	 
	Section 6.11 Undertaking for Costs
	 	 	70	 
	Section 6.12 Restoration of Rights and Remedies
	 	 	70	 
	 
	 	 	 	 
	ARTICLE 7

	TRUSTEE

	 
	 	 	 	 
	Section 7.01 Duties of Trustee
	 	 	70	 
	Section 7.02 Rights of Trustee
	 	 	71	 
	Section 7.03 Individual Rights of Trustee
	 	 	72	 
	Section 7.04 Trustee’s Disclaimer
	 	 	72	 
	Section 7.05 Notice of Defaults
	 	 	72	 
	Section 7.06 Reports by Trustee to Holders of the Notes
	 	 	73	 
	Section 7.07 Compensation and Indemnity
	 	 	73	 
	Section 7.08 Replacement of Trustee
	 	 	74	 
	Section 7.09 Successor Trustee by Merger, etc.
	 	 	75	 
	Section 7.10 Eligibility; Disqualification
	 	 	75	 
	Section 7.11 Preferential Collection of Claims Against Company
	 	 	75	 
	 
	 	 	 	 
	ARTICLE 8

	LEGAL DEFEASANCE AND COVENANT DEFEASANCE

	 
	 	 	 	 
	Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance
	 	 	75	 
	Section 8.02 Legal Defeasance and Discharge
	 	 	76	 
	Section 8.03 Covenant Defeasance
	 	 	76	 
	Section 8.04 Conditions to Legal or Covenant Defeasance
	 	 	77	 
	Section 8.05 Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions
	 	 	78	 






ii









 






	 	 	 	 	 
	 	 	Page	 
	Section 8.06 Repayment to Company
	 	 	78	 
	Section 8.07 Reinstatement
	 	 	78	 
	 
	 	 	 	 
	ARTICLE 9

	AMENDMENT, SUPPLEMENT AND WAIVER

	 
	 	 	 	 
	Section 9.01 Without Consent of Holders of Notes
	 	 	79	 
	Section 9.02 With Consent of Holders of Notes
	 	 	80	 
	Section 9.03 Compliance with Trust Indenture Act
	 	 	81	 
	Section 9.04 Revocation and Effect of Consents
	 	 	81	 
	Section 9.05 Notation on or Exchange of Notes
	 	 	82	 
	Section 9.06 Trustee to Sign Amendments, etc.
	 	 	82	 
	 
	 	 	 	 
	ARTICLE 10

	COLLATERAL AND SECURITY

	 
	 	 	 	 
	Section 10.01 Grant of Security Interest
	 	 	82	 
	Section 10.02 Recording and Opinions
	 	 	85	 
	Section 10.03 Release of Collateral
	 	 	85	 
	Section 10.04 Specified Releases of Collateral
	 	 	86	 
	Section 10.05 Release upon Satisfaction or Defeasance of all Outstanding Obligations
	 	 	86	 
	Section 10.06 Form and Sufficiency of Release
	 	 	87	 
	Section 10.07 Purchaser Protected
	 	 	87	 
	Section 10.08 Authorization of Actions to be Taken by the Collateral Agent Under the Collateral Documents
	 	 	87	 
	Section 10.09 Authorization of Receipt of Funds by the Trustee Under the Collateral Documents
	 	 	88	 
	Section 10.10 Action by the Collateral Agent
	 	 	88	 
	Section 10.11 Compensation and Indemnity
	 	 	88	 
	Section 10.12 Resignation; Successor Collateral Agent
	 	 	89	 
	 
	 	 	 	 
	ARTICLE 11

	NOTE GUARANTEES

	 
	 	 	 	 
	Section 11.01 Guarantee
	 	 	89	 
	Section 11.02 Limitation on Guarantor Liability
	 	 	90	 
	Section 11.03 Execution and Delivery of Note Guarantee
	 	 	91	 
	Section 11.04 Guarantors May Consolidate, etc., on Certain Terms
	 	 	91	 
	Section 11.05 Releases
	 	 	92	 
	 
	 	 	 	 
	ARTICLE 12

	SATISFACTION AND DISCHARGE

	 
	 	 	 	 
	Section 12.01 Satisfaction and Discharge
	 	 	93	 
	Section 12.02 Application of Trust Money
	 	 	94	 
	 
	 	 	 	 
	ARTICLE 13

	MISCELLANEOUS

	 
	 	 	 	 
	Section 13.01 Trust Indenture Act Controls
	 	 	94	 
	Section 13.02 Notices
	 	 	94	 
	Section 13.03 Communication by Holders of Notes with Other Holders of Notes
	 	 	96	 
	Section 13.04 Certificate and Opinion as to Conditions Precedent
	 	 	96	 
	Section 13.05 Statements Required in Certificate or Opinion
	 	 	96	 
	Section 13.06 Rules by Trustee and Agents
	 	 	97	 
	Section 13.07 No Personal Liability of Directors, Officers, Employees and Stockholders
	 	 	97	 






iii









 






	 	 	 	 	 
	 	 	Page	 
	Section 13.08 Governing Law
	 	 	97	 
	Section 13.09 No Adverse Interpretation of Other Agreements
	 	 	97	 
	Section 13.10 Successors
	 	 	97	 
	Section 13.11 Severability
	 	 	97	 
	Section 13.12 Counterpart Originals
	 	 	97	 
	Section 13.13 Table of Contents, Headings, etc.
	 	 	97	 






EXHIBITS




	 	 	 

	Exhibit A1

	 	FORM OF NOTE
	Exhibit A2

	 	FORM OF REGULATION S TEMPORARY GLOBAL NOTE
	Exhibit B

	 	FORM OF CERTIFICATE OF TRANSFER
	Exhibit C

	 	FORM OF CERTIFICATE OF EXCHANGE
	Exhibit D

	 	FORM OF CERTIFICATE OF ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
	Exhibit E

	 	FORM OF NOTATION OF GUARANTEE
	Exhibit F

	 	FORM OF SUPPLEMENTAL INDENTURE
	Exhibit G

	 	FORM OF INTERCREDITOR AGREEMENT






iv









 






     INDENTURE dated as of August 18, 2009 among CPM Holdings, Inc., a Delaware corporation, the
Guarantors and Wilmington Trust FSB, as trustee and collateral agent.



     The Company, the Guarantors, the Trustee and the Collateral Agent agree as follows for the
benefit of each other and for the equal and ratable benefit of the Holders of the 105/8% Senior
Secured Notes due 2014 (the “Notes”):



ARTICLE 1

DEFINITIONS AND INCORPORATION

BY REFERENCE




Section 1.01 Definitions.



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



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




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




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



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



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



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



     “Applicable Premium” means, with respect to any Note on any applicable redemption date, the
greater of (i) 1.0% of the then outstanding principal amount of the Note and (ii) the excess of:




     (1) the present value at such redemption date of the sum of (i) the redemption price of
such Note at September 1, 2012, such redemption price being set forth in the table appearing
in Section 3.07(b) hereof plus (ii) all required interest payments due on the Note
through September 1, 2012 (excluding accrued but unpaid interest), such present value to be
computed using a discount rate equal to the Treasury Rate as of such redemption date plus 50
basis points; over



1









 






     (2) the then outstanding principal amount of the Note.



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



     “Asset Sale” means:




     (1) the sale, lease, conveyance or other disposition of any assets or rights by the
Company or any of the Company’s Restricted Subsidiaries; provided that the sale, lease,
conveyance or other disposition of all or substantially all of the assets of the Company and
its Restricted Subsidiaries taken as a whole will be governed by Sections 4.15 and
5.01 hereof and not by Section 4.10 hereof; and




     (2) the issuance of Equity Interests by any of the Company’s Restricted Subsidiaries or
the sale by the Company or any of the Company’s Restricted Subsidiaries of Equity Interests
in any of the Company’s Subsidiaries (in each case, other than directors’ qualifying shares
or shares required by applicable law to be held by a Person other than the Company or any of
its Restricted Subsidiaries).


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





     (1) any single transaction or series of related transactions that involves assets
having a Fair Market Value of less than $1.0 million;




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




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




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




     (5) licenses and sublicenses by the Company or any of its Restricted Subsidiaries of
intellectual property in the ordinary course of business;




     (6) any surrender or waiver of contract rights or settlement, release, recovery on or
surrender of contract, tort or other claims in the ordinary course of business;




     (7) the granting of Liens not prohibited by Section 4.12 hereof;




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




     (9) a Restricted Payment that does not violate Section 4.07 hereof or a
Permitted Investment.



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



2









 





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



     “Board of Directors” means:




     (1) with respect to a corporation, the board of directors of the corporation or any
committee thereof duly authorized to act on behalf of such board;




     (2) with respect to a partnership, the Board of Directors of the general partner of the
partnership;




     (3) with respect to a limited liability company, the managing member or members or any
controlling committee of managing members thereof; and




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



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



     “Capital Lease Obligation” means, at the time any determination is to be made, the amount of
the liability in respect of a capital lease that would at that time be required to be capitalized
on a balance sheet prepared in accordance with GAAP, and the Stated Maturity thereof shall be the
date of the last payment of rent or any other amount due under such lease prior to the first date
upon which such lease may be prepaid by the lessee without payment of a penalty.



     “Capital Stock” means:




     (1) in the case of a corporation, corporate stock;




     (2) in the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate stock;




     (3) in the case of a partnership or limited liability company, partnership interests
(whether general or limited) or membership interests; and




     (4) any other interest or participation that confers on a Person the right to receive a
share of the profits and losses of, or distributions of assets of, the issuing Person, but
excluding from all of the foregoing (x) any debt securities convertible into Capital Stock,
whether or not such debt securities include any right of participation with Capital Stock
and (y) any compensation agreement, plan or arrangement conferred upon employees of the
Company or any Restricted Subsidiary of the Company to the extent such agreement, plan or
arrangement provides for payments tied to measures of operating performance.



     “Cash Equivalents” means:




     (1) United States dollars;



3









 






     (2) securities issued or directly and fully guaranteed or insured by the United States
government or any agency or instrumentality of the United States government (provided that
the full faith and credit of the United States is pledged in support of those securities)
having maturities of not more than one year from the date of acquisition;




     (3) certificates of deposit and eurodollar time deposits with maturities of one year or
less from the date of acquisition, bankers’ acceptances with maturities not exceeding one
year and overnight bank deposits, in each case, with any lender party to the New Senior
Secured Revolving Credit Facility or with any domestic commercial bank having capital and
surplus in excess of $500.0 million;




     (4) fully collateralized repurchase obligations with a term of not more than 90 days
for underlying securities of the types described in clauses (2) and (3) of this definition
entered into with any financial institution meeting the qualifications specified in clause
(3) of this definition;




     (5) commercial paper having one of the two highest ratings obtainable from Moody’s
Investors Service, Inc. or Standard & Poor’s Rating Services and, in each case, maturing
within 270 days after the date of acquisition;




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




     (7) other short-term investments utilized by Foreign Subsidiaries in accordance with
normal investment practices for cash management in investments of a type analogous to the
foregoing.



     “Cash Management Obligations” means, with respect to any Person, all obligations of such
Person in respect of overdrafts and liabilities owed to any other Person that arise from treasury,
depositary or cash management services, including in connection with any automated clearing house
transfers of funds, or any similar transactions.



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




     (1) the direct or indirect sale, lease, transfer, conveyance or other disposition
(other than by way of merger or consolidation), in one or a series of related transactions,
of all or substantially all of the properties or assets of the Company and its Subsidiaries
taken as a whole to any Person (including any “person” (as that term is used in Section
13(d)(3) of the Exchange Act)) other than the Principal;




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




     (3) the consummation of any transaction (including, without limitation, any merger or
consolidation), the result of which is that the Principal ceases to collectively be the
Beneficial Owner, directly or indirectly, of more than 50% of the Voting Stock of the
Company, measured by voting power rather than number of shares; or




     (4) the first day on which a majority of the members of the Board of Directors of the
Company are not Continuing Directors.



     “Clearstream” means Clearstream Banking, S.A.



4









 





     “Collateral” means the collateral securing the Second Priority Claims pursuant to the Second
Priority Pledge and Security Agreement.



     “Collateral Agent” means Wilmington Trust FSB, in its capacity as Collateral Agent under this
Indenture and the Collateral Documents, together with its successors in such capacity.



     “Collateral Documents” means the Second Priority Pledge and Security Agreement, the Second
Priority Mortgages and any other agreement, document or instrument pursuant to which a Lien is
granted by the Company or Guarantor to secure any Second Priority Claims or under which rights or
remedies with respect to any such Lien are governed.



     “Company” means CPM Holdings, Inc., and any and all successors thereto.



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




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




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




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




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




     (5) fees, expenses and other charges relating to the issuance of the Notes and entering
into the New Senior Secured Revolving Credit Facility; minus




     (6) non-cash items increasing such Consolidated Net Income for such period, other than
(x) the accrual of revenue in the ordinary course of business and (y) any items that
represent the reversal in such period of any accrual of, or cash reserve for, anticipated
charges made in any prior period, which accrual or reserve was recorded after the date of
this Indenture,


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




     “Consolidated Net Income” means, with respect to any specified Person for any period, the
aggregate of the net income (loss) of such Person and its Restricted Subsidiaries for such period,
on a consolidated basis (excluding the net income (loss) of any Unrestricted Subsidiary of such
Person),



5









 




determined in accordance with GAAP and without any reduction in respect of preferred stock
dividends; provided that:





     (1) all extraordinary gains and losses and all gains and losses realized in connection
with any Asset Sale or the disposition of securities or the early extinguishment of
Indebtedness, together with any related provision for taxes on any such gain, will be
excluded;




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




     (3) the net income (and net loss) of any Restricted Subsidiary of the specified Person
will be excluded to the extent that the declaration or payment of dividends or similar
distributions by that Restricted Subsidiary of that net income is not at the date of
determination permitted without any prior governmental approval (that has not been obtained)
or, directly or indirectly, by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation applicable to
that Restricted Subsidiary or its stockholders, except to the extent that any dividend or
distribution is actually made in cash and not otherwise included herein; and




     (4) the cumulative effect of a change in accounting principles will be excluded.



     “continuing” means, with respect to any Default or Event of Default, that such Default or
Event of Default has not been cured or waived.



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




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




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



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



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



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



6









 





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



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



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



     “Discharge of First Priority Claims” means the payment in full in cash of (a) the principal of
and interest and premium, if any, on all Indebtedness outstanding under the First Priority
Collateral Documents or, with respect to letters of credit outstanding thereunder, delivery of cash
collateral or backstop letters of credit in respect thereof in compliance with the applicable First
Priority Collateral Documents, in each case after or concurrently with termination of all
commitments to extend credit thereunder and (b) any other First Priority Claims that are due and
payable or otherwise accrued and owing at or prior to the time such principal and interest are
paid.



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



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



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



     “Equity Offering” means a sale either (1) of Equity Interests of the Company (other than
Disqualified Stock and other than to a Subsidiary of the Company) by the Company or (2) of Equity
Interests of a direct or indirect parent entity of the Company (other than to the Company or a
Subsidiary of the Company) to the extent that the net proceeds therefrom are contributed to the
common equity capital of the Company.



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



7









 





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



     “Exchange Notes” means the Notes issued in the Exchange Offer pursuant to Section
2.06(f) hereof.



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



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



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



     “Fair Market Value” means the value that would be paid by a willing buyer to an unaffiliated
willing seller in a transaction not involving distress or necessity of either party, determined in
good faith by the Board of Directors of the Company; provided, however, that, except in the case of
determining the Fair Market Value of assets in connection with an Asset Sale not involving the sale
of Assets to an Affiliate, the Board of Directors’ determination must be based upon an opinion or
appraisal issued by an accounting, appraisal or investment banking firm of national standing if the
Fair Market Value exceeds $10.0 million.



     “First Priority Agent” means the administrative agent for the lenders under the New Senior
Secured Revolving Credit Facility, together with its successors and permitted assigns in such
capacity.



     “First Priority Cash Management Obligations” means any Cash Management Obligations secured by
any collateral under the First Priority Collateral Documents.



     “First Priority Claims” means (a) Indebtedness under the New Senior Secured Revolving Credit
Facility permitted pursuant to clause (1) or (16) of the definition of the term “Permitted Debt,”
(b) First Priority Cash Management Obligations and First Priority Hedging Obligations, and (c) all
other Obligations of the Company and the Guarantors under the documents relating to Indebtedness
described in clauses (a) and (b) of this definition.



     “First Priority Collateral” means the collateral that secures the Obligations under the New
Senior Secured Revolving Credit Facility, except to the extent that any such collateral constitute
proceeds of the Collateral securing the Second Priority Claims pursuant to the terms of the
Intercreditor Agreement.



     “First Priority Collateral Documents” means the First Priority Pledge and Security Agreement,
the First Priority Mortgages and any other agreement, document or instrument pursuant to which a
Lien is granted securing any First Priority Claims or under which rights or remedies with respect
to such Liens are governed.



     “First Priority Hedging Obligations” means any Hedging Obligations that are permitted to be
incurred under clause (8) of the definition of the term “Permitted Debt” and that are secured by
any First Priority Collateral under the First Priority Collateral Documents.



     “First Priority Mortgages” means a collective reference to each mortgage, deed of trust, deed
to secure debt and any other document or instrument under which any Lien on real property owned by
either the Company or any Guarantor is granted to secure any First Priority Claims or under which
rights or remedies with respect to any such Liens are governed.



8









 





     “First Priority Pledge and Security Agreement” means the Pledge and Security Agreement, to be
entered into after the date of this Indenture, among the Company and certain of its Subsidiaries in
favor of the First Priority Agent, as amended or supplemented from time to time in accordance with
its terms.



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


In addition, for purposes of calculating the Fixed Charge Coverage Ratio:





     (1) acquisitions that have been made by the specified Person or any of its Restricted
Subsidiaries, including through mergers or consolidations, or any Person or any of its
Restricted Subsidiaries acquired by the specified Person or any of its Restricted
Subsidiaries, and including all related financing transactions and including increases in
ownership of Restricted Subsidiaries, during the four-quarter reference period or subsequent
to such reference period and on or prior to the Calculation Date, or that are to be made on
the Calculation Date, will be given pro forma effect (in accordance with Regulation S-X
under the Securities Act) as if they had occurred on the first day of the four-quarter
reference period;




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




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




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




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




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



9









 





     “Fixed Charges” means, with respect to any specified Person for any period, the sum, without
duplication, of (in each case, determined on a consolidated basis in accordance with GAAP):




     (1) the consolidated interest expense of such Person and its Restricted Subsidiaries
for such period, whether paid or accrued, including, without limitation, the interest
component of any deferred payment obligations, the interest component of all payments
associated with Capital Lease Obligations, commissions, discounts and other fees and charges
incurred in respect of letter of credit or bankers’ acceptance financings, and net of the
effect of all payments made or received pursuant to Hedging Obligations in respect of
interest rates, but excluding amortization of debt issuance costs, original issue discount,
and non-cash interest payments relating to Indebtedness incurred on or prior to the date of
this Indenture (or incurred in respect of the New Senior Secured Revolving Credit Facility
on or after the date of this Indenture), and interest rate swap breakage costs incurred in
connection with the issuance of the Notes or entering into the New Senior Secured Revolving
Credit Facility; plus




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




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




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



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



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



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



     “Global Notes” means, individually and collectively, each of the Restricted Global Notes and
the Unrestricted Global Notes deposited with or on behalf of and registered in the name of the
Depository or its nominee, substantially in the form of Exhibit A1 hereto and that bears
the Global Note Legend and that has the “Schedule of Exchanges of Interests in the Global Note”
attached thereto, issued in accordance with Section 2.01, 2.06(b)(3),
2.06(b)(4), 2.06(d)(2) or 2.06(f) hereof.



     “Government Securities” means direct obligations of, or obligations guaranteed by, the United
States of America, and the payment for which the United States pledges its full faith and credit.



10









 





     “Guarantee” means a guarantee other than by endorsement of negotiable instruments for
collection in the ordinary course of business, direct or indirect, in any manner including, without
limitation, by way of a pledge of assets (other than the pledge of stock of any Unrestricted
Subsidiary) or through letters of credit or reimbursement agreements in respect thereof, of all or
any part of any Indebtedness (whether arising by virtue of partnership arrangements, or by
agreements to keep-well, to purchase assets, goods, securities or services, to take or pay or to
maintain financial statement conditions or otherwise).



     “Guarantors” means each of:




     (1) CPM Acquisition Corp.;




     (2) Crown Acquisition Corp.;




     (3) CPM Wolverine Proctor, LLC;




     (4) CPM SA LLC;




     (5) Crown Iron Works Company;




     (6) Crown Biofuels, LLC; and




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


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




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




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




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




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



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



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



11









 





     “Immaterial Subsidiary” means, as of any date, any Restricted Subsidiary whose total assets,
as of that date, are less than $250,000 and whose total revenues for the most recent 12-month
period do not exceed $250,000; provided that a Restricted Subsidiary will not be considered to be
an Immaterial Subsidiary if it, directly or indirectly, guarantees or otherwise provides direct
credit support for any Indebtedness of the Company or any of its Subsidiaries.



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




     (1) in respect of borrowed money;




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




     (3) in respect of banker’s acceptances;




     (4) representing Capital Lease Obligations;




     (5) representing the balance deferred and unpaid of the purchase price of any property
or services (excluding trade accounts payable and accrued obligations incurred in the
ordinary course of business, which accounts payable and accrued obligations are not more
than 90 days past due) due more than six months after such property is acquired or such
services are completed; or




     (6) representing any Hedging Obligations,


if and to the extent any of the preceding items (other than letters of credit and Hedging
Obligations) would appear as a liability upon a balance sheet of the specified Person prepared in
accordance with GAAP. In addition, the term “Indebtedness” includes all Indebtedness of others
secured by a Lien on any asset of the specified Person (whether or not such Indebtedness is assumed
by the specified Person) and, to the extent not otherwise included, the Guarantee by the specified
Person of any Indebtedness of any other Person. Indebtedness shall be calculated without giving
effect to the effects of Statement of Financial Accounting Standards No. 133 and related
interpretations to the extent such effects would otherwise increase or decrease an amount of
Indebtedness for any purpose under this Indenture as a result of accounting for any embedded
derivatives created by the terms of such Indebtedness.




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



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



     “Initial Notes” means the first $200,000,000 aggregate principal amount of Notes issued under
this Indenture on the date hereof.



     “Initial Purchasers” means, with respect to the Initial Notes, Jefferies & Company, Inc. and
BMO Capital Markets Corp.



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



12









 





     “Intercreditor Agreement” means the Intercreditor Agreement by and among the Company, the
Guarantors, the First Priority Agent and the Collateral Agent, substantially in the form attached
hereto as Exhibit G, which may be entered into on or after the date of this Indenture in accordance
with Section 10.01(j) hereof (as the same may be amended, modified, superseded, reinstated,
succeeded or replaced from time to time in accordance with its terms and the terms of this
Indenture).



     “Investments” means with respect to any Person, all direct or indirect investments by such
Person in other Persons (including Affiliates) in the forms of loans (including Guarantees or other
obligations but excluding extensions of trade credit and accounts receivables made in the ordinary
course of business), advances or capital contributions (excluding commission, travel and similar
advances to officers and employees made in the ordinary course of business), purchases or other
acquisitions for consideration of Indebtedness, Equity Interests or other securities, together with
all items that are or would be classified as investments on a balance sheet prepared in accordance
with GAAP. If the Company or any Restricted Subsidiary of the Company sells or otherwise disposes
of any Equity Interests of any direct or indirect Restricted Subsidiary of the Company such that,
after giving effect to any such sale or disposition, such Person is no longer a Restricted
Subsidiary of the Company, the Company will be deemed to have made an Investment on the date of any
such sale or disposition equal to the Fair Market Value of the Company’s Investments in such
Restricted Subsidiary that were not sold or disposed of in an amount determined as provided in
Section 4.07(c) hereof. The acquisition by the Company or any Restricted Subsidiary of the
Company of a Person that holds an Investment in a third Person will be deemed to be an Investment
by the Company or such Restricted Subsidiary in such third Person in an amount equal to the Fair
Market Value of the Investments held by the acquired Person in such third Person in an amount
determined as provided in Section 4.07(c) hereof. Except as otherwise provided in this
Indenture, the amount of an Investment will be determined at the time the Investment is made and
without giving effect to subsequent changes in value.



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



     “Letter of Transmittal” means the letter of transmittal to be prepared by the Company and sent
to all Holders of the Notes for use by such Holders in connection with the Exchange Offer.



     “Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest
or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise
perfected under applicable law, including any conditional sale or other title retention agreement,
any lease in the nature thereof, any option or other agreement to sell or give a security interest
in and any filing of or agreement to give any financing statement under the Uniform Commercial Code
(or equivalent statutes) of any jurisdiction.



     “Management Agreement” means that certain Amended and Restated Management and Advisory
Services Agreement, dated as of the date of this Indenture, among the Company, GGEP Management,
L.L.C., GGEP Management (Bermuda) Ltd. and Gilbert Global Equity Capital, LLC.



     “Net Proceeds” means the aggregate cash proceeds received by the Company or any of its
Restricted Subsidiaries in respect of any Asset Sale (including, without limitation, any cash
received upon the sale or other disposition of any non-cash consideration received in any Asset
Sale), net of (i) the direct costs relating to such Asset Sale, including, without limitation,
legal, accounting and investment banking fees, and sales commissions, and any relocation expenses
incurred as a result of the Asset Sale, (ii) taxes



13









 




paid or payable as a result of the Asset Sale, in each case, after taking into account any
available tax credits or deductions and any tax sharing arrangements, (iii) amounts required to be
applied to the repayment of Indebtedness, other than Indebtedness under a Credit Facility, secured
by a Lien on the asset or assets that were the subject of such Asset Sale and (iv) any reserve for
adjustment or indemnification obligations in respect of the sale price of such asset or assets
established in accordance with GAAP and any amounts placed in an escrow established for purposes of
any such adjustment or indemnification obligations.




     “New Senior Secured Revolving Credit Facility” means that certain Credit Facility to be
entered into on or after the date of this Indenture by and among the Company, certain Subsidiaries
of the Company, and the agents and lenders from time to time named therein, providing for revolving
credit borrowings, including any related notes, Guarantees, collateral documents, instruments and
agreements executed in connection therewith, and, in each case, as amended, restated, modified,
renewed, refunded, replaced in any manner (whether upon or after termination or otherwise) or
refinanced (including by means of sales of debt securities to institutional investors) in whole or
in part from time to time.



     “Non-Recourse Debt” means Indebtedness:




     (1) as to which neither the Company nor any of its Restricted Subsidiaries (a) provides
credit support of any kind (including any undertaking, agreement or instrument that would
constitute Indebtedness) other than a pledge of the Equity Interests of Unrestricted
Subsidiaries or (b) is directly or indirectly liable as a guarantor or otherwise, other than
by virtue of a pledge of the Equity Interests of Unrestricted Subsidiaries; and




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



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



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



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



     “Obligations” means any principal, interest, penalties, fees, indemnifications,
reimbursements, damages and other liabilities payable under the documentation governing any
Indebtedness.



     “Offering Memorandum” means the Company’s offering memorandum, dated August 11, 2009, relating
to the initial offering of the Notes.



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



14









 





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



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



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



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



     “Permitted Business” means any business that is the same as, or reasonably related, ancillary
or complementary to, any of the businesses in which the Company and its Restricted Subsidiaries are
engaged on the date of this Indenture and any business activities reasonably incidental thereto.



     “Permitted Investments” means:




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




     (2) any Investment in Cash Equivalents;




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




          (a) such Person becomes a Restricted Subsidiary of the Company; or




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




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




     (5) any Investment the payment for which consists solely of Equity Interests (other
than Disqualified Stock) of the Company;




     (6) any Investments received in compromise or resolution of (a) obligations of trade
creditors or customers that were incurred in the ordinary course of business of the Company
or any of its Restricted Subsidiaries, including pursuant to any plan of reorganization,
workout or similar arrangement upon the bankruptcy, foreclosure or insolvency of any trade
creditor or customer; or (b) litigation, arbitration or other disputes;




     (7) Investments represented by Hedging Obligations;



15









 






     (8) loans or advances to officers, directors, consultants or employees made in the
ordinary course of business of the Company or any Restricted Subsidiary of the Company in an
aggregate principal amount not to exceed $1.0 million at any one time outstanding;




     (9) repurchases of the Notes;




     (10) any Investment existing on the date of this Indenture and any Investment
consisting of an extension, modification or renewal of any Investment existing on the date
of this Indenture;




     (11) Investments consisting of prepaid expenses, negotiable instruments held for
collection and lease, utility and workers’ compensation, performance and other similar
deposits made in the ordinary course of business;




     (12) other Investments in an aggregate amount, taken together with all other Investment
made pursuant to this clause (12) that are at any one time outstanding, not to exceed $10.0
million.



     “Permitted Liens” means:




     (1) Liens to secure Indebtedness permitted by Section 4.09(b)(1) hereof;
provided that the lender of any such indebtedness has become a party to the Intercreditor
Agreement;




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




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




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




     (5) Liens to secure the performance of statutory obligations, insurance, surety or
appeal bonds, workers compensation obligations, performance bonds or other obligations of a
like nature incurred in the ordinary course of business (including Liens to secure letters
of credit issued to assure payment of such obligations);




     (6) Liens to secure Indebtedness (including Capital Lease Obligations) permitted by
Section 4.09(b)(4) hereof covering only the assets acquired with or financed by such
Indebtedness;




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



16









 






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




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




     (10) survey exceptions, easements or reservations of, or rights of others for,
licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other
similar purposes, or zoning or other restrictions as to the use of real property that were
not incurred in connection with Indebtedness and that do not in the aggregate materially
adversely affect the value of said properties or materially impair their use in the
operation of the business of such Person;




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




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




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




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




     (13) Liens on insurance policies and proceeds thereof, or other deposits, to secure
insurance premium financings;




     (14) any interest or title of a lessor, sublessor or licensor entered into in the
ordinary course of business and covering only the assets so leased or licensed, as the case
may be, and including any Liens arising from the filing of Uniform Commercial Code financing
statements as a precautionary measure in connection with operating leases;




     (15) bankers’ Liens, rights of setoff, Liens arising out of judgments or awards not
constituting an Event of Default and notices of lis pendens and associated rights related to
litigation being contested in good faith by appropriate proceedings and for which adequate
reserves have been made;




     (16) Liens on cash, Cash Equivalents or other property arising in connection with the
defeasance, discharge or redemption of Indebtedness;




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



17









 






     (18) grants of software and other technology licenses in the ordinary course of
business;




     (19) Liens arising out of conditional sale, title retention, consignment or similar
arrangements for the sale of goods entered into in the ordinary course of business;




     (20) Liens on assets of Foreign Subsidiaries securing Indebtedness of Foreign
Subsidiaries permitted to be incurred under Section 4.09 hereof;




     (21) Liens in favor of customs and revenue authorities arising as a matter of law to
secure payment of customer duties in connection with the importation of goods;




     (22) Liens on a pledge of the Capital Stock of an Unrestricted Subsidiary securing any
Indebtedness of such Unrestricted Subsidiary;




     (23) Liens against assets subject to an Asset Sale permitted under the terms of this
Indenture to the extent the Company or the applicable Restricted Subsidiary has entered into
a binding commitment to dispose of such assets and such Liens do not apply to any assets of
the Company or the applicable Restricted Subsidiary other than the assets to be disposed;
and




     (24) Liens with respect to obligations that do not exceed $2.5 million at any one time
outstanding.



     “Permitted Refinancing Indebtedness” means any Indebtedness of the Company or any of its
Restricted Subsidiaries issued in exchange for, or the net proceeds of which are used to renew,
refund, refinance, replace, defease or discharge other Indebtedness of the Company or any of its
Restricted Subsidiaries (other than intercompany Indebtedness); provided that:




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




     (2) such Permitted Refinancing Indebtedness has a final maturity date later than the
earlier of (a) the final maturity date of the Indebtedness being renewed, refunded,
refinanced, replaced, defeased or discharged, or (b) 90 days after the final maturity date
of the Notes, and has a Weighted Average Life to Maturity that is equal to or greater than
the Weighted Average Life to Maturity of, the Indebtedness being renewed, refunded,
refinanced, replaced, defeased or discharged;




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




     (4) such Indebtedness is incurred either (i) if the obligor on the Indebtedness being
renewed, refunded, refinanced, replaced, defeased or discharged is the Company or a
Guarantor, by the Company or any Guarantor or (ii) if the obligor on the Indebtedness being
renewed,



18









 







refunded, replaced, defeased or discharged is a Restricted Subsidiary that is not a
Guarantor, by any Restricted Subsidiary of the Company that is not a Guarantor.



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



     “Principal” means, collectively, Gilbert Global Equity Partners, L.P. and its Affiliates.



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



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



     “Registration Rights Agreement” means the Registration Rights Agreement, dated as of August
18, 2009, among the Company, the Guarantors and Jefferies & Company, Inc., as representative of the
Initial Purchasers, as such agreement may be amended, modified or supplemented from time to time
and, with respect to any Additional Notes, one or more registration rights agreements among the
Company, the Guarantors and the other parties thereto, as such agreement(s) may be amended,
modified or supplemented from time to time, relating to rights given by the Company to the
purchasers of Additional Notes to register such Additional Notes under the Securities Act.



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



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



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



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



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



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



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



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



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



19









 





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



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



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



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



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



     “SEC” means the Securities and Exchange Commission.



     “Second Priority Claims” means all Obligations in respect of the Notes or arising under the
Second Priority Documents or any of them. Second Priority Claims shall include all interest accrued
(or which would, absent the commencement of an insolvency or liquidation proceeding, accrue) after
the commencement of an insolvency or liquidation proceeding in accordance with and at the rate
specified in the relevant Second Priority Document whether or not the claim for such interest is
allowed as a claim in such insolvency or liquidation proceeding. Notwithstanding anything to the
contrary contained in this definition, any Obligation under a Second Priority Document (including
any Hedging Obligations) shall constitute a “Second Priority Claim” if the Collateral Agent or the
relevant Second Priority Obligee or the Second Priority Obligees under such Second Priority
Document shall have received a written representation from the Company in or in connection with
such Second Priority Document that such Obligation constitutes a Second Priority Claim (whether or
not such Obligation is at any time determined not to have been permitted to be incurred under the
New Senior Secured Revolving Credit Facility).



     “Second Priority Documents” means (a) this Indenture, the Notes, the Note Guarantees, the
Collateral Documents and each of the other agreements, documents or instruments evidencing or
governing any Second Priority Claims and (b) any other related documents or instruments executed
and delivered pursuant to any Second Priority Document described in clause (a) above evidencing or
governing any Obligations thereunder.



     “Second Priority Mortgages” means a collective reference to each mortgage, deed of trust, deed
to secure debt and any other document or instrument under which any Lien on real property owned by
the Company or any Guarantor is granted to secure any Second Priority Claims or under which rights
or remedies with respect to any such Liens are governed.



     “Second Priority Obligees” means the Persons holding Second Priority Claims, including the
Holders, the Trustee and the Collateral Agent.



     “Second Priority Pledge and Security Agreement” means the Pledge and Security Agreement, to be
dated as of the date of this Indenture, among the Company and the Guarantors in favor of the
Collateral Agent, as amended or supplemented from time to time in accordance with its terms.



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



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



20









 





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



     “Special Interest” has the meaning assigned to that term pursuant to the Registration Rights
Agreement.



     “Sponsor” means the Principal and any successor holders of a majority of the Voting Stock of
the Company.



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



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



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



     (2) any partnership or limited liability company of which (a) more than 50% of the capital
accounts, distribution rights, total equity and voting interests or general and limited partnership
interests, as applicable, are owned or controlled, directly or indirectly, by such Person or one or
more of the other Subsidiaries of that Person or a combination thereof, whether in the form of
membership, general, special or limited partnership interests or otherwise, and (b) such Person or
any Subsidiary of such Person is a controlling general partner or otherwise controls such entity.



     “TIA” means the Trust Indenture Act of 1939, as amended.



     “Treasury Rate” means as of the applicable redemption date, the yield to maturity as of such
redemption date of constant maturity United States Treasury securities (as compiled and published
in the most recent Federal Reserve Statistical Release H.15 (519) that has become publicly
available at least two Business Days prior to such 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 such redemption date to September 1, 2012; provided, however, that if no published
maturity exactly corresponds with such date, then the Treasury Rate shall be interpolated or
extrapolated on a straight-line basis from the arithmetic mean of the yields for the next shortest
and next longest published maturities; provided further, however, that if the period from such
redemption date to September 1, 2012, is less than one year, the weekly average yield on actually
traded United States Treasury securities adjusted to a constant maturity of one year will be used.



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



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





21









 





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



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




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




     (2) except as permitted by Section 4.11 hereof is not party to any agreement,
contract, arrangement or understanding with the Company or any Restricted Subsidiary of the
Company unless the terms of any such agreement, contract, arrangement or understanding are
no less favorable to the Company or such Restricted Subsidiary than those that might be
obtained at the time from Persons who are not Affiliates of the Company;




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




     (4) has not guaranteed or otherwise directly provided credit support for any
Indebtedness of the Company or any of its Restricted Subsidiaries.



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



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



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




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




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


Section 1.02 Other Definitions.




	 	 	 	 	 
	 	 	Defined in
	Term	 	Section
	“Action”
	 	 	10.10	 
	“Affiliate Transaction”
	 	 	4.11	 
	“Asset Sale Offer”
	 	 	4.10	 
	“Authentication Order”
	 	 	2.02	 
	“Change of Control Offer”
	 	 	4.15	 
	“Change of Control Payment”
	 	 	4.15	 
	“Change of Control Payment Date”
	 	 	4.15	 






22









 






	 	 	 	 	 
	 	 	Defined in
	Term	 	Section
	“Covenant Defeasance”
	 	 	8.03	 
	“DTC”
	 	 	2.03	 
	“Event of Default”
	 	 	6.01	 
	“Excess Proceeds”
	 	 	4.10	 
	“incur”
	 	 	4.09	 
	“Intercreditor Order”
	 	 	10.01	 
	“Legal Defeasance”
	 	 	8.02	 
	“Offer Period”
	 	 	3.09	 
	“Paying Agent”
	 	 	2.03	 
	“Permitted Debt”
	 	 	4.09	 
	“Payment Default”
	 	 	6.01	 
	“Purchase Date”
	 	 	3.09	 
	“Registrar”
	 	 	2.03	 
	“Restricted Payments”
	 	 	4.07	 





Section 1.03 Incorporation by Reference of Trust Indenture Act.




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



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



     “indenture securities” means the Notes;



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



     “indenture to be qualified” means this Indenture;



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



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



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


Section 1.04 Rules of Construction.




     Unless the context otherwise requires:




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




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




     (3) “or” is not exclusive;




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



23









 






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




     (6) provisions apply to successive events and transactions;




     (7) all references to the “Intercreditor Agreement” herein and in any other Second
Priority Document, other than such references related to the authorization of, or initial
entry into, the Intercreditor Agreement (including as set forth in Section 10.01(j)
hereof), shall mean the Intercreditor Agreement if then in effect; and




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



ARTICLE 2

THE NOTES



Section 2.01 Form and Dating.




     (a) General. The Notes and the Trustee’s certificate of authentication will be substantially
in the form of Exhibits A1 and A2 hereto; provided, that the form of the Exchange
Notes shall include such variations as are permitted or required by the Registration Rights
Agreement (as evidenced by the Company’s execution of such Exchange Notes). The Notes may have
notations, legends or endorsements required by law, stock exchange rule or usage. Each Note will
be dated the date of its authentication. The Notes shall be in denominations of $2,000 and
integral multiples of $1,000 in excess thereof. Notwithstanding any provision of this Indenture or
the Notes (a) any pro rata redemptions or repurchases of the Notes by the Company pursuant to this
Indenture shall be made in a manner that preserves the authorized denominations of the Notes, and
(b) in the case of Global Notes, the selection of Notes to be redeemed or repurchased will be based
on a method that most nearly approximates pro rata selection that the Trustee deems fair and
appropriate, including by lot or other method.



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



     (b) Global Notes. Notes issued in global form will be substantially in the form of
Exhibits A1 or A2 hereto (including the Global Note Legend thereon and the “Schedule of
Exchanges of Interests in the Global Note” attached thereto). Notes issued in definitive form will
be substantially in the form of Exhibit A1 hereto (but without the Global Note Legend
thereon and without the “Schedule of Exchanges of Interests in the Global Note” attached thereto).
Each Global Note will represent such of the outstanding Notes as will be specified therein and each
shall provide that it represents the aggregate principal amount of outstanding Notes from time to
time endorsed thereon and that the aggregate principal amount of outstanding Notes represented
thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and
redemptions. Any endorsement of a Global Note to reflect the amount of any increase or decrease in
the aggregate principal amount of outstanding Notes represented thereby will be made by the Trustee
or the Custodian, at the direction of the Trustee, in accordance with instructions given by the
Holder thereof as required by Section 2.06 hereof.



     (c) Temporary Global Notes. Notes offered and sold in reliance on Regulation S will be issued
initially in the form of the Regulation S Temporary Global Note, which will be deposited on behalf



24









 







of the purchasers of the Notes represented thereby with Custodian, and registered in the name of
the Depositary or the nominee of the Depositary for the accounts of designated agents holding on
behalf of Euroclear or Clearstream, duly executed by the Company and authenticated by the Trustee
as hereinafter provided. The Restricted Period will be terminated upon the receipt by the Trustee
of:




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




     (2) an Officers’ Certificate from the Company.



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



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


Section 2.02 Execution and Authentication.




     At least one Officer of the Company must sign the Notes for the Company and at least one
Officer of each of the Guarantors must sign the Note Guarantee for such Guarantor, in each case, by
manual or facsimile signature. If an Officer whose signature is on a Note no longer holds that
office at the time a Note is authenticated, the Note will nevertheless be valid.



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



     The Trustee shall authenticate and deliver: (i) on the date of this Indenture, an aggregate
principal amount of $200.0 million of 105/8% Senior Secured Notes due 2014, (ii) any Additional Notes
in accordance with Section 4.09 hereof, and (iii) Exchange Notes for issue only in an
Exchange Offer pursuant to a Registration Rights Agreement, for a like principal amount of Notes,
in each case upon receipt of a written order of the Company signed by two Officers (an
“Authentication Order”). Such Authentication Order shall specify the amount of the Notes to be
authenticated and the date on which the original issue of the Notes is to be authenticated. The
aggregate principal amount of Notes outstanding at any time may not exceed the aggregate principal
amount of Notes authorized for issuance by the Company pursuant to one or more Authentication
Orders, except as provided in Section 2.07 hereof.



25









 





     The Trustee may appoint an authenticating agent acceptable to the Company to authenticate
Notes. An authenticating agent may authenticate Notes whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee includes authentication by such agent.
An authenticating agent has the same rights as an Agent to deal with Holders or an Affiliate of
the Company.


Section 2.03 Registrar and Paying Agent.




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



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



     The Company initially appoints the Trustee to act as the Registrar and Paying Agent under this
Indenture.



     The Company initially appoints Wilmington Trust FSB to act as Custodian with respect to the
Global Notes.


Section 2.04 Paying Agent to Hold Money in Trust.




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


Section 2.05 Holder Lists.




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



26









 




Section 2.06 Transfer and Exchange.




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




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




     (2) the Company in its sole discretion determines that the Global Notes (in whole but
not in part) should be exchanged for Definitive Notes and delivers a written notice to such
effect to the Trustee; provided that in no event shall the Regulation S Temporary Global
Note be exchanged by the Company for Definitive Notes prior to (A) the expiration of the
Restricted Period and (B) the receipt by the Registrar of any certificates required pursuant
to Rule 903(b)(3)(ii)(B) under the Securities Act;  or




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



     Upon the occurrence of any of the preceding events in (1), (2) or (3) above, Definitive Notes
shall be issued in such names as the Depositary shall instruct the Trustee. Global Notes also may
be exchanged or replaced, in whole or in part, as provided in Sections 2.07 and
2.10 hereof. Every Note authenticated and delivered in exchange for, or in lieu of, a
Global Note or any portion thereof, pursuant to this Section 2.06 or Sections 2.07
or 2.10 hereof, shall be authenticated and delivered in the form of, and shall be, a Global
Note, except for Definitive Notes issued pursuant to subparagraphs (1), (2) and (3) of this
Section 2.06(a) and Section 2.06(c) hereof. A Global Note may not be exchanged for
another Note other than as provided in this Section 2.06(a), however, beneficial interests
in a Global Note may be transferred and exchanged as provided in Section 2.06(b),
(c) or (f) hereof.



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




     (1) Transfer of Beneficial Interests in the Same Global Note. Beneficial interests in
any Restricted Global Note may be transferred to Persons who take delivery thereof in the
form of a beneficial interest in the same Restricted Global Note in accordance with the
transfer restrictions set forth in the Private Placement Legend; provided, however, that
prior to the expiration of the Restricted Period, transfers of beneficial interests in the
Regulation S Temporary Global Note may not be made to a U.S. Person or for the account or
benefit of a U.S. Person (other than the Initial Purchasers). 
Beneficial interests in any Unrestricted Global Note may be transferred to Persons who take
delivery thereof in the form of a beneficial interest in an Unrestricted Global Note. No
written orders or instructions shall be required to be delivered to the Registrar to effect
the transfers described in this Section 2.06(b)(1).



27









 






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




     (A) both:




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




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




     (B) both:




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




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




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



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




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




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



28









 






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




     (C) if the transferee will take delivery in the form of a beneficial interest
in the IAI Global Note, then the transferor must deliver a certificate in the form
of Exhibit B hereto, including the certifications, certificates and Opinion
of Counsel required by item
(3) thereof, if applicable.




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




     (A) such exchange or transfer is effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement and Section 2.06(f) hereof
and the holder of the beneficial interest to be transferred, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in the applicable
Letter of Transmittal that it is not (i) a Participating Broker-Dealer, (ii) a
Person participating in the distribution of the Exchange Notes or (iii) a Person who
is an affiliate (as defined in Rule 144) of the Company;




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




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




     (D) the Registrar receives the following:




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




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




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



29









 





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



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



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




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




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




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




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




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




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




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




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


the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced
accordingly pursuant to Section 2.06(h) hereof, and the Company shall execute and the
Trustee shall


30









 






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





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




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




     (A) such exchange or transfer is effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement and Section 2.06(f) hereof
and the holder of such beneficial interest, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the applicable Letter of
Transmittal that it is not (i) a Participating Broker-Dealer, (ii) a Person
participating in the distribution of the Exchange Notes or (iii) a Person who is an
affiliate (as defined in Rule 144) of the Company;




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




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




     (D) the Registrar receives the following:




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




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



31









 






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




     (4) Beneficial Interests in Unrestricted Global Notes to Unrestricted Definitive Notes.
If any holder of a beneficial interest in an Unrestricted Global Note proposes to exchange
such beneficial interest for a Definitive Note or to transfer such beneficial interest to a
Person who takes delivery thereof in the form of a Definitive Note, then, upon satisfaction
of the conditions set forth in Section 2.06(b)(2) hereof, the Trustee will cause the
aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant
to Section 2.06(h) hereof, and the Company will execute and the Trustee will
authenticate and deliver to the Person designated in the instructions a Definitive Note in
the designated principal amount. Any Definitive Note issued in exchange for a beneficial
interest pursuant to this Section 2.06(c)(4) will be registered in such name or
names and in such authorized denomination or denominations as the holder of such beneficial
interest requests through instructions to the Registrar from or through the Depositary and
the Participant or Indirect Participant. The Trustee will deliver such Definitive Notes to
the Persons in whose names such Notes are so registered. Any Definitive Note issued in
exchange for a beneficial interest pursuant to this Section 2.06(c)(4) will not bear
the Private Placement Legend.



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




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




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




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




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




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




     (E) if such Restricted Definitive Note is being transferred to an Institutional
Accredited Investor in reliance on an exemption from the registration requirements
of the Securities Act other than those listed in subparagraphs (B) through (D)
above, a



32









 







certificate to the effect set forth in Exhibit B hereto, including
the certifications, certificates and Opinion of Counsel required by item (3)
thereof, if applicable;




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




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




the Trustee will cancel the Restricted Definitive Note, increase or cause to be
increased the aggregate principal amount of, in the case of clause (A) above, the
appropriate Restricted Global Note, in the case of clause (B) above, the 144A Global
Note, in the case of clause (C) above, the Regulation S Global Note, and in all
other cases, the IAI Global Note.




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




     (A) such exchange or transfer is effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement and Section 2.06(f) hereof
and the Holder, in the case of an exchange, or the transferee, in the case of a
transfer, certifies in the applicable Letter of Transmittal that it is not (i) a
Participating Broker-Dealer, (ii) a Person participating in the distribution of the
Exchange Notes or (iii) a Person who is an affiliate (as defined in Rule 144) of the
Company;




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




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




     (D) the Registrar receives the following:




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




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




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



33









 







is in compliance with the Securities Act and that the
restrictions on transfer
contained herein and in the Private Placement Legend are no
longer required in order to maintain compliance with the Securities Act.




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




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




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



     (e) Transfer and Exchange of Definitive Notes for Definitive Notes. Upon request by a Holder
of Definitive Notes and such Holder’s compliance with the provisions of this Section
2.06(e), the Registrar will register the transfer or exchange of Definitive Notes. Prior to
such registration of transfer or exchange, the requesting Holder must present or surrender to the
Registrar the Definitive Notes duly endorsed or accompanied by a written instruction of transfer in
form satisfactory to the Registrar duly executed by such Holder or by its attorney, duly authorized
in writing. In addition, the requesting Holder must provide any additional certifications,
documents and information, as applicable, required pursuant to the following provisions of this
Section 2.06(e).




     (1) Restricted Definitive Notes to Restricted Definitive Notes. Any Restricted
Definitive Note may be transferred to and registered in the name of Persons who take
delivery thereof in the form of a Restricted Definitive Note if the Registrar receives the
following:




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




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




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




     (2) Restricted Definitive Notes to Unrestricted Definitive Notes. Any Restricted
Definitive Note may be exchanged by the Holder thereof for an Unrestricted Definitive Note
or



34









 







transferred to a Person or Persons who take delivery thereof in the form of an
Unrestricted Definitive Note if:




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




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




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




     (D) the Registrar receives the following:




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




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




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




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



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




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



35









 






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



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



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




     (1) Private Placement Legend.




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




THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. NEITHER THIS NOTE NOR ANY INTEREST
OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS
SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.




THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A
“QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT),
(B) IT IS A NON-U.S. PURCHASER AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION
WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, OR (C) IT IS AN
INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (a)(1), (2),
(3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT, AND (2) AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH NOTE PRIOR TO THE DATE WHICH IS ONE YEAR AFTER THE LATER OF
THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY
AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF SUCH NOTE
), ONLY (A) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, (B) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT,
(C) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A
PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER
IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S.
PURCHASERS THAT OCCUR OUTSIDE THE U.S.



36









 







WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF
SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS
ACQUIRING THE NOTE FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR
FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S, OR
REGISTRAR’S, AS APPLICABLE, RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT
TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF
THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER
SIDE OF THIS NOTE IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE OR
REGISTRAR.




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




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




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




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



37









 







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




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




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




     (4) Original Issue Discount Legend. Each Note will bear a legend in substantially the
following form:




“THIS NOTE WAS ISSUED WITH ORIGINAL ISSUE DISCOUNT (AS DEFINED IN § 1273(A) OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED, AND TREASURY REGULATIONS § 1.1273-1 PROMULGATED
THEREUNDER). WITH RESPECT TO THE NOTES, CPM HOLDINGS, INC. (THE “COMPANY”) AGREES TO
PROVIDE TO HOLDERS OF NOTES, UPON WRITTEN REQUEST, THE ISSUE PRICE, AMOUNT OF ORIGINAL
ISSUE DISCOUNT, ISSUE DATE AND YIELD TO MATURITY. ANY SUCH WRITTEN REQUEST SHOULD BE SENT
TO THE CHIEF FINANCIAL OFFICER OF THE COMPANY AT THE FOLLOWING ADDRESS: CPM HOLDINGS, INC.,
2975 AIRLINE CIRCLE, WATERLOO, IA 50703.”



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



     (i) General Provisions Relating to Transfers and Exchanges.




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




     (2) No service charge will be made to a Holder of a beneficial interest in a Global
Note or to a Holder of a Definitive Note for any registration of transfer or exchange, but
the Company may require payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any such transfer taxes or



38









 







similar governmental charge payable upon exchange or transfer pursuant to Sections
2.10, 3.06, 3.09, 4.10, 4.15 and 9.05 hereof).




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




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




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




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




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




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




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




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




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


Section 2.07 Replacement Notes.




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



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



39









 




Section 2.08 Outstanding Notes.




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



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



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



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


Section 2.09 Treasury Notes.




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


Section 2.10 Temporary Notes.




     Until certificates representing Notes are ready for delivery, the Company may prepare and
execute, and the Trustee, upon receipt of an Authentication Order, will authenticate temporary
Notes. Temporary Notes will be substantially in the form of certificated Notes but may have
variations that the Company considers appropriate for temporary Notes, as evidenced by the
execution of the Note, and as may be reasonably acceptable to the Trustee.



     The Company shall cause definitive Notes to be prepared without unreasonable delay. After the
preparation of the definitive Notes, the temporary Notes shall be exchanged for definitive Notes
upon surrender of the temporary Notes at the office or agency of the Company, without charge to the
Holder. Upon surrender for cancellation of one or more temporary Notes, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefore a like principal amount of
definitive Notes of authorized denominations. Until so exchanged, holders of temporary Notes will
be entitled to all of the same benefits of this Indenture as holders of definitive Notes.


Section 2.11 Cancellation.




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



40









 







record retention requirement of the Exchange Act). Certification of the
destruction of all canceled Notes will be delivered to the Company upon request. The Company may
not issue new Notes to replace Notes that it has paid or that have been delivered to the Trustee
for cancellation. To the extent that any Notes are held in the form of Global Notes and less than
all of such Global Notes are to be cancelled, the reduction of the principal amount of any such
Global Note and the Registrar’s notation of such
cancellation on its books and records shall be deemed to satisfy any cancellation requirement,
provided that certification of such cancellation shall be delivered to the Company upon request.


Section 2.12 Defaulted Interest.




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


Section 2.13 CUSIP Numbers.




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



ARTICLE 3

REDEMPTION AND PREPAYMENT



Section 3.01 Notices to Trustee.




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




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




     (2) the redemption date;




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




     (4) the redemption price.



41









 




Section 3.02 Selection of Notes to Be Redeemed or Purchased.




     If less than all of the Notes are to be redeemed or purchased in an offer to purchase at any
time, the Trustee will select Notes for redemption or purchase on a pro rata basis (or in the case
of Global Notes, based on a method that most nearly approximates a pro rata selection that the
Trustee deems fair and appropriate, including by lot or other method) unless otherwise required by
law or applicable securities exchange or depositary requirements.



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



     The Trustee will promptly notify the Company in writing of the Notes selected for redemption
or purchase and, in the case of any Note selected for partial redemption or purchase, the principal
amount thereof to be redeemed or purchased. Notes and portions of Notes selected will be in
minimum amounts of $2,000 and integral multiples of $1,000 in excess thereof; except that if all of
the Notes of a Holder are to be redeemed or purchased, the entire outstanding amount of Notes held
by such Holder, even if not a multiple of $1,000, shall be redeemed or purchased. Except as
provided in the preceding sentence, provisions of this Indenture that apply to Notes called for
redemption or purchase also apply to portions of Notes called for redemption or purchase.


Section 3.03 Notice of Redemption.




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



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




     (1) the redemption date;




     (2) the redemption price;




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




     (4) in the case of Definitive Notes, the name and address of the Paying Agent;




     (5) in the case of Definitive Notes, that Notes called for redemption must be
surrendered to the Paying Agent to collect the redemption price;




     (6) that, unless the Company defaults in making such redemption payment, interest on
Notes called for redemption ceases to accrue on and after the redemption date;



42









 






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




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



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


Section 3.04 Effect of Notice of Redemption.




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


Section 3.05 Deposit of Redemption or Purchase Price.




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



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


Section 3.06 Notes Redeemed or Purchased in Part.




     Upon surrender of a Note that is redeemed or purchased in part, the Company will issue and,
upon receipt of an Authentication Order, the Trustee will authenticate for the Holder at the
expense of the Company a new Note equal in principal amount to the unredeemed or unpurchased
portion of the Note surrendered.


Section 3.07 Optional Redemption.




     (a) At any time prior to September 1, 2012, the Company may on any one or more occasions
redeem up to 35% of the aggregate principal amount of Notes issued under this Indenture, upon not
less than 30 nor more than 60 days’ notice, at a redemption price equal to 110.625% of the
principal amount



43









 







of the Notes redeemed, plus accrued and unpaid interest and Special Interest, if
any, to the date of redemption (subject to the rights of Holders of Notes on the relevant regular
record date to receive interest due on the relevant interest payment date that is on or prior to
the applicable date of redemption), with the net cash proceeds of an Equity Offering by the
Company; provided that:




     (1) at least 65% of the aggregate principal amount of Notes originally issued under
this Indenture (excluding Notes held by the Company and its Subsidiaries) remains
outstanding immediately after the occurrence of such redemption; and




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



     (b) On or after September 1, 2012, the Company may on any one or more occasions redeem all or
a part of the Notes, upon not less than 30 nor more than 60 days’ notice, at the redemption prices
(expressed as percentages of principal amount) set forth below, plus accrued and unpaid interest
and Special Interest, if any, on the Notes redeemed, to the applicable date of redemption, if
redeemed during the twelve-month period beginning on September 1 of the years indicated below,
subject to the rights of Holders of Notes on the relevant regular record date to receive interest
due on the relevant interest payment date that is on or prior to the applicable date of redemption:



	 	 	 	 	 
	Year	 	Percentage
	2012
	 	 	105.313	%
	2013 and thereafter
	 	 	100.000	%






     (c) At any time prior to September 1, 2012, the Company may on any one or more occasions
redeem all or a part of the Notes, upon not less than 30 nor more than 60 days’ notice, at a
redemption price equal to 100% of the principal amount of the Notes redeemed plus the Applicable
Premium, plus accrued and unpaid interest and Special Interest, if any, on the Notes redeemed, to
the applicable date of redemption (subject to the rights of Holders of Notes on the relevant
regular record date to receive interest due on the relevant interest payment date that is on or
prior to the applicable date of redemption).



     Except pursuant to Sections 3.07(a) and 3.07(c) hereof, the Notes will not be
redeemable at the Company’s option prior to September 1, 2012. The Company is not, however,
prohibited under this Indenture from acquiring Notes by means other than a redemption, whether
pursuant to open-market transactions, tender offers or otherwise so long as such acquisition does
not otherwise violate the terms of this Indenture.



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



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


Section 3.08 Mandatory Redemption.




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



44









 




Section 3.09 Offer to Purchase by Application of Excess Proceeds.




     In the event that, pursuant to Section 4.10 hereof, the Company is required to
commence an Asset Sale Offer, it will follow the procedures specified below.



     The Asset Sale Offer shall be made to all Holders and, unless the applicable Asset Sale
involves a sale of Collateral other than Collateral that is subject to a Permitted Lien, at the
option of the Company, all holders of other Indebtedness that is pari passu with the Notes and
contains provisions similar to those set forth in this Indenture with respect to offers to
purchase, prepay or redeem with the proceeds of sales of assets. The Asset Sale Offer will remain
open for a period of at least 20 Business Days following its commencement and not more than 30
Business Days, except to the extent that a longer period is required by applicable law (the “Offer
Period”). No later than three Business Days after the termination of the
Offer Period (the “Purchase Date”), the Company will apply all Excess Proceeds to the purchase
of Notes and, if applicable, such other pari passu Indebtedness (on a pro rata basis as determined
in accordance with Section 4.10) or, if less than the amount of the Excess Proceeds has
been tendered, all Notes and, if applicable, other Indebtedness tendered in response to the Asset
Sale Offer. Payment for any Notes so purchased will be made in the same manner as interest
payments are made.



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



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




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




     (2) the Excess Proceeds amount, the purchase price and the Purchase Date;




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




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




     (5) that Holders electing to have a Note purchased pursuant to an Asset Sale Offer may
elect to have Notes purchased in minimum amounts of $2,000 and integral multiples of $1,000
in excess thereof only;




     (6) that Holders electing to have Notes purchased pursuant to any Asset Sale Offer will
be required to surrender the Note, with the form entitled “Option of Holder to Elect
Purchase” attached to the Notes completed, or transfer by book-entry transfer, to the
Company, the depositary, if appointed by the Company, or a Paying Agent at the address
specified in the notice at least three Business Days before the Purchase Date;




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



45









 







Offer Period, a facsimile transmission or letter setting forth the name of the
Holder, the principal amount of the Note the Holder delivered for purchase and a statement
that such Holder is withdrawing its election to have such Note purchased;




     (8) that, if the aggregate principal amount of Notes and, if applicable, other pari
passu Indebtedness surrendered by holders thereof exceeds the Excess Proceeds amount, the
Company will select the Notes and other pari passu Indebtedness to be purchased and the
Trustee will select the Notes to be purchased in the manner set forth in Section
4.10 (with such adjustments as may be deemed appropriate by the Company so that only
Notes in minimum amounts of $2,000 and integral multiples of $1,000 in excess thereof, will
be purchased); and




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



     The Company, the depositary or the Paying Agent, as the case may be, will promptly (but in any
case not later than five Business Days after the Purchase Date) mail or deliver to each tendering
Holder an amount equal to the purchase price of the Notes tendered by such Holder and accepted by
the Company for purchase, and the Company will promptly issue a new Note, and the Trustee, upon
written request from the Company, will authenticate and mail or deliver (or cause to be transferred
by book entry) such new Note to such Holder, in a principal amount equal to any unpurchased portion
of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the
Company to the Holder thereof. The Company will publicly announce the results of the Asset Sale
Offer on the Purchase Date.



     Other than as specifically provided in this Section 3.09 or in Section 4.10
hereof, any purchase pursuant to this Section 3.09 or Section 4.10 hereof shall be
made pursuant to the provisions of Sections 3.01 through 3.06 hereof.



ARTICLE 4

COVENANTS



Section 4.01 Payment of Notes.




     The Company will pay or cause to be paid the principal of, premium, if any, and interest and
Special Interest, if any, on, the Notes on the dates and in the manner provided in the Notes and
this Indenture. Principal, premium, if any, and interest and Special Interest, if any, will be
considered paid on the date due if the Paying Agent, if other than the Company or a Subsidiary
thereof, holds as of 10:00 a.m. Eastern Time on the due date money deposited by the Company in
immediately available funds and designated for and sufficient to pay all principal, premium, if
any, and interest then due. The Company will pay all Special Interest, if any, in the same manner
on the dates and in the amounts set forth in the Registration Rights Agreement.



     The Company will pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal and premium, if any, at the rate equal to 2% per annum in
excess of the then applicable interest rate on the Notes to the extent lawful; it will pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest and Special Interest (without regard to any applicable grace period) at
the same rate to the extent lawful. The Company shall deliver to the Trustee, at least five
Business Days before an interest payment date, an Officers’ Certificate certifying as to the amount
of Special Interest due on such interest payment date. If the Trustee does not receive notice from
the Company of an event in respect of which Special Interest is



46









 







required to be paid or does not
receive an Officers’ Certificate from the Company five Business Days before any interest payment
date, the Trustee shall be entitled to assume that no Special Interest is due on such interest
payment date.


Section 4.02 Maintenance of Office or Agency.




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



     The Company may also from time to time designate one or more other offices or agencies where
the Notes may be surrendered for any or all such purposes and may from time to time rescind such
designation. The Company will give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or agency.



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


Section 4.03 Reports.




     (a) Whether or not required by the rules and regulations of the SEC, so long as any Notes are
outstanding, the Company will furnish to the Holders of Notes, or cause the Trustee to furnish to
the Holders of Notes, and make available on a publicly available website (or file with the SEC for
public availability) (i) prior to the consummation of the Exchange Offer contemplated by the
Registration Rights Agreement, within 60 days following the end of the applicable quarter in the
case of quarterly reports (provided that the Company shall not be required to furnish a quarterly
report for the quarter ended June 30, 2009 until September 30, 2009), within 120 days following the
end of the applicable fiscal year in the case of annual reports, and within the time period
specified in the SEC’s rules and regulations in the case of current reports, and (ii) after the
consummation of the Exchange Offer contemplated by the Registration Rights Agreement, within the
time periods specified in the SEC’s rules and regulations:




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




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


All such reports will be prepared in all material respects in accordance with all of the rules and
regulations applicable to such reports. Each annual report on Form 10-K will include a report on
the Company’s consolidated financial statements by the Company’s certified independent accountants.
In addition, following the consummation of the Exchange Offer contemplated by the Registration
Rights Agreement, the Company will file a copy of each of the reports referred to in clauses
(1) and (2) of this Section 4.03(a) with the SEC for public availability
within the time periods specified in the rules and regulations applicable to such reports (unless
the SEC will not accept such filing).




47









 








     (b) If, at any time after consummation of the Exchange Offer contemplated by the Registration
Rights Agreement, the Company is no longer subject to the periodic reporting requirements of the
Exchange Act for any reason, the Company will nevertheless continue filing the reports specified in
clauses (1) and (2) of Section 4.03(a) above with the SEC within the time periods specified
above unless the SEC will not accept such a filing. The Company will not take any action for the
purpose of causing the SEC not to accept any such filings. If, notwithstanding the foregoing, the
SEC will not accept the Company’s filings for any reason, the Company will post the reports
referred to in the preceding clauses (1) and (2) of Section 4.03(a) above on its website
within the time periods that would apply if the Company were required to file those reports with
the SEC.



     (c) If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries, then
the quarterly and annual financial information required by clauses (1) and (2) of Section
4.03(a) will include a reasonably detailed presentation, either on the face of the financial
statements or in the footnotes
thereto, and in Management’s Discussion and Analysis of Financial Condition and Results of
Operations, of the financial condition and results of operations of the Company and its Restricted
Subsidiaries separate from the financial condition and results of operations of the Unrestricted
Subsidiaries of the Company.



     (d) The Company agrees that, for so long as any Notes remain outstanding, it will use
reasonable best efforts to hold and participate in quarterly conference calls with Holders of Notes
relating to the financial condition and results of operations of the Company and its Subsidiaries.



     (e) In addition, the Company and the Guarantors agree that, for so long as any Notes remain
outstanding, if at any time they are not required to file with the SEC the reports required by this
Section 4.03, they will furnish to the Holders of 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.


Section 4.04 Compliance Certificate.




     (a) The Company and each Guarantor shall deliver to the Trustee, within 90 days after the end
of each fiscal year of the Company (which fiscal year, on the date of this Indenture, ends on
September 30), an Officers’ Certificate stating that a review of the activities of the Company and
its Subsidiaries during the preceding fiscal year has been made under the supervision of the
signing Officers with a view to determining whether the Company has kept, observed, performed and
fulfilled its obligations under this Indenture and the Collateral Documents, and further stating,
as to each such Officer signing such certificate, that to his or her actual knowledge, based on
such review, the Company has during the preceding fiscal year kept, observed, performed and
fulfilled each and every covenant contained in this Indenture and the Collateral Documents and is
not in default in the performance or observance of any of the terms, provisions and conditions of
this Indenture or the Collateral Documents (or, if a Default or Event of Default has occurred,
describing all such Defaults or Events of Default of which he or she may have knowledge and what
action the Company is taking or proposes to take with respect thereto) and that to the best of his
or her knowledge no event has occurred and remains in existence by reason of which payments on
account of the principal of or interest, if any, on the Notes is prohibited or if such event has
occurred, a description of the event and what action the Company is taking or proposes to take with
respect thereto.



     (b) So long as not contrary to the then current recommendations of the American Institute of
Certified Public Accountants, the year-end financial statements delivered pursuant to Section
4.03 above shall be accompanied by a written statement of the Company’s independent public
accountants (who shall be a firm of established national reputation) that in making the examination
necessary for certification of



48









 







such financial statements, nothing has come to their attention that
would lead them to believe that the Company has violated any provisions of Article 4 or Article 5
hereof insofar as they relate to accounting matters or, if any such violation has occurred,
specifying the nature and period of existence thereof, it being understood that such accountants
shall not be liable directly or indirectly to any Person for any failure to obtain knowledge of any
such violation.



     (c) So long as any of the Notes are outstanding, the Company will deliver to the Trustee,
forthwith upon any Officer becoming aware of any Default or Event of Default, an Officers’
Certificate specifying such Default or Event of Default and what action the Company is taking or
proposes to take with respect thereto.


Section 4.05 Taxes.




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


Section 4.06 Stay, Extension and Usury Laws.




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


Section 4.07 Restricted Payments.




     (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly
or indirectly:




     (1) declare or pay any dividend or make any other payment or distribution on account of
the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without
limitation, any payment in connection with any merger or consolidation involving the Company
or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s
or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (other
than dividends or distributions payable in Equity Interests (other than Disqualified Stock)
of the Company and other than dividends or distributions payable to the Company or a
Restricted Subsidiary of the Company);




     (2) purchase, redeem or otherwise acquire or retire for value (including, without
limitation, in connection with any merger or consolidation involving the Company) any Equity
Interests of the Company or any direct or indirect parent of the Company (other than any
such Equity Interests owned by the Company or any of its Restricted Subsidiaries);




     (3) make any payment on or with respect to, or purchase, redeem, defease or otherwise
acquire or retire for value any Indebtedness of the Company or any Guarantor that is
contractually subordinated to the Notes or to any Note Guarantee (excluding any intercompany



49









 







Indebtedness between or among the Company and any of its Restricted Subsidiaries), except a
payment of interest or principal at the Stated Maturity thereof; or




     (4) make any Restricted Investment


(all such payments and other actions set forth in these clauses (1) through (4) above being
collectively referred to as “Restricted Payments”),





     unless, at the time of and after giving effect to such Restricted Payment:




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




     (b) the Company would, at the time of such Restricted Payment and after giving pro
forma effect thereto as if such Restricted Payment had been made at the beginning of the
applicable four-quarter period, have been permitted to incur at least $1.00 of additional
Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section
4.09(a); and




     (c) such Restricted Payment, together with the aggregate amount of all other Restricted
Payments made by the Company and its Restricted Subsidiaries since the date of this
Indenture (excluding Restricted Payments permitted by clauses (2) through (11) of
Section 4.07(b)), is less than the sum, without duplication, of:




     (1) 50% of the Consolidated Net Income of the Company for the period (taken as
one accounting period) from October 1, 2009 to the end of the Company’s most
recently ended fiscal quarter for which internal financial statements are available
at the time of such Restricted Payment (or, if such Consolidated Net Income for
such period is a deficit, less 100% of such deficit); plus




     (2) 100% of the aggregate net cash proceeds received by the Company since the
date of this Indenture as a contribution to its common equity capital or from (x)
the issue or sale of Equity Interests of the Company or (y) from the issue or sale
of convertible or exchangeable Disqualified Stock of the Company or convertible or
exchangeable debt securities of the Company (including any additional net proceeds
received by the Company upon such conversion or exchange) that, in the case of this
clause (y), have been converted into or exchanged for Equity Interests of the
Company (other than Equity Interests and convertible or exchangeable Disqualified
Stock or debt securities sold to a Subsidiary of the Company); plus




     (3) to the extent that any Restricted Investment that was made after the date
of this Indenture is sold for cash or otherwise liquidated or repaid for cash, the
amount of cash received upon such sale, liquidation or repayment; plus




     (4) to the extent that any Unrestricted Subsidiary of the Company is
redesignated as a Restricted Subsidiary, the lesser of (i) the Fair Market Value of
the Company’s Restricted Investment in such Subsidiary as of the date of such
redesignation or (ii) the aggregate amount of Restricted Investments of the Company
and its Restricted Subsidiaries in such Subsidiary at or subsequent to the time
that such Subsidiary was designated an Unrestricted Subsidiary; plus




50











 






     (5) 50% of any dividends received in cash by the Company or a
Restricted Subsidiary of the Company after the date of this Indenture from an
Unrestricted Subsidiary of the Company, to the extent that such dividends were not
otherwise included in the Consolidated Net Income of the Company for such period.



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




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




     (2) the making of any Restricted Payment in exchange for, or out of or with the net
cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the
Company) of, Equity Interests of the Company (other than Disqualified Stock) or from the
substantially concurrent contribution of common equity capital to the Company; provided that
the amount of any such net cash proceeds that are utilized for any such Restricted Payment
will not be considered to be net proceeds of Equity Interests for purposes of clause (c)(2)
of Section 4.07(a) hereof;




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




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




     (5) the repurchase, redemption or other acquisition or retirement for value of any
Equity Interests of the Company or any Restricted Subsidiary of the Company held by any
current or former officer, director, consultant or employee (or any of their respective
heirs or estates) of the Company or any of its Restricted Subsidiaries pursuant to any
equity subscription agreement, stock option agreement, shareholders’ agreement or similar
agreement; provided that the aggregate price paid for all such repurchased, redeemed,
acquired or retired Equity Interests in any calendar year may not exceed the sum of (x) $1.0
million, plus (y) the aggregate amount of Restricted Payments permitted (but not made)
pursuant to this clause (5) in the previous calendar year;




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




     (7) so long as no Default or Event of Default has occurred and is continuing, the
declaration and payment of regularly scheduled or accrued dividends to holders of any class
or series of Disqualified Stock of the Company or any preferred stock of any Restricted
Subsidiary of the Company issued on or after the date of this Indenture in accordance with
the Fixed Charge Coverage Ratio test set forth in Section 4.09(a) hereof;




     (8) payments of cash, dividends, distributions, advances or other Restricted Payments
by the Company or any of its Restricted Subsidiaries to allow the payment of cash in



51









 







lieu of the issuance of fractional shares upon the exercise of options or warrants or
the conversion or exchange of Capital Stock of any such Person;




     (9) in the event of a Change of Control, and if no Default or Event of Default shall
have occurred and be continuing or would exist after giving effect, the payment, purchase,
redemption, defeasance or other acquisition or retirement of Indebtedness that is
subordinated to the Notes or the Note Guarantees, in each case, at a purchase price not
greater than 101% of the principal amount of such Indebtedness (or, if such Indebtedness was
issued with original issue discount, 101% of the accreted value), plus any accrued and
unpaid interest thereon; provided, however, that prior to such payment, purchase,
redemption, defeasance or other acquisition or retirement, the Company has made a Change of
Control Offer with respect to the Notes as a result of such Change of Control and has
repurchased all Notes validly tendered and not withdrawn in connection with such Change of
Control Offer;




     (10) in the event of an Asset Sale that requires the Company to offer to repurchase
Notes pursuant to Section 4.10 hereof and if no Default or Event of Default shall
have occurred and be continuing, the payment, purchase, redemption, defeasance or other
acquisition or retirement of Indebtedness that is subordinated to the Notes or the Note
Guarantees at a purchase price not greater than 100% of the principal amount (or, if such
subordinated Indebtedness were issued with original issue discount, 100% of the accreted
value) of such subordinated Indebtedness, plus any accrued and unpaid interest thereon; and




     (11) other Restricted Payments in an aggregate amount not to exceed $5.0 million.



     (c) The amount of all Restricted Payments (other than cash) will be the Fair Market Value on
the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or
issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted
Payment. For purposes of determining compliance with any United States dollar-denominated
restriction on the making of any Restricted Payment or Investment, the United States
dollar-equivalent amount of any Restricted Payment or Investment denominated in a foreign currency
shall be utilized, calculated based on the relevant currency exchange rate in effect on the date
such Restricted Payment or Investment was made.



Section 4.08 Dividend and Other Payment Restrictions Affecting Subsidiaries.




     (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly
or indirectly, create or permit to exist or become effective any consensual encumbrance or
restriction on the ability of any Restricted Subsidiary to:




     (1) pay dividends or make any other distributions on its Capital Stock to the Company
or any of its Restricted Subsidiaries, or with respect to any other interest or
participation in, or measured by, its profits, or pay any indebtedness owed to the Company
or any of its Restricted Subsidiaries;




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




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



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



52









 






     (1) agreements as in effect on the date of this Indenture, including agreements
governing Existing Indebtedness and Credit Facilities, and any agreements entered into in
connection with the New Senior Secured Revolving Credit Facility, and any amendments,
restatements, modifications, renewals, supplements, refundings, replacements or refinancings
of those agreements; provided that the amendments, restatements, modifications, renewals,
supplements, refundings, replacements or refinancings are not materially more restrictive,
taken as a whole, as determined by the Board of Directors of the Company in its reasonable
good faith judgment, with respect to such dividend and other payment restrictions than those
contained in those agreements on the date of this Indenture;




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




     (3) agreements governing other Indebtedness permitted to be incurred under Section
4.09 hereof and any amendments, restatements, modifications, renewals, supplements,
refundings, replacements or refinancings of those agreements; provided that the restrictions
therein are not materially more restrictive, taken as a whole, as determined by the Board of
Directors of the Company in its reasonable good faith judgment, than those contained in this
Indenture, the Notes and the Note Guarantees;




     (4) agreements governing other Indebtedness of Foreign Subsidiaries permitted to be
incurred under Section 4.09 hereof and any amendments, restatements, modifications,
renewals, supplements, refundings, replacements or refinancings of those agreements;




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




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




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




     (8) purchase money obligations for property acquired in the ordinary course of business
and Capital Lease Obligations that impose restrictions on the property purchased or leased
of the nature described in Section 4.08(a)(3) hereof;




     (9) any agreement for the sale or other disposition of all or substantially all of the
Capital Stock or assets of a Restricted Subsidiary that restricts distributions by that
Restricted Subsidiary pending its sale or other disposition;




     (10) Permitted Refinancing Indebtedness; provided that the restrictions contained in
the agreements governing such Permitted Refinancing Indebtedness are not materially more
restrictive, taken as a whole, than those contained in the agreements governing the
Indebtedness being refinanced;




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



53









 






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




     (13) any agreement or instrument relating to any property, asset or business acquired
by the Company or any of its Restricted Subsidiaries as in effect at the time of such
acquisition, which encumbrance or restriction is not applicable to any property, asset or
business other than the properties, assets or businesses so acquired;




     (14) customary restrictions imposed on the transfer of, or in licenses related to,
copyrights, patents or other intellectual property and contained in agreements entered into
in the ordinary course of business; and




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



Section 4.09 Incurrence of Indebtedness and Issuance of Preferred Stock.




     (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly
or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly
liable, contingently or otherwise, with respect to (collectively, “incur”) any Indebtedness
(including Acquired Debt), and the Company will not issue any Disqualified Stock and will not
permit any of its Restricted Subsidiaries to issue any shares of preferred stock; provided,
however, that the Company may incur Indebtedness (including Acquired Debt) or issue Disqualified
Stock, and the Guarantors may incur Indebtedness (including Acquired Debt) or issue preferred
stock, if the Fixed Charge Coverage Ratio for the Company’s most recently ended four full fiscal
quarters for which internal financial statements are available immediately preceding the date on
which such additional Indebtedness is incurred or such Disqualified Stock or such preferred stock
is issued, as the case may be, would have been at least 2.0 to 1, determined on a pro forma basis
(including a pro forma application of the net proceeds therefrom), as if the additional
Indebtedness had been incurred or the Disqualified Stock or the preferred stock had been issued, as
the case may be, at the beginning of such four-quarter period.



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




     (1) the incurrence by the Company and its Restricted Subsidiaries of Indebtedness and
letters of credit under Credit Facilities in an aggregate principal amount at any one time
outstanding under this clause (1) (with letters of credit being deemed to have a principal
amount equal to the maximum potential reimbursement obligations of the Company and its
Restricted Subsidiaries thereunder) not to exceed $30.0 million;




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




     (3) the incurrence by the Company and the Guarantors of Indebtedness represented by the
Notes and the related Note Guarantees to be issued on the date of this Indenture and the
Exchange Notes and the related Note Guarantees to be issued pursuant to the Registration
Rights Agreement;



54









 






     (4) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness
represented by Capital Lease Obligations, mortgage financings or purchase money obligations,
in each case, incurred for the purpose of financing all or any part of the purchase price or
cost of design, construction, installation or improvement of property, plant or equipment
used in the business of the Company or any of its Restricted Subsidiaries, in an aggregate
principal amount, including all Permitted Refinancing Indebtedness incurred to renew,
refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this
clause (4), not to exceed $5.0 million at any time outstanding;




     (5) the incurrence by the Company or any of its Restricted Subsidiaries of Permitted
Refinancing Indebtedness in exchange for, or the net proceeds of which are used to renew,
refund, refinance, replace, defease or discharge any Indebtedness (other than intercompany
Indebtedness) that was permitted by this Indenture to be incurred under Section
4.09(a) hereof or clauses (2), (3), (4), (12) or (16) of this Section 4.09(b) or
this clause (5);




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




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




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




     (7) the issuance by any of the Company’s Restricted Subsidiaries to the Company or to
any of its Restricted Subsidiaries of shares of preferred stock; provided, however, that any
subsequent issuance or transfer of Equity Interests that results in any such preferred stock
being held by a Person other than the Company or a Restricted Subsidiary of the Company, and
any sale or other transfer of any such preferred stock to a Person that is not either the
Company or a Restricted Subsidiary of the Company, will be deemed, in each case, to
constitute an issuance of such preferred stock by such Restricted Subsidiary that was not
permitted by this clause (7);




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




     (9) the guarantee by the Company or any of the Guarantors of Indebtedness of the
Company or a Restricted Subsidiary of the Company to the extent that the guaranteed
Indebtedness was permitted to be incurred by another provision of this Section
4.09(b); provided that if the Indebtedness being guaranteed is subordinated to or pari
passu with the Notes, then the Guarantee must be subordinated or pari passu, as applicable,
to the same extent as the Indebtedness guaranteed;



55









 






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




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




     (12) the incurrence by the Company or any Guarantor of Indebtedness in connection with
the acquisition of assets or a new Restricted Subsidiary (including Acquired Debt); provided
that the principal amount of such Indebtedness, together with any other outstanding
Indebtedness incurred pursuant to this clause (12) and all Permitted Refinancing
Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any
Indebtedness incurred pursuant to this clause (12), does not exceed $15.0 million;




     (13) the incurrence by the Company or any of its Restricted Subsidiaries of
Indebtedness to the extent that the net proceeds thereof are immediately deposited to
defease or discharge the Notes in full, in each case, in accordance with the terms of this
Indenture;




     (14) the incurrence by the Company’s Foreign Subsidiaries of customary commercial
letters of credit, “bank guarantees” or similar obligations in the ordinary course of
business consistent with past practices;




     (15) the incurrence by the Company or any of its Restricted Subsidiaries of
Indebtedness arising from agreements providing for bona fide indemnification, adjustment of
purchase price, earnout or similar obligations, in each case, incurred or assumed in
connection with the acquisition or disposition of any business, asset or Subsidiary, other
than Guarantees of Indebtedness incurred by any Person acquiring all or any portion of such
business, assets or Subsidiary for the purpose of financing such acquisition; provided that
(a) such Indebtedness is not reflected on the Company’s balance sheet or that of any
Restricted Subsidiary of the Company (contingent obligations referred to in a footnote or
footnotes to financial statements and not otherwise reflected on the balance sheet will not
be deemed to be reflected on such balance sheet for purposes of this clause (15)(a)); and
(b) the maximum assumable liability in respect of any such Indebtedness incurred in
connection with a disposition shall at no time exceed the aggregate gross proceeds including
non-cash proceeds (the fair market value of such non-cash proceeds being measured at the
time received and without giving effect to any such subsequent changes in value) actually
received by the Company and its Restricted Subsidiary in connection with such disposition;
and




     (16) the incurrence by the Company or any of its Restricted Subsidiaries of additional
Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time
outstanding, including all Permitted Refinancing Indebtedness incurred to renew, refund,
refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause
(16), not to exceed $15.0 million.



     (c) The Company will not incur, and will not permit any Guarantor to incur, any Indebtedness
(including Permitted Debt) that is contractually subordinated in right of payment to any other
Indebtedness of the Company or such Guarantor unless such Indebtedness is also contractually
subordinated in right of payment to the Notes and the applicable Note Guarantee on substantially
identical terms; provided, however, that no Indebtedness will be deemed to be contractually
subordinated in right



56









 




of payment to any other Indebtedness of the Company solely by virtue of being unsecured or by
virtue of being secured on junior priority basis.




     (d) For purposes of determining compliance with this Section 4.09, in the event that
an item of Indebtedness meets the criteria of more than one of the categories of Permitted Debt
described in clauses (1) through (16) of Section 4.09(b) hereof, or is entitled to be
incurred pursuant to Section 4.09(a) hereof, the Company will be permitted to classify such
item of Indebtedness on the date of its incurrence, or later reclassify all or a portion of such
item of Indebtedness, in any manner that complies with this Section 4.09. Indebtedness
under Credit Facilities outstanding on the date on which Notes are first issued and authenticated
under this Indenture will initially be deemed to have been incurred on such date in reliance on the
exception provided by Section 4.09(b)(1) hereof. The accrual of interest or preferred stock
dividends, the accretion or amortization of original issue discount, the payment of interest on any
Indebtedness in the form of additional Indebtedness with the same terms, the reclassification of
preferred stock as Indebtedness due to a change in accounting principles, and the payment of
dividends on preferred stock or Disqualified Stock in the form of additional shares of the same
class of preferred stock or Disqualified Stock will not be deemed to be an incurrence of
Indebtedness or an issuance of preferred stock or Disqualified Stock for purposes of this
Section 4.09; provided, in each such case, that the amount of any such accrual, accretion
or payment is included in Fixed Charges of the Company as accrued. For purposes of determining
compliance with any United States dollar-denominated restriction on the incurrence of Indebtedness,
the United States dollar-equivalent principal amount of Indebtedness denominated in a foreign
currency shall be utilized, calculated based on the relevant currency exchange rate in effect on
the date such Indebtedness was incurred. Notwithstanding any other provision of this Section
4.09, the maximum amount of Indebtedness that the Company or any Restricted Subsidiary may
incur pursuant to this Section 4.09 shall not be deemed to be exceeded solely as a result
of fluctuations in exchange rates or currency values.



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




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




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




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




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




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



Section 4.10 Asset Sales.




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




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



57









 






     (2) at least 75% of the consideration received in the Asset Sale by the Company or such
Restricted Subsidiary is in the form of cash or Cash Equivalents. For purposes of this
provision, each of the following will be deemed to be cash:




     (A) any liabilities, as shown on the Company’s most recent consolidated balance
sheet or as would be reflected on a balance sheet prepared in accordance with GAAP
on the date of such sale, of the Company or any Restricted Subsidiary (other than
contingent liabilities and liabilities that are by their terms subordinated to the
Notes or any Note Guarantee) that are assumed by the transferee of any such assets
pursuant to a customary novation or indemnity agreement that releases the Company or
such Restricted Subsidiary from or indemnifies against further liability;




     (B) any securities, notes or other obligations received by the Company or any
such Restricted Subsidiary from such transferee that are contemporaneously, subject
to ordinary settlement periods, converted by the Company or such Restricted
Subsidiary into cash, to the extent of the cash received in that conversion; and




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



     (b) Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or
the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds:




     (1) to repay Indebtedness and other Obligations under a Credit Facility that are
secured by a first priority Lien on the assets that are the subject of such Asset Sale and,
if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce
commitments with respect thereto;




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




     (3) to make a capital expenditure;




     (4) to acquire other assets that are not classified as current assets under GAAP and
that are used or useful in a Permitted Business (including expenditures for maintenance,
repair or improvement of existing properties and assets); or




     (5) any combination of the foregoing clauses (1) through (4).



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



     (d) Any Net Proceeds from Asset Sales that are not applied or invested as provided in
Section 4.10(b) within 360 days after the receipt of such Net Proceeds from such applicable
Asset Sale will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds
$15.0 million, within five Business Days thereof, the Company will make an offer (an “Asset Sale
Offer”) to (1) all Holders of Notes, and (2) unless such Asset Sale involves a sale of Collateral
other than Collateral that is subject to a Permitted Lien, at the option of the Company, all
holders of other Indebtedness that is pari passu with the Notes and contains provisions similar to
those set forth in this Indenture with respect to



58









 




offers to purchase, prepay or redeem with the proceeds of sales of assets, in each case to
purchase, prepay or redeem the maximum principal amount of Notes and, if applicable, such other
pari passu Indebtedness that may be purchased, prepaid or redeemed out of the Excess Proceeds. The
offer price with respect to the Notes in any Asset Sale Offer will be equal to 100% of the
principal amount, plus accrued and unpaid interest and Special Interest, if any, to the date of
purchase, prepayment or redemption, subject to the rights of Holders of Notes on the relevant
regular record date to receive interest due on the relevant interest payment date that is on or
prior to the applicable date of repurchase, prepayment or redemption, and will be payable in cash.
If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those
Excess Proceeds for any purpose not otherwise prohibited by this Indenture (including, without
limitation, the repayment of Indebtedness and other Obligations under a Credit Facility, whether or
not secured by a first priority Lien on the assets that are the subject of such Asset Sale). If the
aggregate principal amount of Notes and, if applicable, other pari passu Indebtedness tendered into
such Asset Sale Offer exceeds the amount of Excess Proceeds, the Company will select the Notes and
other pari passu Indebtedness to be repurchased, prepaid or redeemed on a pro rata basis, and the
Trustee will select the Notes to be repurchased, prepaid or redeemed on a pro rata basis or by lot
or by other method as the Trustee deems fair and appropriate, in each case based on the amounts
tendered or required to be prepaid or redeemed. Upon completion of each Asset Sale Offer, the
amount of Excess Proceeds will be reset at zero.




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



Section 4.11 Transactions with Affiliates.




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




     (1) the Affiliate Transaction is on terms that are no less favorable to the Company or
the relevant Restricted Subsidiary than those that would have been obtained in a comparable
transaction by the Company or such Restricted Subsidiary with an unrelated Person; and




     (2) the Company delivers to the Trustee:




     (A) with respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $2.5 million, a
resolution of the Board of Directors of the Company set forth in an Officers’
Certificate certifying that such Affiliate Transaction complies with this
Section 4.11 and that such Affiliate Transaction has been approved by a
majority of the disinterested members of the Board of Directors of the Company; and




     (B) with respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $10.0 million, an
opinion as to the fairness to the Company or such Restricted Subsidiary of such
Affiliate



59









 







Transaction from a financial point of view issued by an accounting, appraisal
or investment banking firm of national standing.



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




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




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




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




     (4) payment of reasonable and customary fees and reimbursements of expenses to, and the
provision of indemnities (pursuant to indemnity arrangements or otherwise) to, officers,
directors, employees or consultants of the Company or any of its Restricted Subsidiaries;




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




     (6) Restricted Payments that do not violate the provisions of Section 4.07;




     (7) payments of fees and expense reimbursements to the Sponsor pursuant to the
Management Agreement as in effect on the date of this Indenture and any amendments thereto
or replacements thereof that are no less favorable to the Company;




     (8) loans or advances to employees in the ordinary course of business not to exceed
$1.0 million in the aggregate at any one time outstanding;




     (9) any agreement between any Person and an Affiliate of such Person existing at the
time such Person is acquired by or merged into the Company or any of the Company’s
Restricted Subsidiaries; provided, that such agreement was not entered into contemplation of
such acquisition or merger, or any amendment thereto (so long as any such amendment is not
disadvantageous to the Holders of the Notes when taken as a whole as compared to the
applicable agreement as in effect on the date of such acquisition or merger); and




     (10) transactions pursuant to any contract or agreement described in the Offering
Memorandum under the caption “Certain Relationships and Related Party Transactions” (other
than the Management Agreement) and in effect on the date of this Indenture as the same may
be amended, modified or replaced from time to time so long as any such amendment,
modification or replacement is not, in the reasonable good faith judgment of the Board of
Directors or senior management of the Company, more disadvantageous to the Company or its
Restricted Subsidiaries than the contract or agreement as in effect on the date of this
Indenture.



60









 





Section 4.12 Liens.




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



Section 4.13 Business Activities.




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



Section 4.14 Corporate Existence.




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




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




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



Section 4.15 Offer to Repurchase Upon Change of Control.




     (a) Upon the occurrence of a Change of Control, the Company will make an offer (a “Change of
Control Offer”) to each Holder to repurchase all or any part (equal to $2,000 or an integral
multiple of $1,000 in excess thereof) of that Holder’s Notes at a purchase price in cash equal to
101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest and
Special Interest, if any, on the Notes repurchased to the date of purchase, subject to the rights
of Holders on the relevant record date to receive interest due on the relevant interest payment
date that is on or prior to the applicable date of repurchase (the “Change of Control Payment”).
Within 30 days following any Change of Control, the Company will mail a notice to each Holder and
the Trustee describing the transaction or transactions that constitute the Change of Control and
stating:




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




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




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



61









 






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




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




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




     (7) that Holders whose Notes are being purchased only in part will be issued new Notes
equal in principal amount to the unpurchased portion of the Notes surrendered, which
unpurchased portion must be equal to $2,000 in principal amount or an integral multiple of
$1,000 in excess thereof.



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



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




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




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




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



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



     (d) The provisions described above that require the Company to make a Change of Control Offer
following a Change of Control will be applicable whether or not any other provisions of this
Indenture are applicable. Except as described in this Section 4.15 with respect to a Change
of Control, this



62









 




Indenture does not contain provisions that permit the Holders of the Notes to require that the
Company repurchase or redeem the Notes in the event of a takeover, recapitalization or similar
transaction.




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



Section 4.16 Payments for Consent.




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



Section 4.17 Additional Note Guarantees.




     If the Company or any of its Restricted Subsidiaries acquires or creates another Domestic
Subsidiary after the date of this Indenture, then that newly acquired or created Domestic
Subsidiary will become a Guarantor and execute a supplemental indenture and deliver an Opinion of
Counsel satisfactory to the Trustee within 20 Business Days of the date on which it was acquired or
created. Notwithstanding the foregoing, any Domestic Subsidiary that constitutes an Immaterial
Subsidiary need not become a Guarantor until such time as it ceases to be an Immaterial Subsidiary;
provided that the total assets of all Immaterial Subsidiaries that are not Guarantors shall not
exceed $1.0 million in the aggregate, and the total revenues for the most recent 12-month period of
all Immaterial Subsidiaries that are not Guarantors shall not exceed $1.0 million in the aggregate.
The form of such Note Guarantee is attached as Exhibit E hereto.



Section 4.18 Designation of Restricted and Unrestricted Subsidiaries.




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



     (b) Any designation of a Subsidiary of the Company as an Unrestricted Subsidiary will be
evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board
of Directors giving effect to such designation and an Officers’ Certificate certifying that such
designation



63









 




complied with the preceding conditions and was permitted by Section 4.07 hereof. If,
at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an
Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of
this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a
Restricted Subsidiary of the Company as of such date and, if such Indebtedness is not permitted to
be incurred as of such date under Section 4.09 hereof, the Company will be in default of
such covenant. The Board of Directors of the Company may at any time designate any Unrestricted
Subsidiary to be a Restricted Subsidiary of the Company; provided that such designation will be
deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company of any
outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be
permitted if (1) such Indebtedness is permitted under Section 4.09 hereof calculated on a
pro forma basis as if such designation had occurred at the beginning of the applicable four-quarter
reference period; and (2) no Default or Event of Default would be in existence following such
designation.




ARTICLE 5

SUCCESSORS




Section 5.01 Merger, Consolidation, or Sale of Assets.




     (a) The Company will not, directly or indirectly, (1) consolidate or merge with or into
another Person (whether or not the Company is the surviving corporation), or (2) sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of the properties or
assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related
transactions, to another Person, unless:




     (1) either:




     (A) the Company is the surviving corporation; or




     (B) the Person formed by or surviving any such consolidation or merger (if
other than the Company) or to which such sale, assignment, transfer, lease,
conveyance or other disposition has been made is an entity organized or existing
under the laws of the United States, any state of the United States or the District
of Columbia; and, if such entity is not a corporation, a co-obligor of the Notes is
a corporation organized or existing under any such laws;




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




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




     (4) the Company or the Person formed by or surviving any such consolidation or merger
(if other than the Company), or to which such sale, assignment, transfer, lease, conveyance
or other disposition has been made (a) would, on the date of such transaction after giving
pro forma effect thereto and any related financing transactions as if the same had occurred
at the beginning of the applicable four-quarter period be permitted to incur at least $1.00
of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in
Section 4.09(a) or (b) would (together with Restricted Subsidiaries of the Company)
have a higher Fixed Charge Coverage Ratio immediately after such transaction (after giving
pro forma effect to the



64









 







transaction as if it had occurred at the beginning of the applicable four-quarter
period) than the Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries
immediately prior to the transaction; and




     (5) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel each stating that such consolidation, merger, sale, assignment, transfer, lease,
conveyance or other disposition and any agreement delivered pursuant to clause (2) above
comply with this Section 5.01 and that all conditions precedent in this Section
5.01 relating to such transaction have been complied with.



     (b) In the event of any transaction (other than a lease) described in and complying with the
conditions listed in Section 5.01(a) in which the Company is not the surviving Person, such
surviving Person or transferee shall succeed to, and be substituted for, and may exercise every
right and power of, the Company under, and the Company shall be discharged from its Obligations
under, this Indenture, the Notes, the Collateral Documents, the Intercreditor Agreement and the
Registration Rights Agreement, with the same effect as if such successor Person had been named as
the Company herein or therein.



     (c) This Section 5.01 will not apply to any sale, assignment, transfer, conveyance,
lease or other disposition of assets between or among the Company and its Restricted Subsidiaries.



     (d) Clauses (3) and (4) of Section 5.01(a) will not apply to any merger or
consolidation of the Company with or into one of its Restricted Subsidiaries for any purpose or
with or into an Affiliate solely for the purpose of reincorporating the Company in another
jurisdiction.



ARTICLE 6

DEFAULTS AND REMEDIES



Section 6.01 Events of Default.




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




     (1) default for 30 days in the payment when due of interest (including Special
Interest, if any) on the Notes;




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




     (3) failure by the Company or any of its Restricted Subsidiaries to comply with the
provisions of Sections 4.07, 4.09, 4.10, 4.15, and
5.01 hereof for 30 days;




     (4) failure by the Company or any of its Restricted Subsidiaries to comply with any of
the other agreements in this Indenture for 60 days after written notice specifying such
failure is delivered to the Company by the Trustee or the Holders of at least 25% in
aggregate principal amount of the Notes then outstanding;




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



65









 






     (A) is caused by a failure to pay principal of , or interest or premium, if
any, on, such Indebtedness prior to the expiration of the grace period provided in
such Indebtedness on the date of such default (a “Payment Default”); or




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




and, in each case, the principal amount of any such Indebtedness, together with the principal
amount of any other such Indebtedness under which there has been a Payment Default or the
maturity of which has been so accelerated, aggregates $15.0 million or more;




     (6) failure by the Company or any of its Restricted Subsidiaries to pay final and
non-appealable judgments entered by a court or courts of competent jurisdiction aggregating
in excess of $15.0 million (net of amounts which are covered by insurance or bonded), which
judgments are not paid, discharged or stayed for a period of 60 days;




     (7) (A) breach by the Company or any of its Restricted Subsidiaries of any
representation, warranty or agreement in any Collateral Document; (B) any security interest
created by any Collateral Document ceases to be in full force and effect (except as
permitted by the terms of this Indenture or the Collateral Documents); or (C) the
repudiation by the Company or any of its Restricted Subsidiaries of any of its obligations
under any Collateral Document; provided that, in the case of clauses (A), (B) and (C), such
breach, cessation or repudiation, individually or in the aggregate, results in Collateral
having a Fair Market Value in excess of $5.0 million not being subject to a valid, perfected
security interest;




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




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




     (A) commences a voluntary case,




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




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




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




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




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



66









 






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




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




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




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



Section 6.02 Acceleration.




     (a) In the case of an Event of Default specified in clause (9) or (10) of Section
6.01, with respect to the Company, any Restricted Subsidiary of the Company that is a
Significant Subsidiary or any group of Restricted Subsidiaries of the Company that, taken together,
would constitute a Significant Subsidiary, all outstanding Notes will become due and payable
immediately without further action or notice. If any other Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in aggregate principal amount of the then
outstanding Notes may declare all the Notes to be due and payable immediately. Upon any such
declaration, the Notes shall become due and payable immediately.



     (b) The Holders of a majority in aggregate principal amount of the then outstanding Notes by
notice to the Trustee may, on behalf of the Holders of all of the Notes, rescind an acceleration
and its consequences or waive any existing Default or Event of Default and its consequences under
this Indenture except a continuing Default or Event of Default in the payment of interest
(including Special Interest) or premium, if any, on, or the principal of, the Notes.



Section 6.03 Other Remedies.




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



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



Section 6.04 Waiver of Past Defaults.




     Holders of not less than a majority in aggregate principal amount of the then outstanding
Notes by notice to the Trustee may on behalf of the Holders of all of the Notes waive an existing
Default or Event of Default and its consequences hereunder, except a continuing Default or Event of
Default in the payment of the principal of, premium and Special Interest, if any, or interest on,
the Notes (including in



67









 




connection with an offer to purchase); provided, however, that the Holders of a majority in
aggregate principal amount of the then outstanding Notes may rescind an acceleration and its
consequences, including any related payment default that resulted from such acceleration. Upon any
such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be
deemed to have been cured for every purpose of this Indenture; but no such waiver shall extend to
any subsequent or other Default or impair any right consequent thereon.




Section 6.05 Control by Majority.




     Holders of a majority in aggregate principal amount of the then outstanding Notes may direct
the time, method and place of conducting any proceeding for exercising any remedy available to the
Trustee and Collateral Agent, as applicable, or exercising any trust or power conferred on it.
However, the Trustee or Collateral Agent, as applicable, may refuse to follow any direction that
conflicts with law or this Indenture, the Intercreditor Agreement or the Collateral Documents that
the Trustee or Collateral Agent, as applicable, determines may be unduly prejudicial to the rights
of other Holders of Notes or that may involve the Trustee or Collateral Agent, as applicable, in
personal liability. The Trustee and the Collateral Agent may take any other action
deemed proper by the Trustee and Collateral Agent, as applicable, which is not inconsistent with
such direction.



Section 6.06 Limitation on Suits.




     Except to enforce the right to receive payment of principal, premium, if any, or interest
(including Special Interest, if any) when due in accordance with Section 6.07 hereof, no
Holder of a Note may pursue any remedy with respect to this Indenture or the Notes unless:




     (1) such Holder has previously given the Trustee notice that an Event of Default is
continuing;




     (2) Holders of at least 25% in aggregate principal amount of the then outstanding Notes
have requested the Trustee to pursue the remedy;




     (3) such Holders have offered the Trustee security or indemnity satisfactory to the
Trustee against any loss, liability or expense;




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




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



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



Section 6.07 Rights of Holders of Notes to Receive Payment.




     Notwithstanding any other provision of this Indenture, the right of any Holder of a Note to
receive payment of principal, premium and Special Interest, if any, and interest on the Note, on or
after the respective due dates expressed in the Note (including in connection with an offer to
purchase), or to bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of such Holder; provided that a Holder
shall not have the right to institute



68









 




any such suit for the enforcement of payment if and to the extent that the institution or
prosecution thereof or the entry of judgment therein would, under applicable law, result in the
surrender, impairment, waiver or loss of the Lien of this Indenture upon any property subject to
such Lien.




Section 6.08 Collection Suit by Trustee.




     If an Event of Default specified in Section 6.01(1) or (2) hereof occurs and
is continuing, the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Notes, the whole amount then due and payable on such Notes for the principal of,
premium and Special Interest, if any, and interest remaining unpaid on, the Notes and interest on
overdue principal and premium and, to the extent lawful, interest and Special Interest and such
further amount as shall be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel.



     If the Company fails to pay such amount forthwith upon such demand, the Trustee may institute
a judicial proceeding for the collection of the sums so due and unpaid, and may prosecute such
proceedings to the judgment or final decree, and may enforce the same against the Company or any
other obligor upon the Notes and collect the moneys adjudged or decreed to be payable in the manner
provided by law out the property of the Company or any other obligor upon the Notes, wherever
situated.



Section 6.09 Trustee May File Proofs of Claim.




     The Trustee is authorized to file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel) and the Holders of the Notes allowed in any judicial proceedings relative to the Company
(or any other obligor upon the Notes), its creditors or its property and shall be entitled and
empowered to collect, receive and distribute any money or other property payable or deliverable on
any such claims and any custodian in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee, and in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the Trustee and Collateral Agent
and its respective agents and counsel (or their respective agents and counsel if the Trustee and
Collateral Agent are different Persons), and any other amounts due the Trustee under Section
7.07 hereof and the Collateral Agent under Section 10.11 hereof. To the extent that
the payment of any such compensation, expenses, disbursements and advances of the Trustee and
Collateral Agent, its agents and counsel (or their respective agents and counsel if the Trustee and
Collateral Agent are different Persons), and any other amounts due the Trustee under Section
7.07 hereof or the Collateral Agent under Section 10.11 hereof out of the estate in any
such proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien on,
and shall be paid out of, any and all distributions, dividends, money, securities and other
properties that the Holders may be entitled to receive in such proceeding whether in liquidation or
under any plan of reorganization or arrangement or otherwise. Nothing herein contained shall be
deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder
in any such proceeding.



Section 6.10 Priorities.




     Subject to the terms of the Intercreditor Agreement, if the Trustee collects any money or
other property pursuant to this Article 6, including pursuant to the Collateral Documents, it shall
pay out the money or other property in the following order:



69









 






     First: to the Trustee, the Collateral Agent, and their respective agents and attorneys
for amounts due under Section 7.07 and Section 10.11 hereof, including
payment of all compensation, reasonable expenses and liabilities incurred, and all advances
made, by the Trustee and the Collateral Agent and the costs and expenses of collection;




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




     Third: any surplus remaining after the payment in full in cash of all the Obligations
under the Notes shall be paid to the Company or to such party as a court of competent
jurisdiction shall direct.



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



Section 6.11 Undertaking for Costs.




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



Section 6.12 Restoration of Rights and Remedies.




     If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy
under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to the Trustee or to such Holder, then and in every case the Company, the
Trustee and the Holder shall, subject to any determination in such proceeding, be restored
severally and respectively to their former positions hereunder.



ARTICLE 7

TRUSTEE




Section 7.01 Duties of Trustee.




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



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




     (1) the duties of the Trustee will be determined solely by the express provisions of
this Indenture and the Trustee need perform only those duties that are specifically set
forth in this



70









 







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




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



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




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




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




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



     (d) Whether or not therein expressly so provided, every provision of this Indenture, the
Collateral Documents and the Intercreditor Agreement that in any way relates to the Trustee is
subject to this Section 7.01.



     (e) No provision of this Indenture will require the Trustee to expend or risk its own funds or
incur any financial liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability is not reasonably assured to it.



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



Section 7.02 Rights of Trustee.




     (a) The Trustee may conclusively rely and shall be fully protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture or other paper or document believed by it to be
genuine and to have been signed or presented by the proper Person. The Trustee need not
investigate any fact or matter stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture or other paper or
document, but the Trustee, in its reasonable discretion, may make such further inquiry or
investigation into such facts or matters as it reasonably may see fit, and if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or attorney, and shall have reasonable
access to the premises of the Company during normal business hours in connection with such
examination in a manner not to disrupt the normal business operations of the Company.



     (b) Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate
or an Opinion of Counsel or both. The Trustee will not be liable for any action it takes or omits
to take in



71









 




good faith in reliance on such Officers’ Certificate or Opinion of Counsel. The Trustee may
consult with counsel and the advice of such counsel or any Opinion of Counsel will be full and
complete authorization and protection from liability in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon.




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



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



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



     (f) In no event shall the Trustee be liable to any Person for special, punitive, indirect,
consequential or incidental loss or damage of any kind whatsoever (including but not limited to
lost profits), even if the Trustee has been advised of the likelihood of such loss or damage.



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



Section 7.03 Individual Rights of Trustee.




     The Trustee in its individual or any other capacity may become the owner or pledgee of Notes
and may otherwise deal with the Company or any Affiliate of the Company with the same rights it
would have if it were not Trustee. However, in the event that the Trustee acquires any conflicting
interest it must comply with § 310(b) of the TIA. Any Agent may do the same with like rights and
duties. The Trustee is also subject to Sections 7.10 and 7.11 hereof.



Section 7.04 Trustee’s Disclaimer.




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



Section 7.05 Notice of Defaults.




     (a) If a Default or Event of Default occurs and is continuing and if it is known to a
Responsible Officer of the Trustee, the Trustee will mail to Holders of Notes a notice of the
Default or Event of Default within 90 days after it occurs, unless such Default or Event of Default
shall have been cured or waived. Except in the case of a Default or Event of Default in payment of
principal of, premium or Special Interest, if any, or interest on, any Note, the Trustee shall be
protected in withholding the notice if and so long as a committee of its Responsible Officers in
good faith determines that withholding the notice is in the interests of the Holders of the Notes.



72









 





     (b) The Trustee shall not be deemed to have notice or be charged with knowledge of any Default
or Event of Default (other than a Default or Event of Default in the payment of interest (including
Special Interest) or premium, if any, on, or the principal of, the Notes) unless a Responsible
Officer of the Trustee has actual knowledge thereof or shall have received written notice thereof
at its address set forth in Section 13.02 hereof from the Company or any Guarantor or
Holders of 25% in aggregate principal amount of the then outstanding Notes specifying the
occurrence and nature thereof and stating that such notice is a notice of default.



Section 7.06 Reports by Trustee to Holders of the Notes.




     (a) Within 60 days after each May 15 beginning with May 15, 2010, and for so long as Notes
remain outstanding, the Trustee will mail to the Holders of the Notes a report dated as of such
reporting date, in accordance with, and to the extent required by, § 313 of the TIA.



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



Section 7.07 Compensation and Indemnity.




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



     (b) The Company and the Guarantors will, jointly and severally, indemnify the Trustee against
any and all losses, liabilities or expenses incurred by it arising out of or in connection with the
acceptance or administration of its duties under this Indenture, including the costs and expenses
of enforcing this Indenture against the Company and the Guarantors (including this Section
7.07) and defending itself against any claim (whether asserted by the Company, the Guarantors,
any Holder or any other Person) or liability in connection with the exercise or performance of any
of its powers or duties hereunder and in connection with the exercise or performance of any of its
powers or duties (if any) under the Intercreditor Agreement and the Collateral Documents, except to
the extent any such loss, liability or expense may be attributable to its negligence or bad faith.
The Trustee will notify the Company promptly of any claim for which it may seek indemnity. Failure
by the Trustee to so notify the Company will not relieve the Company or any of the Guarantors of
their obligations hereunder. The Company or such Guarantor will defend the claim and the Trustee
will cooperate in the defense. The Trustee may have separate counsel and the Company will pay the
reasonable fees and expenses of such counsel. Neither the Company nor any Guarantor need pay for
any settlement made without its consent, which consent will not be unreasonably withheld.



     (c) The obligations of the Company and the Guarantors under this Section 7.07 will
survive the satisfaction and discharge of this Indenture. The obligations of the Company and the
Guarantors to the Trustee under this Section 7.07 shall survive the resignation, removal or
replacement of the Trustee to the extent that the Trustee incurred fees, reimbursable expense or
indemnifiable losses, liabilities or expenses while acting as trustee hereunder before such
resignation, removal or replacement.



73









 





     (d) To secure the Company’s and the Guarantors’ payment obligations in this Section
7.07 and Section 10.11 hereof, the Trustee will have a Lien prior to the Notes on all
money or property held or collected by the Trustee, except that held in trust to pay principal and
interest on particular Notes. Such Lien will survive the satisfaction and discharge of this
Indenture and the resignation, removal or replacement of the Trustee or Collateral Agent.



     (e) When the Trustee incurs expenses or renders services after an Event of Default specified
in Section 6.01(9) or (10) hereof occurs, the expenses and the compensation for the
services (including the fees and expenses of its agents and counsel) are intended to constitute
expenses of administration under any Bankruptcy Law.



Section 7.08 Replacement of Trustee.




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



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




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




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




     (3) a receiver of the Trustee or of its property shall have been appointed, or a
custodian or public officer takes charge of the Trustee or its property or affairs for the
purpose of rehabilitation, conservation or liquidation; or




     (4) the Trustee becomes incapable of acting.



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



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



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



     (f) A successor Trustee will deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Thereupon, the resignation or removal of the retiring Trustee will
become effective, and the successor Trustee, without any further act, deed, or conveyance, will
have all the rights,



74









 




powers, trusts and duties of the Trustee under this Indenture; but, on request of the Company
or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of
the retiring Trustee, and shall duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder, subject nevertheless to its Lien
provided for in Section 7.07 hereof. The Company will give notice of each resignation and
each removal of the Trustee and each appointment of a successor Trustee to Holders of the Notes.
Each notice shall include the name of the successor Trustee and the address of its Corporate Trust
Office. The retiring Trustee will promptly transfer all property held by it as Trustee to the
successor Trustee; provided all sums owing to the Trustee hereunder have been paid and subject to
the Lien provided for in Section 7.07 hereof. Notwithstanding replacement of the Trustee
pursuant to this Section 7.08, the Company’s obligations under Section 7.07 hereof
will continue for the benefit of the retiring Trustee.




Section 7.09 Successor Trustee by Merger, etc.




     Any entity into which the Trustee may be merged or converted or with which it may be
consolidated, or any entity resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any entity succeeding to all or substantially all of the corporate
trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such
entity shall be otherwise qualified and eligible under this Article, to the extent operative,
without the execution or filing of any paper or further act on the part of any of the parties
hereto. In the case any Notes shall have been authenticated, but not delivered, by the Trustee
then in office, any successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Notes so authenticated with the same effect as if
such successor Trustee had itself authenticated such Notes.



Section 7.10 Eligibility; Disqualification.




     (a) There will at all times be a Trustee hereunder that is an entity organized and doing
business under the laws of the United States of America or of any state thereof that is authorized
under such laws to exercise corporate trust power, that is subject to supervision or examination by
federal or state authorities and that has a combined capital and surplus of at least $25.0 million
as set forth in its most recent published annual report of condition. If at any time the Trustee
ceases to be eligible in accordance with the provisions of this Section 7.10, it shall
resign immediately in the manner and with the effect specified in this Article.



     (b) This Indenture will always have a Trustee who satisfies the requirements of TIA §
310(a)(1), (2) and (5). The Trustee shall comply with the terms of TIA § 310(b).



Section 7.11 Preferential Collection of Claims Against Company.




     The Trustee is subject to TIA § 311, excluding any creditor relationship listed in TIA §
311(b).



ARTICLE 8

LEGAL DEFEASANCE AND COVENANT DEFEASANCE




Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance.




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



75









 





Section 8.02 Legal Defeasance and Discharge.




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




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




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




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




     (4) this Article 8.



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



Section 8.03 Covenant Defeasance.




     Upon the Company’s exercise under Section 8.01 hereof of the option applicable to this
Section 8.03, the Company and each of the Guarantors will, subject to the satisfaction of
the conditions set forth in Section 8.04 hereof, be released from each of their obligations
under the covenants contained in Sections 3.09, 4.03, 4.05, 4.07,
4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.15,
4.16, 4.17 and 4.18 and clause (4) of Section 5.01 hereof with
respect to the outstanding Notes on and after the date the conditions set forth in Section
8.04 hereof are satisfied (hereinafter, “Covenant Defeasance”), and the Notes will thereafter
be deemed not “outstanding” for the purposes of any direction, waiver, consent or declaration or
act of Holders (and the consequences of any thereof) in connection with such covenants, but will
continue to be deemed “outstanding” for all other purposes hereunder (it being understood that such
Notes will not be deemed outstanding for accounting purposes). For this purpose, Covenant
Defeasance means that, with respect to the outstanding Notes and Note Guarantees, the Company and
the Guarantors may omit to comply with and will have no liability in respect of any term, condition
or limitation set forth in any such covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such covenant or by reason of any reference in any such covenant
to any other provision herein or in any other document and such omission to comply will not
constitute a Default or an Event of Default under Section 6.01 hereof, but, except as
specified above, the remainder of this Indenture and such Notes and Note Guarantees will be
unaffected thereby. In addition, upon the Company’s exercise under Section 8.01 hereof of
the option applicable to this Section 8.03, subject to the satisfaction of the conditions
set forth in Section 8.04 hereof, Sections 6.01(3) through 6.01(8) hereof
will not constitute Events of Default.



76









 





Section 8.04 Conditions to Legal or Covenant Defeasance.




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




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




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




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




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




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




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




     (4) no Default or Event of Default has occurred and is continuing on the date of such
deposit (other than a Default or Event of Default resulting from the borrowing of funds to
be applied to such deposit (and any similar concurrent deposit relating to other
Indebtedness), and the granting of Liens to secure such borrowings);




     (5) such Legal Defeasance or Covenant Defeasance will not result in a breach or
violation of, or constitute a default under, any material agreement or instrument (other
than this Indenture and the agreements governing any other Indebtedness being defeased,
discharged or replaced) to which the Company or any of the Guarantors is a party or by which
the Company or any of the Guarantors is bound;




     (6) the Company must deliver to the Trustee an Officers’ Certificate stating that the
deposit was not made by the Company with the intent of preferring the Holders of Notes over
the



77









 







other creditors of the Company with the intent of defeating, hindering, delaying or
defrauding any creditors of the Company or others; and




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



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




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



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



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



Section 8.06 Repayment to Company.




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



Section 8.07 Reinstatement.




     If the Trustee or Paying Agent is unable to apply any United States dollars or non-callable
Government Securities in accordance with Section 8.02 or 8.03 hereof, as the case
may be, by reason of



78









 




any order or judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then the Company’s and the Guarantors’ obligations under
this Indenture and the Notes and the Note Guarantees will be revived and reinstated as though no
deposit had occurred pursuant to Section 8.02 or 8.03 hereof until such time as the
Trustee or Paying Agent is permitted to apply all such money in accordance with Section
8.02 or 8.03 hereof, as the case may be; provided, however, that, if the Company makes
any payment of principal of, premium or Special Interest, if any, or interest on, any Note
following the reinstatement of its obligations, the Company will be subrogated to the rights of the
Holders of such Notes to receive such payment from the money held by the Trustee or Paying Agent.




ARTICLE 9

AMENDMENT, SUPPLEMENT AND WAIVER




Section 9.01 Without Consent of Holders of Notes.




     Notwithstanding Section 9.02, the Company, the Guarantors, the Trustee and, if
applicable, the Collateral Agent may amend or supplement this Indenture, the Notes, the Note
Guarantees or, subject to the Intercreditor Agreement, the Collateral Documents without the consent
of any Holder of Note:




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




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




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




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




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




     (6) to conform the text of this Indenture, the Note Guarantees, the Collateral
Documents or the Notes to any provision of the “Description of Notes” section of the
Offering Memorandum to the extent that such provision was intended by the Company to be a
verbatim recitation of a provision of this Indenture, the Note Guarantees, the Collateral
Documents or the Notes, which intent shall be evidenced by an Officers’ Certificate to that
effect;




     (7) to enter into additional or supplemental Collateral Documents;




     (8) to release Collateral in accordance with the terms of this Indenture and the
Collateral Documents;




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




     (10) to allow any Guarantor to execute a supplemental indenture and/or a Note Guarantee
with respect to the Notes.



79









 





     Upon the request of the Company accompanied by a resolution of its Board of Directors
authorizing the execution of any such amendment or supplement, and upon receipt by the Trustee and
the Collateral Agent, as applicable, of the documents described in Sections 7.02 and
9.06 hereof, the Trustee and the Collateral Agent, as applicable, will join with the
Company and the Guarantors in the execution of any amendment or supplement authorized or permitted
by the terms of this Indenture and to make any further appropriate agreements and stipulations that
may be therein contained, but the Trustee and the Collateral Agent, as applicable, will not be
obligated to enter into such amendment or supplement that affects its own rights, duties or
immunities under this Indenture or otherwise.



Section 9.02 With Consent of Holders of Notes.




     Except as provided below in this Section 9.02, the Company, the Trustee and the
Collateral Agent, as applicable, may amend or supplement this Indenture (including, without
limitation, Section 3.09, 4.10 and 4.15 hereof), the Notes, the Note
Guarantees, the Collateral Documents and, with the consent of the First Priority Agent under the
New Senior Secured Revolving Credit Facility, the Intercreditor Agreement with the consent of the
Holders of at least a majority in aggregate principal amount of the then outstanding Notes
(including, without limitation, Additional Notes, if any) (including, without limitation, consents
obtained in connection with a tender offer or exchange offer for, or purchase of, the Notes), and,
subject to Sections 6.04 and 6.07, any existing Default or Event of Default (other
than a Default or Event of Default in the payment of the principal of, premium or Special Interest,
if any, or interest on, the Notes, except a payment default resulting solely from an acceleration
that has been rescinded) or compliance with any provision of this Indenture, the Notes, the Note
Guarantees or, subject to the Intercreditor Agreement, the Collateral Documents may be waived with
the consent of the Holders of a majority in aggregate principal amount of the then outstanding
Notes (including, without limitation, Additional Notes, if any) (including, without limitation,
consents obtained in connection with a tender offer or exchange offer for, or purchase of, the
Notes).



     Upon the request of the Company accompanied by a resolution of its Board of Directors
authorizing the execution of any such amendment or supplement, and upon the filing with the Trustee
and the Collateral Agent, as applicable, of evidence satisfactory to the Trustee and the Collateral
Agent, as applicable, of the consent of the Holders of Notes as aforesaid, and upon receipt by the
Trustee and the Collateral Agent, as applicable, of the documents described in Sections
7.02 and 9.06 hereof, the Trustee and the Collateral Agent, as applicable, will join
with the Company in the execution of such amendment or supplement unless such amendment or
supplement affects the Trustee’s or the Collateral Agent’s, as the case may be, own rights, duties
or immunities under this Indenture or otherwise, in which case the Trustee and the Collateral
Agent, as applicable, may in its discretion, but will not be obligated to, enter into such
amendment or supplement.



     It shall not be necessary for the consent of the Holders of Notes under this Section
9.02 to approve the particular form of any proposed amendment, supplement or waiver, but it is
sufficient if such consent approves the substance thereof.



     After an amendment, supplement or waiver under this Section 9.02 becomes effective,
the Company will mail to the Holders of Notes affected thereby a notice briefly describing the
amendment, supplement or waiver. Any failure of the Company to mail such notice, or any defect
therein, will not, however, in any way impair or affect the validity of any such amendment or
supplement or waiver. Subject to Sections 6.04 and 6.07 hereof, the Holders of a
majority in aggregate principal amount of the Notes then outstanding may waive compliance in a
particular instance by the Company with any provision of this Indenture, the Notes, the Note
Guarantees or the Collateral Documents. However, without the consent of each Holder affected, an
amendment, supplement or waiver under this Section 9.02 may not (with respect to any Notes
held by a non-consenting Holder):



80









 






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




     (2) reduce the principal of or change the fixed maturity of any Note or alter the
provisions with respect to the redemption of the Notes (except as provided above with
respect to Sections 3.09, 4.10 and 4.15 hereof);




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




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




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




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




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




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




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



     Notwithstanding the foregoing, any amendment to, or waiver of, the provisions of this
Indenture or any Collateral Document that has the effect of releasing all or substantially all of
the Collateral from the Liens securing the Notes will require the consent of the Holders of at
least 662/3%% in aggregate principal amount of the Notes then outstanding.



Section 9.03 Compliance with Trust Indenture Act.




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



Section 9.04 Revocation and Effect of Consents.




     (a) Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of
a Note is a continuing consent by the Holder of a Note and every subsequent Holder of a Note or
portion of a Note that evidences the same debt as the consenting Holder’s Note, even if notation of
the consent is not made on any Note. Subject to Section 9.04(b) hereof, any such Holder of
a Note or subsequent Holder of a Note may revoke the consent as to its Note if the Trustee receives
written notice of revocation before the date the amendment, supplement or waiver becomes effective.
An amendment, supplement or waiver becomes effective in accordance with its terms and thereafter
binds every Holder.



     (b) The Company may, but shall not be obligated to, fix a record date for the purpose of
determining the Holders entitled to give their consent or take any other action required or
permitted to be



81









 




taken pursuant to this Indenture, other than the delivery of instructions by Holders to the
Trustee or Collateral Agent. If a record date is fixed, then notwithstanding the first paragraph
of this Section 9.04, those Persons who were Holders at such record date (or their duly
designated proxies), and only those Persons, shall be entitled to give such consent or to revoke
any consent previously given or to take any such action, whether or not such Persons continue to be
Holders after such record date. No such consent shall become valid or effective more than 120 days
after such record date.




Section 9.05 Notation on or Exchange of Notes.




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



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



Section 9.06 Trustee to Sign Amendments, etc.




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



ARTICLE 10




COLLATERAL AND SECURITY



Section 10.01 Grant of Security Interest.




     (a) To secure the due and punctual payment of the principal of, premium, if any, and interest
on the Notes and amounts due hereunder and under the Note Guarantees when and as the same shall be
due and payable, whether on an interest payment date, by acceleration, purchase, repurchase,
redemption or otherwise, and interest on the overdue principal of, premium, if any, and interest
(to the extent permitted by law), if any, on the Notes and the performance of all other Obligations
of the Company and the Guarantors to the Holders, the Collateral Agent or the Trustee under this
Indenture, the Collateral Documents, the Note Guarantees and the Notes, the Company and the
Guarantors hereby covenant to cause the Collateral Documents to be executed and delivered
concurrently with this Indenture. The Collateral Documents shall provide for the grant by the
Company and Guarantors party thereto to the Collateral Agent of security interests in the
Collateral subject to the terms of the Intercreditor Agreement.



     (b) Each Holder, by its acceptance of a Note, (i) appoints the Collateral Agent to act as its
agent under this Indenture, the Collateral Documents and the Intercreditor Agreement (and by its
signature below, the Collateral Agent accepts such appointment), (ii) authorizes the Collateral
Agent to enter into the Collateral Documents to which it is a party and the Intercreditor
Agreement, to take such action on its behalf and in the Collateral Agent’s designated capacity
under the provisions of this



82









 




Indenture, the Intercreditor Agreement and the Collateral Documents, and to perform its
obligations and exercise its rights expressly designated to it hereunder and thereunder in
accordance therewith, and (iii) consents and agrees to the terms of the Intercreditor Agreement and
each Collateral Document, as the same may be in effect or may be amended, restated, supplemented or
otherwise modified from time to time in accordance with their respective terms. Each Holder agrees
that any action taken by the Collateral Agent in accordance with the provisions of this Indenture,
the Intercreditor Agreement and the Collateral Documents, and the exercise by the Collateral Agent
of any rights or remedies set forth herein and therein, together with all other powers reasonably
incidental thereto, shall be authorized and binding upon all Holders. The duties of the Collateral
Agent shall be ministerial and administrative in nature, and the Collateral Agent shall not have a
trust relationship with any Holder, obligor or any other Person by reason of this Indenture, the
Intercreditor Agreement or any of the Collateral Documents.




     (c) The Collateral Agent shall not have any duties or responsibilities except those expressly
set forth in this Indenture, the Intercreditor Agreement and the Collateral Documents to which the
Collateral Agent is a party, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Indenture, the Intercreditor Agreement or the
Collateral Documents or otherwise exist on the part of the Collateral Agent. The conferral upon
the Collateral Agent of any right shall not imply a duty on the Collateral Agent’s part to exercise
such right.



     (d) The Collateral Agent may perform its duties under this Indenture, the Intercreditor
Agreement and the Collateral Documents to which the Collateral Agent is a party by or through
receivers, agents, attorneys-in-fact and employees. The Collateral Agent may consult with and
employ legal counsel, and shall be entitled to act upon, and shall be fully protected in taking
action in reliance upon any advice or opinion given by legal counsel.



     (e) The Collateral Agent shall be entitled to rely, and shall be fully protected in relying,
upon any note, writing, resolution, consent, certificate, affidavit, letter, certification,
statement, notice or other communication, document or conversation (including those by telephone or
e-mail) believed by it to be genuine and correct and to have been signed, sent or made by the
proper Person, and upon the advice and statements of legal counsel (including, without limitation,
counsel to the Company or any obligor). The Collateral Agent shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond, debenture or other
paper or document. The Collateral Agent shall have no liability for failing or refusing to take
any action under this Indenture, the Intercreditor Agreement or the Collateral Documents unless it
shall first receive such advice, direction, instruction or concurrence as is required hereunder;
and the Collateral Agent has the right to seek instructions before acting or electing not to act
under this Indenture, the Intercreditor Agreement and/or the Collateral Documents. The Collateral
Agent shall in all cases have no liability in acting, or refraining from acting, under this
Indenture, the Intercreditor Agreement and the Collateral Documents in accordance with a direction
or instruction from the Company or Trustee or the Holders of a majority in aggregate principal
amount of the then outstanding Notes, as applicable, and such direction or instruction and any
action taken or failure to act pursuant thereto shall be binding upon all the Holders.



     (f) The Collateral Agent shall not be deemed to have knowledge of any Default or Event of
Default unless a responsible officer of the Collateral Agent has received written notice from the
Company, the Trustee or the Holders of 25% in aggregate principal amount of the then outstanding
Notes specifying the occurrence and nature thereof and stating that such notice is a notice of
default.



     (g) The Collateral Agent shall not be liable for any action taken or omitted to be taken by it
in connection with this Indenture, the Intercreditor Agreement or any Collateral Documents or
instrument referred to or provided for herein or therein, except to the extent that any of the
foregoing are found by a



83









 




final, nonappealable decision of a court of competent jurisdiction to have resulted from its
own gross negligence or willful misconduct. The Collateral Agent does not assume any
responsibility for any failure or delay in performance or any breach by the Company or any obligor
of any obligations under this Indenture, the Intercreditor Agreement and the Collateral Documents.
The Collateral Agent shall not be responsible to the Holders or any other Person for any recitals,
statements, information, representations or warranties contained in any Collateral Documents or in
any certificate, report, statement, or other document referred to or provided for in, or received
by the Collateral Agent under or in connection with, this Indenture, the Intercreditor Agreement or
any Collateral Document; the execution, validity, genuineness, effectiveness or enforceability of
the Intercreditor Agreement and any Collateral Documents; the genuineness, enforceability,
collectability, value, sufficiency, location or existence of any Collateral, or the validity,
effectiveness, enforceability, sufficiency, extent, perfection or priority of any Lien therein; the
validity, enforceability or collectability of any Obligations; the assets, liabilities, financial
condition, results of operations, business, creditworthiness or legal status of any obligor; or for
any failure of any obligor to perform its Obligations under this Indenture, the Intercreditor
Agreement and the Collateral Documents. The Collateral Agent shall have no obligation to any
Holder or any other Person to ascertain or inquire into the existence of any Default or Event of
Default, the observance or performance by any obligor of any terms of this Indenture, the
Intercreditor Agreement and the Collateral Documents, or the satisfaction of any conditions
precedent contained in this Indenture, the Intercreditor Agreement and any Collateral Documents.
The Collateral Agent shall not be required to initiate or conduct any litigation or collection or
other proceeding under this Indenture, the Intercreditor Agreement and the Collateral Documents
unless expressly set forth hereunder or thereunder. The Collateral Agent shall have the right at
any time to seek instructions from the Holders with respect to the administration of the
Intercreditor Agreement and the Collateral Documents. In no event shall the Collateral Agent be
liable to any Person, under this Indenture, the Intercreditor Agreement or the Collateral
Documents, for special, punitive, indirect, consequential or incidental loss or damage of any kind
whatsoever (including but not limited to lost profits), even if the Collateral Agent has been
advised of the likelihood of such loss or damage.




     (h) No provision of this Indenture, the Intercreditor Agreement or the Collateral Documents
shall require the Collateral Agent to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder or thereunder or in the exercise of any
of its rights or powers unless the Collateral Agent shall have received indemnity satisfactory to
the Collateral Agent against potential costs and liabilities incurred by the Collateral Agent
relating thereto. Notwithstanding anything to the contrary contained in this Indenture, the
Intercreditor Agreement or any of the Collateral Documents, in the event the Collateral Agent is
entitled or required to commence an action to foreclose or otherwise exercise its remedies to
acquire control or possession of the Collateral, the Collateral Agent shall not be required to
commence any such action or exercise any such remedy or to inspect or conduct any studies of any
property under the Second Priority Mortgages or take any such other action if the Collateral Agent
has determined that the Collateral Agent may incur personal liability as the result of the presence
at, or release on or from, the Collateral or such property, of any hazardous substances unless the
Collateral Agent has received security or indemnity from the Holders in an amount and in a form all
satisfactory to the Collateral Agent in its sole discretion, protecting the Collateral Agent from
all such liability. The Collateral Agent shall at any time be entitled to cease taking any action
described above if it no longer reasonably deems any indemnity, security or undertaking from the
Company or the Holders to be sufficient.



     (i) The parties hereto and the Holders hereby agree and acknowledge that the Collateral Agent
shall not assume, be responsible for or otherwise be obligated for any liabilities, claims, causes
of action, suits, losses, allegations, requests, demands, penalties, fines, settlements, damages
(including foreseeable and unforeseeable), judgments, expenses and costs (including but not limited
to, any remediation, corrective action, response, removal or remedial action, or investigation,
operations and



84









 




maintenance or monitoring costs, for personal injury or property damages, real or personal) of
any kind whatsoever, pursuant to any environmental law as a result of this Indenture, the
Intercreditor Agreement, the Collateral Documents or any actions taken pursuant hereto or thereto.
Further, the parties hereto and the Holders hereby agree and acknowledge that in the exercise of
its rights under this Indenture, the Intercreditor Agreement and the Collateral Documents, the
Collateral Agent may hold or obtain indicia of ownership primarily to protect the security interest
of the Collateral Agent in the Collateral, including without limitation the properties under the
Mortgages, and that any such actions taken by the Collateral Agent shall not be construed as or
otherwise constitute any participation in the management of such Collateral, including without
limitation the properties under the Mortgages, as those terms are defined in Section 101(20)(E) of
the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601 et
seq., as amended.




     (j) Upon the receipt by the Collateral Agent of a written request of the Company signed by two
Officers (an “Intercreditor Order”), the Collateral Agent is hereby authorized to execute and enter
into, and shall execute and enter into, without the further consent of any Holder, the
Intercreditor Agreement. Such Intercreditor Order shall (i) state that it is being delivered to
the Collateral Agent pursuant to, and is an Intercreditor Order referred to in, this Section
10.01(j), and (ii) instruct the Collateral Agent to execute and enter into the Intercreditor
Agreement.



Section 10.02 Recording and Opinions.




     (a) The Company shall, and shall cause each of its Restricted Subsidiaries to, at its sole
cost and expense, take or cause to be taken such actions as may be required by the Collateral
Documents, to perfect, maintain (with the priority required under the Collateral Documents and
Intercreditor Agreement), preserve and protect the valid and enforceable, perfected (except as
expressly provided herein or therein) security interests in and on all the Collateral granted by
the Collateral Documents in favor of the Collateral Agent as security for the Obligations contained
in this Indenture, the Notes, the Note Guarantees and the Collateral Documents, superior to and
prior to the rights of all third Persons (other than as set forth in the Intercreditor Agreement),
and subject to no other Liens, including without limitation, (i) the filing of financing
statements, continuation statements, collateral assignments and any instruments of further
assurance, in such manner and in such places as may be required by law to preserve and protect
fully the rights of the Holders, the Collateral Agent, and the Trustee under this Indenture and the
Collateral Documents to all property comprising the Collateral, and (ii) the delivery of the
certificates evidencing the securities pledged under the Second Priority Security Agreement, duly
endorsed in blank or accompanied by undated stock powers or other instruments of transfer executed
in blank, it being understood that concurrently with the execution of this Indenture the Company
and its Restricted Subsidiaries have delivered financing statements for filing by the Initial
Purchasers or their agents. The Company shall from time to time promptly pay all financing and
continuation statement recording and/or filing fees, charges and recording and similar taxes
relating to this Indenture, the Collateral Documents and any amendments hereto or thereto and any
other instruments of further assurance required pursuant hereto or thereto.



     (b) The Company shall furnish to the Trustee and the Collateral Agent (if other than the
Trustee), on or within one month of July 15 of each year, commencing July 15, 2010, an Opinion of
Counsel in compliance with TIA § 314(b).



Section 10.03 Release of Collateral.




     (a) Subject to the Intercreditor Agreement, the Collateral Agent shall not at any time release
the Collateral from the security interests created by the Collateral Documents unless such release
is expressly in accordance with the provisions of this Indenture and the applicable Collateral
Documents.



85









 





     (b) At any time when a Default or Event of Default has occurred and is continuing and the
maturity of the Notes has been accelerated (whether by declaration or otherwise), no release of the
Collateral pursuant to the provisions of this Indenture, the Collateral Documents or the
Intercreditor Agreement shall be effective as against the Holders, the Collateral Agent or the
Trustee.



     (c) The release of any Collateral from the terms of the Collateral Documents shall not be
deemed to impair the security under this Indenture in contravention of the provisions hereof if and
to the extent the Collateral is released pursuant to this Indenture and the Collateral Documents.
To the extent applicable, the Company shall cause § 313(b), relating to reports, and § 314(d) of
the TIA relating to the release of property (other than the release of current assets in the
ordinary course of business) from the security interests created by this Indenture and the
Collateral Documents to be complied with; provided, that any certificate or opinion required by
§314(d) of the TIA may be made solely by an Officer of the Company.



Section 10.04 Specified Releases of Collateral.




     (a) Collateral may be released from the Lien and security interest created by the Collateral
Documents at any time or from time to time in accordance with the provisions of the Collateral
Documents and the Intercreditor Agreement or as provided in this Indenture. Upon the request of
the Company, whether prior to or after the Discharge of First Priority Claims, the Company and the
Guarantors will be entitled to releases of assets included in the Collateral from the Liens
securing the Obligations under the Notes and the Note Guarantees, and the Collateral Agent shall
release the same from such Liens, under any one or more of the following circumstances:




     (1) to enable the Company or a Guarantor to consummate asset sales and dispositions
permitted or not prohibited under Section 4.10 hereof, in each case to a Person
other than the Company or a Guarantor or any of their respective Restricted Subsidiaries;
provided that such Liens will not be released if such sale or disposition is subject to
Section 5.01 hereof;




     (2) if any Subsidiary that is a Guarantor is released from its Note Guarantee, such
Subsidiary’s assets will also be released from the Liens securing the Notes and the Note
Guarantees;




     (3) as described under Sections 9.01 and 9.02 hereof; or




     (4) as described under Section 10.05 hereof.



     (b) Upon the request of the Company pursuant to an Officers’ Certificate and Opinion of
Counsel stating that all conditions precedent hereunder and under the Collateral Documents and
Intercreditor Agreement have been met, and any necessary or proper instruments of termination,
satisfaction or release prepared by the Company or the Guarantors, as the case may be, the
Collateral Agent, without the consent of any Holder or the Trustee and at the expense of the
Company or the Guarantors, shall execute, deliver or acknowledge such instruments or releases to
evidence the release of any Collateral permitted to be released pursuant to this Indenture, the
Collateral Documents or the Intercreditor Agreement.



Section 10.05 Release upon Satisfaction or Defeasance of all Outstanding Obligations.




     (a) The Liens on all Collateral that secure the Notes and the Note Guarantees will be
terminated and released:



86









 






     (1) if the Company exercises Legal Defeasance or Covenant Defeasance as described under
Section 8.01 hereof;




     (2) upon satisfaction and discharge of this Indenture as described under Article 12
hereof; or




     (3) upon payment in full in immediately available funds of the principal of, premium,
if any, and accrued and unpaid interest (including Special Interest, if any) on the Notes
and all other Obligations under this Indenture and the Collateral Documents that are then
due and payable.



     (b) Upon the request of the Company pursuant to an Officers’ Certificate and Opinion of
Counsel stating that all conditions precedent hereunder and under the Collateral Documents and
Intercreditor Agreement have been met, any necessary or proper instruments of termination,
satisfaction or release prepared by the Company or the Guarantors, as the case may be, the
Collateral Agent, without the consent of any Holder or the Trustee and at the expense of the
Company or the Guarantors, shall execute, deliver or acknowledge such instruments or releases to
evidence the release of any Collateral permitted to be released pursuant to this Indenture, the
Intercreditor Agreement or the Collateral Documents.



Section 10.06 Form and Sufficiency of Release.




     In the event that the Company or any Guarantor has sold, exchanged, or otherwise disposed of
or proposes to sell, exchange or otherwise dispose of any portion of the Collateral that may be
sold, exchanged or otherwise disposed of by the Company or such Guarantor to any Person other than
the Company or a Guarantor, and the Company or such Guarantor requests in writing that the Trustee
or Collateral Agent furnish a written disclaimer, release or quit-claim of any interest in such
property under this Indenture and the Collateral Documents, the Trustee and the Collateral Agent,
as applicable, shall execute, acknowledge and deliver to the Company or such Guarantor (in the form
prepared by the Company at the Company’s sole expense) such an instrument promptly after
satisfaction of the conditions set forth herein for delivery of any such release. Notwithstanding
the preceding sentence, all purchasers and grantees of any property or rights purporting to be
released herefrom shall be entitled to rely upon any release executed by the Collateral Agent
hereunder as sufficient for the purpose of this Indenture and as constituting a good and valid
release of the property therein described from the Lien of this Indenture or of the Collateral
Documents.



Section 10.07 Purchaser Protected.




     No purchaser or grantee of any property or rights purporting to be released herefrom shall be
bound to ascertain the authority of the Collateral Agent to execute the release or to inquire as to
the existence of any conditions herein prescribed for the exercise of such authority; nor shall any
purchaser or grantee of any property or rights permitted by this Indenture to be sold or otherwise
disposed of by the Company be under any obligation to ascertain or inquire into the authority of
the Company to make such sale or other disposition.



Section 10.08 Authorization of Actions to be Taken by the Collateral Agent Under the Collateral
Documents.




     (a) Subject to the provisions of the applicable Collateral Documents and the Intercreditor
Agreement, each Holder, by acceptance of the Notes, agrees that the Collateral Agent shall execute
and deliver the Intercreditor Agreement and the Collateral Documents to which it is a party and all



87









 




agreements, documents and instruments incidental thereto, and act in accordance with the terms
thereof. For the avoidance of doubt, the Collateral Agent shall have no discretion under this
Indenture, the Intercreditor Agreement or the Collateral Documents and shall not be required to
make or give any determination, consent, approval, request or direction without the written
direction of the Holders of a majority in aggregate principal amount of the then outstanding Notes,
the Trustee or the Company, as applicable.




     (b) Prior to the occurrence of an Event of Default, the Company may direct the Collateral
Agent in connection with any action required or permitted by this Indenture, the Collateral
Documents or the Intercreditor Agreement. After the occurrence of an Event of Default, the Trustee
may direct the Collateral Agent in connection with any action required or permitted by this
Indenture, the Collateral Documents or the Intercreditor Agreement.



Section 10.09 Authorization of Receipt of Funds by the Trustee Under the Collateral Documents.




     The Collateral Agent is authorized to receive any funds for the benefit of itself, the Trustee
and the Holders distributed under the Collateral Documents or the Intercreditor Agreement and to
the extent not prohibited under the Intercreditor Agreement, for turnover to the Trustee to make
further distributions of such funds to itself, the Trustee and the Holders in accordance with the
provisions of Section 6.10 hereof and the other provisions of this Indenture.



Section 10.10 Action by the Collateral Agent.




     In each case that Collateral Agent may or is required hereunder or under any Collateral
Document to take any action (an “Action”), including without limitation to make any determination,
to give consents, to exercise rights, powers or remedies, to release or sell Collateral or
otherwise to act hereunder or under any Collateral Document, the Collateral Agent may seek
direction from the Holders of a majority in aggregate principal amount of the then outstanding
Notes. The Collateral Agent shall not be liable with respect to any Action taken or omitted to be
taken by it in accordance with the direction from the Holders of a majority in aggregate principal
amount of the then outstanding Notes. If the Collateral Agent shall request direction from the
Holders of a majority in aggregate principal amount of the then outstanding Notes with respect to
any Action, the Collateral Agent shall be entitled to refrain from such Action unless and until the
Collateral Agent shall have received direction from the Holders of a majority in aggregate
principal amount of the then outstanding Notes, and the Collateral Agent shall not incur liability
to any Person by reason of so refraining.



     Notwithstanding anything to the contrary in this Indenture or any Collateral Document, in no
event shall the Collateral Agent be responsible for, or have any duty or obligation with respect
to, the recording, filing, registering, perfection, protection or maintenance of the security
interests or Liens intended to be created by this Indenture or the Collateral Documents (including
without limitation the filing or continuation of any UCC financing or continuation statements or
similar documents or instruments), nor shall the Collateral Agent be responsible for, and the
Collateral Agent makes no representation regarding, the validity, effectiveness or priority of any
of the Collateral Documents or the security interests or Liens intended to be created thereby.



Section 10.11 Compensation and Indemnity.




     (a) The Company will pay to the Collateral Agent from time to time reasonable compensation as
shall be agreed to in writing by the Company and the Collateral Agent for its acceptance of this
Indenture, the Intercreditor Agreement, the Collateral Documents and services hereunder. The
Company will reimburse the Collateral Agent promptly upon request for all reasonable disbursements,



88









 




advances and expenses incurred or made by it in addition to the compensation for its services.
Such expenses will include the reasonable compensation, disbursements and expenses of the
Collateral Agent’s agents and counsel.




     (b) The Company and the Guarantors will, jointly and severally, indemnify the Collateral Agent
against any and all losses, liabilities or expenses incurred by it arising out of or in connection
with the acceptance or administration of its duties under this Indenture, the Intercreditor
Agreement and the Collateral Documents, including (i) any claim relating to the grant to the
Collateral Agent of any Lien in any property or assets of the Company or the Guarantors and (ii)
the costs and expenses of enforcing this Indenture, the Intercreditor Agreement and the Collateral
Documents against the Company and the Guarantors (including this Section 10.11) and
defending itself against any claim (whether asserted by the Company, the Guarantors, any Holder or
any other Person) or liability in connection with the exercise or performance of any of its powers
or duties hereunder or thereunder, except to the extent any such loss, liability or expense may be
attributable to its gross negligence or bad faith. The Collateral Agent will notify the Company
promptly of any claim for which it may seek indemnity. Failure by the Collateral Agent to so
notify the Company will not relieve the Company or any of the Guarantors of their obligations
hereunder. The Company or such Guarantor will defend the claim and the Collateral Agent will
cooperate in the defense. The Collateral Agent may have separate counsel and the Company will pay
the reasonable fees and expenses of such counsel. Neither the Company nor any Guarantor need pay
for any settlement made without its consent, which consent will not be unreasonably withheld.



     (c) The obligations of the Company and the Guarantors under this Section 10.11 will
survive the satisfaction and discharge of this Indenture and the resignation, removal or
replacement of the Collateral Agent.



Section 10.12 Resignation; Successor Collateral Agent.




     Subject to the appointment and acceptance of a successor Collateral Agent as provided below,
the Collateral Agent may resign at any time by giving notice thereof to the Company, the Trustee
and the Holders. Upon receipt of such notice, the Company shall appoint a successor Collateral
Agent. Upon acceptance by a successor Collateral Agent of an appointment to serve as Collateral
Agent hereunder and under the Intercreditor Agreement and the Collateral Documents, such successor
Collateral Agent shall thereupon succeed to and become vested with all the rights, powers, duties
and obligations of the retiring Collateral Agent without further act but the retiring Collateral
Agent shall continue to have the benefits of the compensation, reimbursement and indemnification
set forth in this Indenture and the Collateral Documents. Notwithstanding any Collateral Agent’s
resignation, the provisions of this Article 10 shall continue in effect for its benefit with
respect to any actions taken or omitted to be taken by it while Collateral Agent. Any successor to
Wilmington Trust FSB by merger or acquisition of stock or acquisition of the corporate trust
business shall continue to be Collateral Agent hereunder without further act on the part of the
parties hereto, unless such successor resigns as provided above.



ARTICLE 11




NOTE GUARANTEES



Section 11.01 Guarantee.




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



89









 






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




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



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



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



     (c) If any Holder or the Trustee is required by any court or otherwise to return to the
Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in
relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such
Holder, this Note Guarantee, to the extent theretofore discharged, will be reinstated in full force
and effect.



     (d) Each Guarantor agrees that it will not be entitled to any right of subrogation in relation
to the Holders in respect of any obligations guaranteed hereby until payment in full of all
obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on
the one hand, and the Holders and the Trustee, on the other hand, (1) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes
of this Note Guarantee, notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (2) in the event of any
declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations
(whether or not due and payable) will forthwith become due and payable by the Guarantors for the
purpose of this Note Guarantee. The Guarantors will have the right to seek contribution from any
non-paying Guarantor so long as the exercise of such right does not impair the rights of the
Holders under the Note Guarantee.



Section 11.02 Limitation on Guarantor Liability.




     Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the
intention of all such parties that the Note Guarantee of such Guarantor not constitute a fraudulent
transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the
Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to any
Note Guarantee. To effectuate the foregoing intention, the Trustee, the Collateral Agent, the
Holders and the Guarantors



90









 




hereby irrevocably agree that the obligations of such Guarantor will be limited to the maximum
amount that will, after giving effect to such maximum amount and all other contingent and fixed
liabilities of such Guarantor that are relevant under such laws, and after giving effect to any
collections from, rights to receive contribution from or payments made by or on behalf of any other
Guarantor in respect of the obligations of such other Guarantor under this Article 11, result in
the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer
or conveyance.




Section 11.03 Execution and Delivery of Note Guarantee.




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



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



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



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



     In the event that the Company or any of its Restricted Subsidiaries creates or acquires any
Domestic Subsidiary after the date of this Indenture, if required by Section 4.17 hereof,
the Company will cause such Domestic Subsidiary to comply with the provisions of Section
4.17 hereof and this Article 11, to the extent applicable.



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




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




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




     (2) either:




     (A) the Person acquiring the property in any such sale or disposition or the
Person formed by or surviving any such consolidation or merger assumes all the
obligations of that Guarantor under its Note Guarantee, this Indenture, the
Registration Rights Agreement, the Collateral Documents and the Intercreditor
Agreement pursuant to a supplemental indenture and appropriate Collateral Documents;
or




     (B) the Net Proceeds of such sale or other disposition are applied in
accordance with the applicable provisions of Section 4.10 hereof.



91









 





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



     Except as set forth in Articles 4 and 5 hereof, and notwithstanding Section
11.04(2)(a) and 11.04(2)(b) hereof, nothing contained in this Indenture or in any of
the Notes will prevent any consolidation or merger of a Guarantor with or into the Company or
another Guarantor, or will prevent any sale or conveyance of the property of a Guarantor as an
entirety or substantially as an entirety to the Company or another Guarantor.



Section 11.05 Releases.




     (a) The Note Guarantee of a Guarantor will be released, without the consent of any Holder:




     (1) in connection with any sale or other disposition of all or substantially all of the
assets of that Guarantor (including by way of merger or consolidation) to a Person that is
not (either before or after giving effect to such transaction) the Company or a Restricted
Subsidiary of the Company, if the sale or other disposition does not violate Section
4.10 hereof; provided that such Guarantor’s Note Guarantee will not be released if the
sale or other disposition is subject to Section 5.01 hereof;




     (2) in connection with any sale, issuance or other disposition of Capital Stock of that
Guarantor to a Person that is not (either before or after giving effect to such transaction)
the Company or a Restricted Subsidiary of the Company, if the sale, issuance or other
disposition does not violate Section 4.10 hereof and the Guarantor ceases to be a
Restricted Subsidiary of the Company as a result of the sale, issuance or other disposition;
provided that such Guarantor’s Note Guarantee will not be released if the sale or other
disposition is subject to Section 5.01 hereof;




     (3) if the Company designates any Restricted Subsidiary that is a Guarantor to be an
Unrestricted Subsidiary in accordance with Section 4.18 hereof;




     (4) in the event that such Guarantor was required to become a Guarantor under the
provisions of Section 4.17 hereof solely by virtue of clause (y) of the definition
of “Domestic Subsidiary,” at such time as such Guarantor shall cease to guarantee or
otherwise provide direct credit support for any Indebtedness of the Company;




     (5) upon a Legal Defeasance or Covenant Defeasance in accordance with Article 8 or
satisfaction and discharge of this Indenture in accordance with Article 12; or




     (6) in connection with an amendment of this Indenture pursuant to Sections 9.01
or 9.02 hereof.



92









 





     (b) At the Company’s written direction and expense, in the event that a Note Guarantee of a
Guarantor shall be released in accordance with this Section 11.05, the Trustee will execute
and deliver an instrument acknowledging such release in accordance with the terms of this Indenture
(in a form prepared by the Company).



     (c) Any Guarantor not released from its obligations under its Note Guarantee as provided in
this Section 11.05 will remain liable for the full amount of principal of and interest and
premium and Special Interest, if any, on the Notes and for the other Obligations of any Guarantor
under this Indenture as provided in this Article 11.



ARTICLE 12

SATISFACTION AND DISCHARGE




Section 12.01 Satisfaction and Discharge.




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




     (1) either:




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




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




     (2) in respect of Section 12.01(1)(B) hereof, no Default or Event of
Default has occurred and is continuing on the date of the deposit (other than a Default or
Event of Default resulting from the borrowing of funds to be applied to such deposit and any
similar deposit relating to other Indebtedness and, in each case, the granting of Liens to
secure such borrowings) and the deposit will not result in a breach or violation of, or
constitute a default under, any other instrument to which the Company or any Guarantor is a
party or by which the Company or any Guarantor is bound (other than with respect to the
borrowing of funds to be applied concurrently to make the deposit required to effect such
satisfaction and discharge and any similar concurrent deposit relating to other
Indebtedness, and in each case the granting of Liens to secure such borrowings);




     (3) the Company or any Guarantor has paid or caused to be paid all sums payable by it
under this Indenture; and



93









 






     (4) the Company has delivered irrevocable instructions to the Trustee under this
Indenture to apply the deposited money toward the payment of the Notes at maturity or on the
redemption date, as the case may be.


In addition, the Company must deliver an Officers’ Certificate and an Opinion of Counsel to the
Trustee stating that all conditions precedent to satisfaction and discharge have been satisfied.




     Notwithstanding the satisfaction and discharge of this Indenture, if money has been deposited
with the Trustee pursuant to subclause (B) of clause (1) of this Section 12.01, the
provisions of Sections 12.02 and 8.06 hereof will survive. In addition, nothing in
this Section 12.01 will be deemed to discharge those provisions of Section 7.07 and
10.11 hereof, that, by their terms, survive the satisfaction and discharge of this
Indenture.



Section 12.02 Application of Trust Money.




     Subject to the provisions of Section 8.06 hereof, all money and non-callable
Government Securities deposited with the Trustee pursuant to Section 12.01 hereof shall be
held in trust and applied by it, in accordance with the provisions of the Notes and this Indenture,
to the payment, either directly or through any Paying Agent (including the Company acting as its
own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal
(and premium and Special Interest, if any) and interest for whose payment such money has been
deposited with the Trustee; but such money need not be segregated from other funds except to the
extent required by law.



     If the Trustee or Paying Agent is unable to apply any money or Government Securities in
accordance with Section 12.01 hereof by reason of any legal proceeding or by reason of any
order or judgment of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, the Company’s and any Guarantor’s obligations under this Indenture
and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to
Section 11.01 hereof; provided that if the Company has made any payment of principal of,
premium or Special Interest, if any, or interest on, any Notes because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of such Notes to receive
such payment from the money or Government Securities held by the Trustee or Paying Agent.



ARTICLE 13

MISCELLANEOUS




Section 13.01 Trust Indenture Act Controls.




     If any provision of this Indenture limits, qualifies or conflicts with the duties imposed by
TIA §318(c), the imposed duties will control. Any provision of the TIA which is required to be
included in a qualified indenture, but not expressly included herein, shall be deemed to be
included by this reference.



Section 13.02 Notices.




     Any notice or communication by the Company, any Guarantor, the Trustee or the Collateral Agent
to the others is duly given if in writing and delivered in person or by first class mail
(registered or certified, return receipt requested), facsimile transmission or overnight air
courier guaranteeing next day delivery, to the others’ address:



94









 






	 	 	If to the Company and/or any Guarantor:




CPM Holdings, Inc.

2975 Airline Circle

Waterloo, IA 50703

Attention: Ted Waitman

Facsimile No.: (319) 232-2773

Telephone No.: (319) 464-8255



with a copy to:



Mayer Brown LLP

1675 Broadway

New York, NY 10019

Attention: Todd Bowen

Facsimile No.: (212) 262-1910

Telephone No.: (212) 506-2549




     If to the Trustee and Collateral Agent:


Wilmington Trust FSB

CCS-Corporate Capital Markets

50 South Sixth Street, Suite 1290

Minneapolis, MN 55402-1544

Attention: Jane Y. Schweiger

Facsimile No.: (612) 217-5651/52

Telephone No.: (612) 217-5632




     The Company, any Guarantor, the Trustee or the Collateral Agent, by notice to the others, may
designate additional or different addresses for subsequent notices or communications.



     All notices and communications (other than those sent to Holders) will be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five Business Days after being
deposited in the mail, postage prepaid, if mailed; when receipt acknowledged, if transmitted by
facsimile; and the next Business Day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next day delivery.



     Any notice or communication to a Holder will be mailed by first class mail to its address
shown on the register kept by the Registrar. Any notice or communication will also be so mailed to
any Person described in TIA § 313(c), to the extent required by the TIA. Failure to mail a notice
or communication to a Holder or any defect in it will not affect its sufficiency with respect to
other Holders.



     If a notice or communication is mailed in the manner provided above within the time
prescribed, it is duly given, whether or not the addressee receives it.



     If the Company mails a notice or communication to Holders, it will mail a copy to the Trustee
and each Agent at the same time.



     Notwithstanding any other provision of this Indenture or any Note, where this Indenture or any
Note provides for notice of any event (including any notice of redemption) to a Holder of a Global
Note



95









 




(whether by mail or otherwise), such notice shall be sufficiently given if given to the
Depositary for such Note (or its designee) pursuant to the customary procedures of such Depositary.



Section 13.03 Communication by Holders of Notes with Other Holders of Notes.




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


Section 13.04 Certificate and Opinion as to Conditions Precedent.




     Upon any request or application by the Company or any Guarantor to the Trustee or Collateral
Agent to take any action under this Indenture, the Collateral Documents or the Intercreditor
Agreement, the Company or such Guarantor, as the case may be, shall furnish to the Trustee or
Collateral Agent, as applicable:




     (1) an Officers’ Certificate in form and substance reasonably satisfactory to the
Trustee or Collateral Agent, as applicable, (which must include the statements set forth in
Section 13.05 hereof) stating that, in the opinion of the signers, all conditions
precedent and covenants, if any, provided for in this Indenture, the Collateral Documents or
the Intercreditor Agreement, as applicable, relating to the proposed action have been
satisfied; and




     (2) an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee
or Collateral Agent, as applicable, (which must include the statements set forth in
Section 13.05 hereof) stating that, in the opinion of such counsel, all such
conditions precedent and covenants, if any, have been satisfied.



Section 13.05 Statements Required in Certificate or Opinion.




     Each certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture (other than a certificate provided pursuant to TIA § 314(a)(4) or the
Officers’ Certificate required by Section 4.04 hereof) must comply with the provisions of
TIA § 314(e) and must include:




     (1) a statement that each individual signing such certificate or opinion has read such
covenant or condition;




     (2) a brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion are based;




     (3) a statement that, in the opinion of such individual, he or she has made such
examination or investigation as is necessary to enable him or her to express an informed
opinion as to whether or not such covenant or condition has been satisfied; and




     (4) a statement as to whether or not, in the opinion of each such individual, such
condition or covenant has been satisfied;


provided, that with respect to matters of fact, an Opinion of Counsel may rely on an Officers’
Certificate or certificates of public officials.







96









 








Section 13.06 Rules by Trustee and Agents.




     The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar
or Paying Agent may make reasonable rules and set reasonable requirements for its functions.



Section 13.07 No Personal Liability of Directors, Officers, Employees and Stockholders.




     No director, officer, employee, incorporator or stockholder of the Company or any Guarantor,
as such, will have any liability for any Obligations of the Company or the Guarantors under the
Notes, this Indenture, the Note Guarantees, the Collateral Documents or for any claim based on, in
respect of, or by reason of, such Obligations or their creation. Each Holder of Notes by accepting
a Note waives and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes. The waiver may not be effective to waive liabilities
under the federal securities laws.



Section 13.08 Governing Law.




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



Section 13.09 No Adverse Interpretation of Other Agreements.




     This Indenture may not be used to interpret any other indenture, loan or debt agreement of the
Company or its Subsidiaries or of any other Person. Any such indenture, loan or debt agreement may
not be used to interpret this Indenture.



Section 13.10 Successors.




     All agreements of the Company in this Indenture and the Notes will bind its successors. All
agreements of the Trustee in this Indenture will bind its successors. All agreements of each
Guarantor in this Indenture and the Note Guarantees will bind its successors, except as otherwise
provided in Section 11.05.



Section 13.11 Severability.




     In case any provision in this Indenture or in the Notes is invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions will not in any way be
affected or impaired thereby.



Section 13.12 Counterpart Originals.




     The parties may sign any number of copies of this Indenture. Each signed copy will be an
original, but all of them together represent the same agreement.



Section 13.13 Table of Contents, Headings, etc.




     The Table of Contents, Cross-Reference Table and Headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not to be considered a part of
this Indenture and will in no way modify or restrict any of the terms or provisions hereof.



97









 





[Signatures on following page]









98









 











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



	 	 	 	 	 
	 	CPM HOLDINGS, INC.

 	 
	 	By:  	/s/ Douglas Ostrich	 
	 	 	Name:  	Douglas Ostrich	 
	 	 	Title:  	Chief Financial Officer	 
	 
	 	CPM ACQUISITION CORP.

 	 
	 	By:  	/s/ Douglas Ostrich	 
	 	 	Name:  	Douglas Ostrich	 
	 	 	Title:  	Secretary	 
	 
	 	CROWN ACQUISITION CORP.

 	 
	 	By:  	/s/ Douglas Ostrich	 
	 	 	Name:  	Douglas Ostrich	 
	 	 	Title:  	Secretary	 
	 
	 	CPM WOLVERINE PROCTOR, LLC

 	 
	 	By:  	/s/ Douglas Ostrich	 
	 	 	Name:  	Douglas Ostrich	 
	 	 	Title:  	Manager	 
	 
	 	CROWN IRON WORKS COMPANY

 	 
	 	By:  	/s/ Douglas Ostrich	 
	 	 	Name:  	Douglas Ostrich	 
	 	 	Title:  	Secretary	 
	 




 









 





	 	 	 	 	 
	 	CROWN BIOFUELS, LLC

 	 
	 	By:  	/s/ Douglas Ostrich	 
	 	 	Name:  	Douglas Ostrich	 
	 	 	Title:  	Secretary	 
	 
	 	CPM SA LLC

 	 
	 	By:  	/s/ Douglas Ostrich	 
	 	 	Name:  	Douglas Ostrich	 
	 	 	Title:  	Authorized Signatory	 
	 




 









 





	 	 	 	 	 
	 	TRUSTEE AND COLLATERAL AGENT



WILMINGTON TRUST FSB, as trustee and collateral agent

 	 
	 	By:  	/s/ Jane Schweiger	 
	 	 	Name:  	Jane Schweiger	 
	 	 	Title:  	Vice President	 
	 




 












 





[Face of Note]




THIS NOTE WAS ISSUED WITH ORIGINAL ISSUE DISCOUNT (AS DEFINED IN § 1273(A) OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED, AND TREASURY REGULATIONS § 1.1273-1 PROMULGATED THEREUNDER). WITH
RESPECT TO THE NOTES, CPM HOLDINGS, INC. (THE “COMPANY”) AGREES TO PROVIDE TO HOLDERS OF NOTES,
UPON WRITTEN REQUEST, THE ISSUE PRICE, AMOUNT OF ORIGINAL ISSUE DISCOUNT, ISSUE DATE AND YIELD TO
MATURITY. ANY SUCH WRITTEN REQUEST SHOULD BE SENT TO THE CHIEF FINANCIAL OFFICER OF THE COMPANY AT
THE FOLLOWING ADDRESS: CPM HOLDINGS, INC., 2975 AIRLINE CIRCLE, WATERLOO, IA 50703.




CUSIP/CINS ____________




105⁄8% Senior Secured Notes due 2014




			
	 	 	 
	No. ___
	 	$____________






CPM HOLDINGS, INC.




promises to pay to _______________ or registered assigns,




the principal sum of ______________________________ DOLLARS on September 1, 2014.




Interest Payment Dates: March 1 and September 1




Record Dates: February 15 and August 15




Dated: _______________, 20__




     Reference is made to the further provisions of this Note contained on the reverse side of this
Note, which for all purposes have the same effect as if set forth at this place.



[Signature page follows.]




A[1]-1









 








     IN WITNESS WHEREOF, CPM Holdings, Inc. has caused this Note to be signed manually or by
facsimile by its duly authorized officer as of this ___ day of _________, 20_.



	 	 	 	 	 
	 	CPM HOLDINGS, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




     This is one of the 105⁄8% Senior Secured Notes due 2014 referred to in the within-mentioned
Indenture.



	 	 	 	 	 
	Dated:  _________, 20__ 	WILMINGTON TRUST FSB, as trustee

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



A[1]-2









 






	 	 	 	 	 



[Back of Note]

105⁄8% Senior Secured Notes due 2014




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




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





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




     (1) Interest. CPM Holdings, Inc., a Delaware corporation (the “Company”),
promises to pay interest on the principal amount of this Note at 105⁄8% per annum from
________________, 20__ until maturity and shall pay the Special Interest, if any, payable
pursuant to Section 4 of the Registration Rights Agreement referred to below. The Company
will pay interest and Special Interest, if any, semi-annually in arrears on March 1 and
September 1 of each year, or if any such day is not a Business Day, on the next succeeding
Business Day (each, an “Interest Payment Date”). Interest on the Notes will accrue from the
most recent date to which interest has been paid or, if no interest has been paid, from the
date of issuance; provided that if there is no existing Default in the payment of interest,
and if this Note is authenticated between a record date referred to on the face hereof and
the next succeeding Interest Payment Date, interest shall accrue from such next succeeding
Interest Payment Date; provided further that the first Interest Payment Date shall be
_____________, 20_. The Company will pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal and premium, if any, from time to
time on demand at a rate that is 2% per annum in excess of the rate then in effect to the
extent lawful; it will pay interest (including post-petition interest in any proceeding
under any Bankruptcy Law) on overdue installments of interest and Special Interest, if any,
(without regard to any applicable grace periods) from time to time on demand at the same
rate to the extent lawful. Interest will be computed on the basis of a 360-day year of
twelve 30-day months.




     (2) Method of Payment. The Company will pay interest on the Notes (except
defaulted interest) and Special Interest, if any, to the Persons who are registered Holders
of Notes at the close of business on the February 15 or August 15 next preceding the
Interest Payment Date, even if such Notes are canceled after such record date and on or
before such Interest Payment Date, except as provided in Section 2.12 of the Indenture with
respect to defaulted interest. The Notes will be payable as to principal, premium and
Special Interest, if any, and interest at the office or agency of the Company maintained for
such purpose or, at the option of the Company, payment of interest and Special Interest, if
any, may be made by check mailed to the Holders at their addresses set forth in the register
of Holders; provided that payment by wire transfer of immediately available funds will be
required with respect to principal of and interest, premium and Special Interest, if any,
on, all Global Notes and all other Notes the Holders of which will have provided wire
transfer instructions to the Company or the Paying Agent. Such payment will be in such coin
or currency of the United States of America as at the time of payment is legal tender for
payment of public and private debts.




     (3) Paying Agent and Registrar. Initially, Wilmington Trust FSB, the Trustee
under the Indenture, will act as Paying Agent and Registrar. The Company may change any
Paying Agent or Registrar without notice to any Holder. The Company or any of its
Subsidiaries may act in any such capacity.



A[1]-3









 






     (4) Indenture and Collateral Documents. The Company issued the Notes under an
Indenture dated as of August 18, 2009 (the “Indenture”) among the Company, the Guarantors,
the Trustee and the Collateral Agent. The terms of the Notes include those stated in the
Indenture and those made part of the Indenture by reference to the TIA. The Notes are
subject to all such terms, and Holders are referred to the Indenture and the TIA for a
statement of such terms. To the extent any provision of this Note conflicts with the
express provisions of the Indenture, the provisions of the Indenture shall govern and be
controlling. The Notes are senior secured obligations of the Company. The obligations of
the Company and the Guarantors under the Notes and the Note Guarantees are secured by Liens
on the Collateral pursuant to the terms of the Collateral Documents. The Indenture does not
limit the aggregate principal amount of Notes that may be issued thereunder.




     (5) Optional Redemption. 




          (a) At any time prior to September 1, 2012, the Company may on any one or more
occasions redeem up to 35% of the aggregate principal amount of Notes issued under the
Indenture, upon not less than 30 nor more than 60 days’ notice, at a redemption price equal
to 110.625% of the principal amount of the Notes redeemed, plus accrued and unpaid interest
and Special Interest, if any, to the date of redemption (subject to the rights of Holders of
Notes on the relevant regular record date to receive interest due on the relevant interest
payment date that is on or prior to the applicable date of redemption), with the net cash
proceeds of an Equity Offering by the Company; provided that:




     (i) at least 65% of the aggregate principal amount of Notes originally
issued under the Indenture (excluding Notes held by the Company and its
Subsidiaries) remains outstanding immediately after the occurrence of such
redemption; and




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




          (b) On or after September 1, 2012, the Company may on any one or more occasions redeem
all or a part of the Notes, upon not less than 30 nor more than 60 days’ notice, at the
redemption prices (expressed as percentages of principal amount) set forth below, plus
accrued and unpaid interest and Special Interest, if any, on the Notes redeemed, to the
applicable date of redemption, if redeemed during the twelve-month period beginning on
September 1 of the years indicated below, subject to the rights of Holders of Notes on the
relevant regular record date to receive interest due on the relevant interest payment date
that is on or prior to the applicable date of redemption:



	 	 	 	 	 
	Year	 	Percentage
	2012
	 	 	105.313	%
	2013 and thereafter
	 	 	100.000	%







          (c) At any time prior to September 1, 2012, the Company may on any one or more
occasions redeem all or a part of the Notes, upon not less than 30 nor more than 60 days’
notice, at a redemption price equal to 100% of the principal amount of the Notes redeemed
plus the Applicable Premium, plus accrued and unpaid interest and Special Interest, if any,
on the Notes redeemed, to the applicable date of redemption (subject to the rights of
Holders of Notes on the relevant regular record date to receive interest due on the relevant
interest payment date that is on or prior to the applicable date of redemption).



A[1]-4









 





     Except pursuant to paragraphs 5(a) and 5(c), the Notes are not redeemable at the Company’s
option prior to September 1, 2012. The Company is not, however, prohibited under the Indenture
from acquiring the Notes by means other than a redemption, whether pursuant to open-market
transactions, tender offers or otherwise so long as such acquisition does not otherwise violate the
terms of the Indenture. Unless the Company defaults in the payment of the redemption price,
interest will cease to accrue on the Notes or portions thereof called for redemption on the
applicable redemption date.




     (6) Mandatory Redemption.



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




     (7) Repurchase at the Option of Holder.




          (a) If there is a Change of Control, the Company will be required to make an offer (a
“Change of Control Offer”) to each Holder to repurchase all or any part (equal to $2,000 or
an integral multiple of $1,000 in excess thereof) of each Holder’s Notes at a purchase price
in cash equal to 101% of the aggregate principal amount thereof plus accrued and unpaid
interest and Special Interest, if any, thereon to the date of purchase, subject to the
rights of Holders on the relevant record date to receive interest due on the relevant
interest payment date that is on or prior to the applicable date of repurchase (the “Change
of Control Payment”). Within 30 days following any Change of Control, the Company will mail
a notice to each Holder setting forth the procedures governing the Change of Control Offer
as required by the Indenture.




          (b) If the Company or a Restricted Subsidiary of the Company consummates any Asset
Sales, within five Business Days of each date on which the aggregate amount of Excess
Proceeds exceeds $15.0 million, the Company will make an offer (an “Asset Sale Offer”) to
(1) all Holders of Notes, and (2) unless such Asset Sale involves a sale of Collateral other
than Collateral that is subject to a Permitted Lien, at the option of the Company, all
holders of other Indebtedness that is pari passu with the Notes and contains provisions
similar to those set forth in the Indenture with respect to offers to purchase or redeem
with the proceeds of sales of assets, in each case to purchase, prepay or redeem the maximum
principal amount of Notes and, if applicable, such other pari passu Indebtedness that may be
purchased, prepaid or redeemed out of the Excess Proceeds. The offer price with respect to
the Notes in any Asset Sale Offer will be equal to 100% of the principal amount, plus
accrued and unpaid interest and Special Interest, if any, to the date of purchase,
prepayment or redemption, subject to the rights of Holders of Notes on the relevant regular
record date to receive interest due on the relevant interest payment date that is on or
prior to the applicable date of repurchase, prepayment or redemption, and will be payable in
cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company
may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture
(including, without limitation, the repayment of Indebtedness and other Obligations under a
Credit Facility, whether or not secured by a first priority Lien on the assets that are the
subject of such Asset Sale). If the aggregate principal amount of Notes and, if applicable,
other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of
Excess Proceeds, the Company will select the Notes and other pari passu Indebtedness to be
repurchased, prepaid or redeemed on a pro rata basis, and the Trustee will select the Notes
to be repurchased, prepaid or redeemed on a pro rata basis or by lot or by other method as
the Trustee deems fair and appropriate, in each case based on the amounts tendered or
required to be prepaid or redeemed. Upon completion of each Asset Sale Offer, the amount of
Excess Proceeds will be reset at zero. Holders of Notes that are the subject of an offer to
purchase will receive an Asset Sale Offer from the Company prior to any related purchase
date and may elect to have such Notes



A[1]-5









 







purchased by completing the form entitled “Option of Holder to Elect Purchase” attached
to the Notes.




     (8) Notice of Redemption. Notice of redemption will be mailed at least 30
days but not more than 60 days before the redemption date to each Holder whose Notes are to
be redeemed at its registered address, except that redemption notices may be mailed more
than 60 days prior to a redemption date if the notice is issued in connection with a
defeasance of the Notes or a satisfaction or discharge of the Indenture. Notes in
denominations larger than $2,000 may be redeemed in part but only in whole multiples of
$1,000, unless all of the Notes held by a Holder are to be redeemed.




     (9) Denominations, Transfer, Exchange. The Notes are in registered form
without coupons in denominations of $2,000 and integral multiples of $1,000 in excess
thereof. The transfer of Notes may be registered and Notes may be exchanged as provided in
the Indenture. The Registrar and the Trustee may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and the Company may require a Holder
to pay any taxes and fees required by law or permitted by the Indenture. The Company need
not exchange or register the transfer of any Note or portion of a Note selected for
redemption, except for the unredeemed portion of any Note being redeemed in part. Also, the
Company need not exchange or register the transfer of any Notes for a period of 15 days
before a selection of Notes to be redeemed or during the period between a record date and
the corresponding Interest Payment Date.




     (10) Persons Deemed Owners. The registered Holder of a Note may be treated as
its owner for all purposes.




     (11) Amendment, Supplement and Waiver. Subject to certain exceptions, the
Indenture, the Notes, the Note Guarantees, the Collateral Documents and, with the consent of
the First Priority Agent under the New Senior Secured Revolving Credit Facility, the
Intercreditor Agreement, may be amended or supplemented with the consent of the Holders of
at least a majority in aggregate principal amount of the then outstanding Notes, including,
without limitation, Additional Notes, if any (including, without limitation, consents
obtained in connection with a tender offer or exchange offer for, or purchase of, the
Notes), and any existing Default or Event or Default (other than a Default or Event of
Default in the payment of the principal of, premium or Special Interest, if any, or interest
on, the Notes, except a payment defaulting resulting solely from an acceleration that has
been rescinded) or compliance with any provision of the Indenture, the Notes or the Note
Guarantees may be waived with the consent of the Holders of a majority in aggregate
principal amount of the then outstanding Notes, including, without limitation, Additional
Notes, if any (including, without limitation, consents obtained in connection with a tender
offer or exchange offer for, or purchase of, the Notes). Without the consent of any Holder
of a Note, the Indenture, the Notes, the Note Guarantees or, subject to the Intercreditor
Agreement, the Collateral Documents, may be amended or supplemented (i) to cure any
ambiguity, defect or inconsistency; (ii) to provide for uncertificated Notes in addition to
or in place of certificated Notes; (iii) to provide for the assumption of the Company’s or a
Guarantor’s obligations to Holders of Notes and Note Guarantees in the case of a merger or
consolidation or sale of all or substantially all of the Company’s or such Guarantor’s
assets, as applicable; (iv) to make any change that would provide any additional rights or
benefits to the Holders of Notes or that does not adversely affect the legal rights under
the Indenture of any such Holder; (v) to comply with requirements of the SEC in order to
effect or maintain the qualification of the Indenture under the TIA; (vi) to conform the
text of the Indenture, the Note Guarantees, the Collateral Documents or the Notes to any
provision of the “Description of Notes” section of the



A[1]-6









 







Offering Memorandum to the extent that such provision was intended by the Company to be
a verbatim recitation of a provision of the Indenture, the Note Guarantees, the Collateral
Documents or the Notes, which intent shall be evidenced by an Officers’ Certificate to that
effect; (vii) to enter into additional or supplemental Collateral Documents; (viii) to
release Collateral in accordance with the terms of the Indenture and the Collateral
Documents; (ix) to provide for the issuance of Additional Notes in accordance with the
limitations set forth in the Indenture as of the date of the Indenture; or (x) to allow any
Guarantor to execute a supplemental indenture and/or a Note Guarantee with respect to the
Notes.




     Notwithstanding the foregoing, any amendment to, or waiver of, the provisions of the
Indenture or any Collateral Document that has the effect of releasing all or substantially
all of the Collateral from the Liens securing the Notes will require the consent of the
Holders of at least 662⁄3% in aggregate principal amount of the Notes then outstanding.




     (12) Defaults and Remedies. Events of Default include: (i) default for 30
days in the payment when due of interest (including Special Interest, if any) on the Notes;
(ii) default in the payment when due (at maturity, upon redemption or otherwise) of the
principal of, or premium, if any, on, the Notes; (iii) failure by the Company or any of its
Restricted Subsidiaries to comply with the provisions of Sections 4.07, 4.09, 4.10, 4.15,
and 5.01 of the Indenture for 30 days; (iv) failure by the Company or any of its Restricted
Subsidiaries to comply with any of the other agreements in the Indenture for 60 days after
written notice specifying such failure is delivered to the Company by the Trustee or the
Holders of at least 25% in aggregate principal amount of the Notes then outstanding; (v)
default under any mortgage, indenture or instrument under which there may be issued or by
which there may be secured or evidenced any Indebtedness for money borrowed by the Company
or any of its Restricted Subsidiaries (or the payment of which is guaranteed by the Company
or any of its Restricted Subsidiaries), whether such Indebtedness or Guarantee now exists,
or is created after the date of the Indenture, if that default (A) is caused by a failure to
pay principal of, or interest or premium, if any, on, such Indebtedness prior to the
expiration of the grace period provided in such Indebtedness on the date of such default (a
“Payment Default”) or (B) results in the acceleration of such Indebtedness prior to its
express maturity, and, in each case, the principal amount of any such Indebtedness, together
with the principal amount of any other such Indebtedness under which there has been a
Payment Default or the maturity of which has been so accelerated, aggregates $15.0 million
or more; (vi) failure by the Company or any of its Restricted Subsidiaries to pay final and
non-appealable judgments entered by a court or courts of competent jurisdiction aggregating
in excess of $15.0 million (net of amounts which are covered by insurance or bonded), which
judgments are not paid, discharged or stayed for a period of 60 days; (vii) (A) breach by
the Company or any of its Restricted Subsidiaries of any representation, warranty or
agreement in any Collateral Document; (B) any security interest created by any Collateral
Document ceases to be in full force and effect (except as permitted by the terms of the
Indenture or the Collateral Documents); or (C) the repudiation by the Company or any of its
Restricted Subsidiaries of any of its obligations under any Collateral Document; provided
that, in the case of clauses (A), (B) and (C), such breach, cessation or repudiation,
individually or in the aggregate, results in Collateral having a Fair Market Value in excess
of $5.0 million not being subject to a valid, perfected security interest; (viii) except as
permitted by the Indenture, any Note Guarantee is held in any judicial proceeding to be
unenforceable or invalid or ceases for any reason to be in full force and effect, or any
Guarantor, or any Person acting on behalf of any Guarantor, denies or disaffirms its
obligations under its Note Guarantee; and (ix) certain events of bankruptcy or insolvency
with respect to the Company or any of its Restricted Subsidiaries that is a Significant
Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a
Significant Subsidiary.



A[1]-7









 






If any Event of Default occurs and is continuing, the Trustee or the Holders of at
least 25% in aggregate principal amount of the then outstanding Notes may declare all the
Notes to be due and payable immediately. Notwithstanding the foregoing, in the case of an
Event of Default arising from certain events of bankruptcy or insolvency, all outstanding
Notes will become due and payable immediately without further action or notice. Holders may
not enforce the Indenture or the Notes except as provided in the Indenture. Subject to
certain limitations, Holders of a majority in aggregate principal amount of the then
outstanding Notes may direct the Trustee in its exercise of any trust or power. The Trustee
may withhold from Holders of the Notes notice of any continuing Default or Event of Default
(except a Default or Event of Default relating to the payment of principal or interest or
premium or Special Interest, if any) if it determines that withholding notice is in their
interest. The Holders of a majority in aggregate principal amount of the then outstanding
Notes by notice to the Trustee may, on behalf of the Holders of all of the Notes, rescind an
acceleration or waive any existing Default or Event of Default and its consequences under
the Indenture except a continuing Default or Event of Default in the payment of interest or
premium or Special Interest, if any, on, or the principal of, the Notes. The Company is
required to deliver to the Trustee annually a statement regarding compliance with the
Indenture, and the Company is required, upon becoming aware of any Default or Event of
Default, to deliver to the Trustee a statement specifying such Default or Event of Default.




     (13) Trustee Dealings with the Company. The Trustee, in its individual or any
other capacity, may make loans to, accept deposits from, and perform services for the
Company or its Affiliates, and may otherwise deal with the Company or its Affiliates, as if
it were not the Trustee.




     (14) No Recourse Against Others. No past, present or future director,
officer, employee, incorporator or stockholder of the Company or any of the Guarantors, as
such, will not have any liability for any obligations of the Company or the Guarantors under
the Notes, the Note Guarantees or the Indenture or for any claim based on, in respect of, or
by reason of, such obligations or their creation. Each Holder by accepting a Note waives
and releases all such liability. The waiver and release are part of the consideration for
the issuance of the Notes.




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




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




     (17) Additional Rights of Holders of Restricted Global Notes and Restricted
Definitive Notes. In addition to the rights provided to Holders of Notes under the
Indenture, Holders of Restricted Global Notes and Restricted Definitive Notes originally
issued on the date of the Indenture will have all the rights set forth in the Registration
Rights Agreement dated as of August 18, 2009, among the Company, the Guarantors and
Jefferies & Company, Inc., as representative of the Initial Purchasers or, in the case of
Additional Notes (if any), Holders of Restricted Global Notes and Restricted Definitive
Notes will have the rights set forth in one or more registration rights agreements, if any,
among the Company, the Guarantors and the other parties thereto, relating to rights given by
the Company and the Guarantors to the purchasers of any Additional Notes (collectively, the
“Registration Rights Agreement”). Pursuant to the terms of the Registration Rights
Agreement, the Company will be obligated to consummate an Exchange Offer. Upon such
Exchange Offer, the Holders of Notes shall have the right, subject to



A[1]-8









 







compliance with securities laws, to exchange such Notes for Exchange Notes in like
principal amount and having terms identical in all material respects to the Initial Notes
and/or Additional Notes, if any; provided, that the form of the Exchange Notes shall include
such variations as are permitted or required by the Registration Rights Agreement. The
Holders of Notes shall be entitled to receive Special Interest in the event such Exchange
Offer is not consummated pursuant to and in accordance with the terms and conditions of the
Registration Rights Agreement.




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




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



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



CPM Holdings, Inc.

2975 Airline Circle

Waterloo, IA 50703

Attention: Ted Waitman




A[1]-9









 








Assignment Form




     To assign this Note, fill in the form below:



I or we assign and transfer this Note to:
 





(Insert assignee’s legal name)




 

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




 





 





 





 




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



and irrevocably appoint

 

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




Date: _______________




Your Signature:                                                                      

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




Signature Guarantee*: _________________________




     In connection with any transfer of this Note occurring prior to the date which is the earlier
of (i) the date of the declaration by the SEC of the effectiveness of a registration statement
under the U.S. Securities Act of 1933, as amended (the “Securities Act”), covering resales
of this Note (which effectiveness shall not have been suspended or terminated at the date of the
transfer) and (ii) __________, 20__, the undersigned confirms that it has not utilized any general
solicitation or general advertising in connection with the transfer and that this Note is being
transferred:



[Check One]




	 	 	 

	(1) ______

	 	to the Company or a subsidiary thereof; or
	 
	 	 
	(2) ______

	 	pursuant to and in compliance with Rule 144A under the Securities Act; or
	 
	 	 
	(3) ______

	 	to an institutional “accredited investor” (as defined in Rule 501(a)(1), (2),
(3) or (7) under the Securities Act) that has furnished to the Trustee a signed letter
containing certain representations and agreements (the form of which letter can be obtained
from the Company); or
	 
	 	 
	(4) ______

	 	outside the United States to a person other than a “U.S. person” in compliance
with Rule 904 of Regulation S under the Securities Act; or
	 
	 	 
	(5) ______

	 	pursuant to the exemption from registration provided by Rule 144 under the
Securities Act.






A[1]-10









 





Unless one of the boxes is checked, the Trustee will refuse to register any of the Notes evidenced
by this certificate in the name of any person other than the registered Holder thereof;
provided that if box (3), (4) or (5) is checked, the Company or the Trustee may require,
prior to registering any such transfer of the Notes, in its sole discretion, such legal opinions,
certifications (including an investment letter in the case of box (3) or (4)) and other information
as the Trustee or the Company has reasonably requested to confirm that such transfer is being made
pursuant to an exemption from, or in a transaction not subject to, the registration requirements of
the Securities Act.




     If none of the foregoing boxes is checked, the Trustee or Registrar shall not be obligated to
register this Note in the name of any person other than the Holder hereof unless and until the
conditions to any such transfer of registration set forth herein and in Section 2.06 of the
Indenture shall have been satisfied.



	 	 	 	 	 

	Dated:
 


	 	 
	Signed:	

	 	 	 	 	 

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






Signature Guarantee*: __________________________






 




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





TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED




     The undersigned represents and warrants that it is purchasing this Note for its own account or
an account with respect to which it exercises sole investment discretion and that it and any such
account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities
Act and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that
it has received such information regarding the Company as the undersigned has requested pursuant to
Rule 144A or has determined not to request such information and that it is aware that the
transferor is relying upon the undersigned’s foregoing representations in order to claim the
exemption from registration provided by Rule 144A.



	 	 	 	 	 

	Dated:
	 	 	 	 
	 

	 	 
	 	 

NOTICE: To be executed by an executive officer






A[1]-11









 






OPTION OF HOLDER TO ELECT PURCHASE




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



o Section 4.10                     o Section 4.15




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



$_______________




Date: _______________




Your Signature:                                                          
             

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




Tax Identification No.:                                                             




Signature Guarantee*: _________________________






 




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




A[1]-12









 










Schedule of Exchanges of Interests in the Global Note *




     The following exchanges of a part of this Global Note for an interest in another Global
Note or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note for
an interest in this Global Note, have been made:



	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Principal Amount	 	 
	 	 	Amount of decrease in	 	Amount of increase in	 	of this Global Note	 	Signature of authorized
	 	 	Principal Amount	 	Principal Amount	 	following such	 	officer of Trustee or
	Date of Exchange	 	of this Global Note	 	of this Global Note	 	decrease (or increase)	 	Custodian
	 	 	 	 	 	 	 	 	 







 




			
	*	 	This schedule should be included only if the Note is issued in global form.




A[1]-13









 










[Face of Regulation S Temporary Global Note]




THIS NOTE WAS ISSUED WITH ORIGINAL ISSUE DISCOUNT (AS DEFINED IN § 1273(A) OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED, AND TREASURY REGULATIONS § 1.1273-1 PROMULGATED THEREUNDER). WITH
RESPECT TO THE NOTES, CPM HOLDINGS, INC. (THE “COMPANY”) AGREES TO PROVIDE TO HOLDERS OF NOTES,
UPON WRITTEN REQUEST, THE ISSUE PRICE, AMOUNT OF ORIGINAL ISSUE DISCOUNT, ISSUE DATE AND YIELD TO
MATURITY. ANY SUCH WRITTEN REQUEST SHOULD BE SENT TO THE CHIEF FINANCIAL OFFICER OF THE COMPANY AT
THE FOLLOWING ADDRESS: CPM HOLDINGS, INC., 2975 AIRLINE CIRCLE, WATERLOO, IA 50703.




CUSIP/CINS ____________




105⁄8% Senior Secured Notes due 2014




			
	 	 	 
	No. ___
	 	$____________






CPM HOLDINGS, INC.




promises to pay to ______________ or registered assigns,




the principal sum of ____________________________ DOLLARS on September 1, 2014.




Interest Payment Dates: March 1 and September 1




Record Dates: February 15 and August 15




Dated: _______________, 20__




     Reference is made to the further provisions of this Note contained on the reverse side of this
Note, which for all purposes have the same effect as if set forth at this place.



[Signature page follows.]




A2-1









 








     IN WITNESS WHEREOF, CPM Holdings, Inc. has caused this Note to be signed manually or by
facsimile by its duly authorized officer as of this ___ day of _________, 20_.



	 	 	 	 	 
	 	CPM HOLDINGS, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




     This is one of the 105⁄8% Senior Secured Notes due 2014 referred to in the within-mentioned
Indenture.



	 	 	 	 	 
	Dated:  _________, 20__ 	WILMINGTON TRUST FSB, as trustee

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



A2-2









 






	 	 	 	 	 



[Back of Regulation S Temporary Global Note]

105⁄8% Senior Secured Notes due 2014




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




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




UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY
NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.




THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), OR ANY STATE SECURITIES LAWS. NEITHER THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY
BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
REGISTRATION.




THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A “QUALIFIED
INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (B) IT IS A NON-U.S.
PURCHASER AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S
UNDER THE SECURITIES ACT, OR (C) IT IS AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF
SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT, AND (2) AGREES TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH NOTE PRIOR TO


A2-3









 







THE DATE WHICH IS ONE YEAR AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE
COMPANY WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF SUCH NOTE), ONLY (A) TO THE COMPANY OR
ANY OF ITS SUBSIDIARIES, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE
UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE
144A, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PURCHASERS THAT OCCUR OUTSIDE THE U.S. WITHIN
THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED INVESTOR”
WITHIN THE MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT
THAT IS ACQUIRING THE NOTE FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN
CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT OR (F) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE
COMPANY’S AND THE TRUSTEE’S, OR REGISTRAR’S, AS APPLICABLE, RIGHT PRIOR TO ANY SUCH OFFER, SALE OR
TRANSFER PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING
CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS NOTE IS COMPLETED
AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE OR REGISTRAR.





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




     (1) Interest. CPM Holdings, Inc., a Delaware corporation (the “Company”),
promises to pay interest on the principal amount of this Note at 105⁄8% per annum from
________________, 20__ until maturity and shall pay the Special Interest, if any, payable
pursuant to Section 4 of the Registration Rights Agreement referred to below. The Company
will pay interest and Special Interest, if any, semi-annually in arrears on March 1 and
September 1 of each year, or if any such day is not a Business Day, on the next succeeding
Business Day (each, an “Interest Payment Date”). Interest on the Notes will accrue from the
most recent date to which interest has been paid or, if no interest has been paid, from the
date of issuance; provided that if there is no existing Default in the payment of interest,
and if this Note is authenticated between a record date referred to on the face hereof and
the next succeeding Interest Payment Date, interest shall accrue from such next succeeding
Interest Payment Date; provided further that the first Interest Payment Date shall be
_____________, 20_. The Company will pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal and premium, if any, from time to
time on demand at a rate that is 2% per annum in excess of the rate then in effect to the
extent lawful; it will pay interest (including post-petition interest in any proceeding
under any Bankruptcy Law) on overdue installments of interest and Special Interest, if any,
(without regard to any applicable grace periods) from time to time on demand at the same
rate to the extent lawful. Interest will be computed on the basis of a 360-day year of
twelve 30-day months.



A2-4









 






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




     (2) Method of Payment. The Company will pay interest on the Notes (except
defaulted interest) and Special Interest, if any, to the Persons who are registered Holders
of Notes at the close of business on the February 15 or August 15 next preceding the
Interest Payment Date, even if such Notes are canceled after such record date and on or
before such Interest Payment Date, except as provided in Section 2.12 of the Indenture with
respect to defaulted interest. The Notes will be payable as to principal, premium and
Special Interest, if any, and interest at the office or agency of the Company maintained for
such purpose or, at the option of the Company, payment of interest and Special Interest, if
any, may be made by check mailed to the Holders at their addresses set forth in the register
of Holders; provided that payment by wire transfer of immediately available funds will be
required with respect to principal of and interest, premium and Special Interest, if any,
on, all Global Notes and all other Notes the Holders of which will have provided wire
transfer instructions to the Company or the Paying Agent. Such payment will be in such coin
or currency of the United States of America as at the time of payment is legal tender for
payment of public and private debts.




     (3) Paying Agent and Registrar. Initially, Wilmington Trust FSB, the Trustee
under the Indenture, will act as Paying Agent and Registrar. The Company may change any
Paying Agent or Registrar without notice to any Holder. The Company or any of its
Subsidiaries may act in any such capacity.




     (4) Indenture and Collateral Documents. The Company issued the Notes under an
Indenture dated as of August 18, 2009 (the “Indenture”) among the Company, the Guarantors,
the Trustee and the Collateral Agent. The terms of the Notes include those stated in the
Indenture and those made part of the Indenture by reference to the TIA. The Notes are
subject to all such terms, and Holders are referred to the Indenture and the TIA for a
statement of such terms. To the extent any provision of this Note conflicts with the
express provisions of the Indenture, the provisions of the Indenture shall govern and be
controlling. The Notes are senior secured obligations of the Company. The obligations of
the Company and the Guarantors under the Notes and the Note Guarantees are secured by Liens
on the Collateral pursuant to the terms of the Collateral Documents. The Indenture does not
limit the aggregate principal amount of Notes that may be issued thereunder.




     (5) Optional Redemption. 




          (a) At any time prior to September 1, 2012, the Company may on any one or more
occasions redeem up to 35% of the aggregate principal amount of Notes issued under the
Indenture, upon not less than 30 nor more than 60 days’ notice, at a redemption price equal
to 110.625% of the principal amount of the Notes redeemed, plus accrued and unpaid interest
and Special Interest, if any, to the date of redemption (subject to the rights of Holders of
Notes on the relevant regular record date to receive interest due on the relevant interest
payment date that is on or prior to the applicable date of redemption), with the net cash
proceeds of an Equity Offering by the Company; provided that:




     (i) at least 65% of the aggregate principal amount of Notes originally
issued under the Indenture (excluding Notes held by the Company and



A2-5









 







its
Subsidiaries) remains outstanding immediately after the occurrence of such
redemption; and




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




          (b) On or after September 1, 2012, the Company may on any one or more occasions redeem
all or a part of the Notes, upon not less than 30 nor more than 60 days’ notice,
at the redemption prices (expressed as percentages of principal amount) set forth
below, plus accrued and unpaid interest and Special Interest, if any, on the Notes redeemed,
to the applicable date of redemption, if redeemed during the twelve-month period beginning
on September 1 of the years indicated below, subject to the rights of Holders of Notes on
the relevant regular record date to receive interest due on the relevant interest payment
date that is on or prior to the applicable date of redemption:



	 	 	 	 	 
	Year	 	Percentage
	2012
	 	 	105.313	%
	2013 and thereafter
	 	 	100.000	%







          (c) At any time prior to September 1, 2012, the Company may on any one or more
occasions redeem all or a part of the Notes, upon not less than 30 nor more than 60 days’
notice, at a redemption price equal to 100% of the principal amount of the Notes redeemed
plus the Applicable Premium, plus accrued and unpaid interest and Special Interest, if any,
on the Notes redeemed, to the applicable date of redemption (subject to the rights of
Holders of Notes on the relevant regular record date to receive interest due on the relevant
interest payment date that is on or prior to the applicable date of redemption).



     Except pursuant to paragraphs 5(a) and 5(c), the Notes are not redeemable at the Company’s
option prior to September 1, 2012. The Company is not, however, prohibited under the Indenture
from acquiring Notes by means other than a redemption, whether pursuant to open-market
transactions, tender offers or otherwise so long as such acquisition does not otherwise violate the
terms of the Indenture. Unless the Company defaults in the payment of the redemption price,
interest will cease to accrue on the Notes or portions thereof called for redemption on the
applicable redemption date.




     (6) Mandatory Redemption.



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




     (7) Repurchase at the Option of Holder.




          (a) If there is a Change of Control, the Company will be required to make an offer (a
“Change of Control Offer”) to each Holder to repurchase all or any part (equal to $2,000 or
an integral multiple of $1,000 in excess thereof) of each Holder’s Notes at a purchase price
in cash equal to 101% of the aggregate principal amount thereof plus accrued and unpaid
interest and Special Interest, if any, thereon to the date of purchase, subject to the
rights of Holders on the relevant record date to receive interest due on the relevant
interest payment date that is on or prior to the applicable date of repurchase (the “Change
of Control Payment”). Within 30 days following any Change of Control, the Company will mail
a notice to each Holder setting forth the procedures governing the Change of Control Offer
as required by the Indenture.



A2-6









 






          (b) If the Company or a Restricted Subsidiary of the Company consummates any Asset
Sales, within five Business Days of each date on which the aggregate amount of Excess
Proceeds exceeds $15.0 million, the Company will make an offer (an “Asset Sale Offer”) to
(1) all Holders of Notes, and (2) unless such Asset Sale involves a sale of Collateral other
than Collateral that is subject to a Permitted Lien, at the option of the Company, all
holders of other Indebtedness that is pari passu with the Notes and contains provisions
similar to those set forth in the Indenture with respect to offers to purchase or redeem
with the proceeds of sales of assets, in each case to purchase, prepay or redeem the maximum
principal amount of Notes and, if applicable, such other pari passu Indebtedness that may be
purchased, prepaid or redeemed out of the Excess Proceeds. The offer price with respect to
the Notes in any Asset Sale Offer will be
equal to 100% of the principal amount, plus accrued and unpaid interest and Special
Interest, if any, to the date of purchase, prepayment or redemption, subject to the rights
of Holders of Notes on the relevant regular record date to receive interest due on the
relevant interest payment date that is on or prior to the applicable date of repurchase,
prepayment or redemption, and will be payable in cash. If any Excess Proceeds remain after
consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any
purpose not otherwise prohibited by the Indenture (including, without limitation, the
repayment of Indebtedness and other Obligations under a Credit Facility, whether or not
secured by a first priority Lien on the assets that are the subject of such Asset Sale). If
the aggregate principal amount of Notes and, if applicable, other pari passu Indebtedness
tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Company will
select the Notes and other pari passu Indebtedness to be repurchased, prepaid or redeemed on
a pro rata basis, and the Trustee will select the Notes to be repurchased, prepaid or
redeemed on a pro rata basis or by lot or by other method as the Trustee deems fair and
appropriate, in each case based on the amounts tendered or required to be prepaid or
redeemed. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be
reset at zero. Holders of Notes that are the subject of an offer to purchase will receive
an Asset Sale Offer from the Company prior to any related purchase date and may elect to
have such Notes purchased by completing the form entitled “Option of Holder to Elect
Purchase” attached to the Notes.




     (8) Notice of Redemption. Notice of redemption will be mailed at least 30
days but not more than 60 days before the redemption date to each Holder whose Notes are to
be redeemed at its registered address, except that redemption notices may be mailed more
than 60 days prior to a redemption date if the notice is issued in connection with a
defeasance of the Notes or a satisfaction or discharge of the Indenture. Notes in
denominations larger than $2,000 may be redeemed in part but only in whole multiples of
$1,000, unless all of the Notes held by a Holder are to be redeemed.




     (9) Denominations, Transfer, Exchange. The Notes are in registered form
without coupons in denominations of $2,000 and integral multiples of $1,000 in excess
thereof. The transfer of Notes may be registered and Notes may be exchanged as provided in
the Indenture. The Registrar and the Trustee may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and the Company may require a Holder
to pay any taxes and fees required by law or permitted by the Indenture. The Company need
not exchange or register the transfer of any Note or portion of a Note selected for
redemption, except for the unredeemed portion of any Note being redeemed in part. Also, the
Company need not exchange or register the transfer of any Notes for a period of 15 days
before a selection of Notes to be redeemed or during the period between a record date and
the corresponding Interest Payment Date.



A2-7









 






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




     (10) Persons Deemed Owners. The registered Holder of a Note may be treated as
its owner for all purposes.




     (11) Amendment, Supplement and Waiver. Subject to certain exceptions, the
Indenture, the Notes, the Note Guarantees, the Collateral Documents and, with the consent of
the First Priority Agent under the New Senior Secured Revolving Credit Facility, the
Intercreditor
Agreement, may be amended or supplemented with the consent of the Holders of at least a
majority in aggregate principal amount of the then outstanding Notes, including, without
limitation, Additional Notes, if any (including, without limitation, consents obtained in
connection with a tender offer or exchange offer for, or purchase of, the Notes), and any
existing Default or Event or Default (other than a Default or Event of Default in the
payment of the principal of, premium or Special Interest, if any, or interest on, the Notes,
except a payment defaulting resulting solely from an acceleration that has been rescinded)
or compliance with any provision of the Indenture, the Notes or the Note Guarantees may be
waived with the consent of the Holders of a majority in aggregate principal amount of the
then outstanding Notes, including, without limitation, Additional Notes, if any (including,
without limitation, consents obtained in connection with a tender offer or exchange offer
for, or purchase of, the Notes). Without the consent of any Holder of a Note, the
Indenture, the Notes, the Note Guarantees or, subject to the Intercreditor Agreement, the
Collateral Documents, may be amended or supplemented (i) to cure any ambiguity, defect or
inconsistency; (ii) to provide for uncertificated Notes in addition to or in place of
certificated Notes; (iii) to provide for the assumption of the Company’s or a Guarantor’s
obligations to Holders of Notes and Note Guarantees in the case of a merger or consolidation
or sale of all or substantially all of the Company’s or such Guarantor’s assets, as
applicable; (iv) to make any change that would provide any additional rights or benefits to
the Holders of Notes or that does not adversely affect the legal rights under the Indenture
of any such Holder; (v) to comply with requirements of the SEC in order to effect or
maintain the qualification of the Indenture under the TIA; (vi) to conform the text of the
Indenture, the Note Guarantees, the Collateral Documents or the Notes to any provision of
the “Description of Notes” section of the Offering Memorandum to the extent that such
provision was intended by the Company to be a verbatim recitation of a provision of the
Indenture, the Note Guarantees, the Collateral Documents or the Notes, which intent shall be
evidenced by an Officers’ Certificate to that effect; (vii) to enter into additional or
supplemental Collateral Documents; (viii) to release Collateral in accordance with the terms
of the Indenture and the Collateral Documents; (ix) to provide for the issuance of
Additional Notes in accordance with the limitations set forth in the Indenture as of the
date of the Indenture; or (x) to allow any Guarantor to execute a supplemental indenture
and/or a Note Guarantee with respect to the Notes.




     Notwithstanding the foregoing, any amendment to, or waiver of, the provisions of the
Indenture or any Collateral Document that has the effect of releasing all or substantially
all of the Collateral from the Liens securing the Notes will require the consent of the
Holders of at least 662⁄3% in aggregate principal amount of the Notes then outstanding.




     (12) Defaults and Remedies. Events of Default include: (i) default for 30
days in the payment when due of interest (including Special Interest, if any) on the Notes;
(ii) default in



A2-8









 







the payment when due (at maturity, upon redemption or otherwise) of the
principal of, or premium, if any, on, the Notes; (iii) failure by the Company or any of its
Restricted Subsidiaries to comply with the provisions of Sections 4.07, 4.09, 4.10, 4.15,
and 5.01 of the Indenture for 30 days; (iv) failure by the Company or any of its Restricted
Subsidiaries to comply with any of the other agreements in the Indenture for 60 days after
written notice specifying such failure is delivered to the Company by the Trustee or the
Holders of at least 25% in aggregate principal amount of the Notes then outstanding; (v)
default under any mortgage, indenture or instrument under which there may be issued or by
which there may be secured or evidenced any Indebtedness for money borrowed by the Company
or any of its Restricted Subsidiaries (or the payment of which is guaranteed by the Company
or any of its Restricted Subsidiaries), whether such Indebtedness or Guarantee now exists,
or is created after the date of the Indenture, if that default (A) is caused by a failure to
pay principal of, or interest or premium, if any, on, such Indebtedness prior to the
expiration of the grace period provided in such Indebtedness on the date of such default (a
“Payment Default”) or (B) results in the acceleration of such Indebtedness prior to its
express maturity, and, in each case, the principal amount of any such Indebtedness, together
with the principal amount of any other such Indebtedness under which there has been a
Payment Default or the maturity of which has been so accelerated, aggregates $15.0 million
or more; (vi) failure by the Company or any of its Restricted Subsidiaries to pay final and
non-appealable judgments entered by a court or courts of competent jurisdiction aggregating
in excess of $15.0 million (net of amounts which are covered by insurance or bonded), which
judgments are not paid, discharged or stayed for a period of 60 days; (vii) (A) breach by
the Company or any of its Restricted Subsidiaries of any representation, warranty or
agreement in any Collateral Document; (B) any security interest created by any Collateral
Document ceases to be in full force and effect (except as permitted by the terms of the
Indenture or the Collateral Documents); or (C) the repudiation by the Company or any of its
Restricted Subsidiaries of any of its obligations under any Collateral Document; provided
that, in the case of clauses (A), (B) and (C), such breach, cessation or repudiation,
individually or in the aggregate, results in Collateral having a Fair Market Value in excess
of $5.0 million not being subject to a valid, perfected security interest; (viii) except as
permitted by the Indenture, any Note Guarantee is held in any judicial proceeding to be
unenforceable or invalid or ceases for any reason to be in full force and effect, or any
Guarantor, or any Person acting on behalf of any Guarantor, denies or disaffirms its
obligations under its Note Guarantee; and (ix) certain events of bankruptcy or insolvency
with respect to the Company or any of its Restricted Subsidiaries that is a Significant
Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a
Significant Subsidiary.




If any Event of Default occurs and is continuing, the Trustee or the Holders of at
least 25% in aggregate principal amount of the then outstanding Notes may declare all the
Notes to be due and payable immediately. Notwithstanding the foregoing, in the case of an
Event of Default arising from certain events of bankruptcy or insolvency, all outstanding
Notes will become due and payable immediately without further action or notice. Holders may
not enforce the Indenture or the Notes except as provided in the Indenture. Subject to
certain limitations, Holders of a majority in aggregate principal amount of the then
outstanding Notes may direct the Trustee in its exercise of any trust or power. The Trustee
may withhold from Holders of the Notes notice of any continuing Default or Event of Default
(except a Default or Event of Default relating to the payment of principal or interest or
premium or Special Interest, if any) if it determines that withholding notice is in their
interest. The Holders of a majority in aggregate principal amount of the then outstanding
Notes by notice to the Trustee may, on behalf of the Holders of all of the Notes, rescind an
acceleration or waive any existing Default or Event of Default and its consequences under
the Indenture except a continuing Default or Event of Default in the payment of interest or
premium or Special Interest, if any, on, or the principal of, the Notes. The Company is
required to deliver to the Trustee annually a statement regarding compliance with the



A2-9









 







Indenture, and the Company is required, upon becoming aware of any Default or Event of
Default, to deliver to the Trustee a statement specifying such Default or Event of Default.




     (13) Trustee Dealings with the Company. The Trustee, in its individual or any
other capacity, may make loans to, accept deposits from, and perform services for the
Company or its Affiliates, and may otherwise deal with the Company or its Affiliates, as if
it were not the Trustee.




     (14) No Recourse Against Others. No past, present or future director,
officer, employee, incorporator or stockholder of the Company or any of the Guarantors, as
such, will not have any liability for any obligations of the Company or the Guarantors under
the Notes, the Note Guarantees or the Indenture or for any claim based on, in respect of, or
by reason of, such obligations or their creation. Each Holder by accepting a Note waives
and releases all such liability. The waiver and release are part of the consideration for
the issuance of the Notes.




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




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




     (17) Additional Rights of Holders of Restricted Global Notes and Restricted
Definitive Notes. In addition to the rights provided to Holders of Notes under the
Indenture, Holders of Restricted Global Notes and Restricted Definitive Notes originally
issued on the date of the Indenture will have all the rights set forth in the Registration
Rights Agreement dated as of August 18, 2009, among the Company, the Guarantors and
Jefferies & Company, Inc., as representative of the Initial Purchasers or, in the case of
Additional Notes (if any), Holders of Restricted Global Notes and Restricted Definitive
Notes will have the rights set forth in one or more registration rights agreements, if any,
among the Company, the Guarantors and the other parties thereto, relating to rights given by
the Company and the Guarantors to the purchasers of any Additional Notes (collectively, the
“Registration Rights Agreement”). Pursuant to the terms of the Registration Rights
Agreement, the Company will be obligated to consummate an Exchange Offer. Upon such
Exchange Offer, the Holders of Notes shall have the right, subject to compliance with
securities laws, to exchange such Notes for Exchange Notes in like principal amount and
having terms identical in all material respects to the Initial Notes and/or Additional
Notes, if any; provided, that the form of the Exchange Notes shall include such variations
as are permitted or required by the Registration Rights Agreement. The Holders of Notes
shall be entitled to receive Special Interest in the event such Exchange Offer is not
consummated pursuant to and in accordance with the terms and conditions of the Registration
Rights Agreement.




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




     (19) GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND
BE USED TO CONSTRUE THE INDENTURE, THIS NOTE AND THE



A2-10









 







NOTE GUARANTEES WITHOUT GIVING EFFECT
TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS
OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.



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



CPM Holdings, Inc.

2975 Airline Circle

Waterloo, IA 50703

Attention: Ted Waitman





A2-11











 





Assignment Form




     To assign this Note, fill in the form below:



	 	 	 

	I or we assign and transfer this Note to:
	 	 
	 

	 	 
	 

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

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







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




Date:                     




Your Signature:                                                             



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



Signature Guarantee*:                                         






 




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





     In connection with any transfer of this Note occurring prior to the date which is the earlier
of (i) the date of the declaration by the SEC of the effectiveness of a registration statement
under the U.S. Securities Act of 1933, as amended (the “Securities Act”), covering resales
of this Note (which effectiveness shall not have been suspended or terminated at the date of the
transfer) and (ii)                     , 20__, the undersigned confirms that it has not utilized any general
solicitation or general advertising in connection with the transfer and that this Note is being
transferred:



[Check One]




	 	 	 

	(6)                     

	 	to the Company or a subsidiary thereof; or
	 
	 	 
	(7)                     

	 	pursuant to and in compliance with Rule 144A under the Securities Act; or
	 
	 	 
	(8)                     

	 	to an institutional “accredited investor” (as defined in Rule 501(a)(1), (2),
(3) or (7) under the Securities Act) that has furnished to the Trustee a signed letter
containing certain representations and agreements (the form of which letter can be obtained
from the Company); or






A2-12









 







	 	 	 

	(9)                     

	 	outside the United States to a person other than a “U.S. person” in compliance
with Rule
904 of Regulation S under the Securities Act; or
	 
	 	 
	(10)                     

	 	pursuant to the exemption from registration provided by Rule 144 under the
Securities Act.






Unless one of the boxes is checked, the Trustee will refuse to register any of the Notes evidenced
by this certificate in the name of any person other than the registered Holder thereof;
provided that if box (3), (4) or (5) is checked, the Company or the Trustee may require,
prior to registering any such transfer of the Notes, in its sole discretion, such legal opinions,
certifications (including an investment letter in the case of box (3) or (4)) and other information
as the Trustee or the Company has reasonably requested to confirm that such transfer is being made
pursuant to an exemption from, or in a transaction not subject to, the registration requirements of
the Securities Act.




     If none of the foregoing boxes is checked, the Trustee or Registrar shall not be obligated to
register this Note in the name of any person other than the Holder hereof unless and until the
conditions to any such transfer of registration set forth herein and in Section 2.06 of the
Indenture shall have been satisfied.




			
	 
	Dated:      
             
             
         
	
Signed:  







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



Signature Guarantee*:                                         






 




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





TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED




     The undersigned represents and warrants that it is purchasing this Note for its own account or
an account with respect to which it exercises sole investment discretion and that it and any such
account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities
Act and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that
it has received such information regarding the Company as the undersigned has requested pursuant to
Rule 144A or has determined not to request such information and that it is aware that the
transferor is relying upon the undersigned’s foregoing representations in order to claim the
exemption from registration provided by Rule 144A.



	 	 	 	 	 	 	 
	 
	Dated:  

	 	 	 	 	 	 
	 

	 	 NOTICE: To be executed by an executive officer
	 	 






A2-13









 






Option of Holder to Elect Purchase




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



			
	 	 	 
	o Section 4.10
	 	o Section 4.15






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



$                                        




Date:                                         




	 	 	 	 	 	 	 

	 

	 	Your Signature:	 	 	 	 
	 

	 	 	 	 

	 	 
	 	 	          (Sign exactly as your name appears on the face of this Note)
	 	 	 
	 	 	Tax Identification No.: 	 	 	 
	 

	 	 	 	 

	 	 






Signature Guarantee*:                                         






 




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




A2-14









 










Schedule of Exchanges of Interests in the Regulation S Temporary
 Global Note




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



	 	 	 	 	 	 	 	 	 

	Date of Exchange
	 	Amount of decrease in

Principal Amount

of this Global Note
	 	Amount of increase in

Principal Amount

of this Global Note
	 	Principal Amount

of this Global Note

following such

decrease (or increase)
	 	Signature of authorized

officer of Trustee or

Custodian
	 
	 	 
	 	 
	 	 
	 	 







A2-15









 








EXHIBIT B




FORM OF CERTIFICATE OF TRANSFER




CPM Holdings, Inc.

2975 Airline Circle

Waterloo, IA 50703

Attention: Ted Waitman




Wilmington Trust FSB

CCS-Corporate Capital Markets

50 South Sixth Street, Suite 1290

Minneapolis, MN 55402-1544

Attention: Jane Y. Schweiger





			
	     Re:	 	105⁄8% Senior Secured Notes due 2014





     Reference is hereby made to the Indenture, dated as of August 18, 2009 (the “Indenture”),
among CPM Holdings, Inc., a Delaware corporation, as issuer (the “Company”), the Guarantors party
thereto and Wilmington Trust FSB, as trustee and collateral agent. Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.



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



[CHECK ALL THAT APPLY]




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



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



B-1









 





requirements of Rule 903(b) or Rule 904(b) of Regulation S under the Securities Act, (iii) the
transaction is not part of a plan or scheme to evade the registration requirements of the
Securities Act and (iv) if the proposed transfer is being made prior to the expiration of the
Restricted Period, the transfer is not being made to a U.S. Person or for the account or benefit of
a U.S. Person (other than an Initial Purchaser). Upon consummation of the proposed transfer in
accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note
will be subject to the restrictions on Transfer enumerated in the Private Placement Legend printed
on the Regulation S Permanent Global Note, the Regulation S Temporary Global Note and/or the
Restricted Definitive Note and in the Indenture and under the Securities Act.




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




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



or





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



or





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



or





     (d) o such Transfer is being effected to an Institutional Accredited Investor
and pursuant to an exemption from the registration requirements of the Securities Act
other than Rule 144A, Rule 144, Rule 903 or Rule 904, and the Transferor hereby further
certifies that it has not engaged in any general solicitation within the meaning of
Regulation D under the Securities Act and the Transfer complies with the transfer
restrictions applicable to beneficial interests in a Restricted Global Note or Restricted
Definitive Notes and the requirements of the exemption claimed, which certification is
supported by (1) a certificate executed by the Transferee in the form of Exhibit D to the
Indenture and (2) if such Transfer is in respect of a principal amount of Notes at the
time of transfer of less than $250,000, an Opinion of Counsel provided by the Transferor
or the Transferee (a copy of which the Transferor has attached to this certification), to
the effect that such Transfer is in compliance with the Securities Act. Upon consummation
of the proposed transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the IAI Global Note and/or the
Restricted Definitive Notes and in the Indenture and under the Securities Act.



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



B-2









 





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



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



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



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



                                                            




[Insert Name of Transferor]




	 	 	 	 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




     Dated:                     





B-3









 








ANNEX A TO CERTIFICATE OF TRANSFER





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





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




	 	 	 	 	 	 	 	 	 	 	 

	 	 	(a)	 	o     a beneficial interest in the:
	 
	 	 	 	 	 	 	 	 	 	 
	 

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

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

	 	 	 	(iii)
	 	o
	 	IAI Global Note (CUSIP _________); or	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	(b)	 	o     a Restricted Definitive Note.







	2.	 	After the Transfer the Transferee will hold:





[CHECK ONE]




	 	 	 	 	 	 	 	 	 	 	 

	 	 	(a)	 	o     a beneficial interest in the:
	 
	 	 	 	 	 	 	 	 	 	 
	 

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

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

	 	 	 	(iii)
	 	o
	 	IAI Global Note (CUSIP _________); or	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	(iv)
	 	o
	 	Unrestricted Global Note (CUSIP _________); or	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	(b)	 	o     a Restricted Definitive Note; or
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	(c)	 	o     an Unrestricted Definitive Note,
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	in accordance with the terms of the Indenture.








B-4









 








EXHIBIT C




FORM OF CERTIFICATE OF EXCHANGE




CPM Holdings, Inc.

2975 Airline Circle

Waterloo, IA 50703

Attention: Ted Waitman




Wilmington Trust FSB

CCS-Corporate Capital Markets

50 South Sixth Street, Suite 1290

Minneapolis, MN 55402-1544

Attention: Jane Y. Schweiger




Re: 105⁄8% Senior Secured Notes due 2014




     Reference is hereby made to the Indenture, dated as of August 18, 2009 (the “Indenture”),
among CPM Holdings, Inc., a Delaware corporation, as issuer (the “Company”), the Guarantors party
thereto and Wilmington Trust FSB, as trustee and collateral agent. Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.



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



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



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



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



     (c) o Check if Exchange is from Restricted Definitive Note to beneficial interest in an
Unrestricted Global Note. In connection with the Owner’s Exchange of a Restricted Definitive Note
for a beneficial interest in an Unrestricted Global Note, the Owner hereby certifies (i) the
beneficial interest is



C-1









 





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




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



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



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



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



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



                                                            




[Insert Name of Transferor]




	 	 	 	 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Dated:                                         






C-2









 








EXHIBIT D




FORM OF CERTIFICATE FROM

ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR




CPM Holdings, Inc.

2975 Airline Circle

Waterloo, IA 50703

Attention: Ted Waitman




Wilmington Trust FSB

CCS-Corporate Capital Markets

50 South Sixth Street, Suite 1290

Minneapolis, MN 55402-1544

Attention: Jane Y. Schweiger





     Re: 105⁄8% Senior Secured Notes due 2014



     Reference is hereby made to the Indenture, dated as of August 18, 2009 (the “Indenture”),
among CPM Holdings, Inc., a Delaware corporation, as issuer (the “Company”), the guarantors party
thereto and Wilmington Trust FSB, as trustee and collateral agent. Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.



     In connection with our proposed purchase of $____________ aggregate principal amount of:



     (a) o a beneficial interest in a Global Note, or



     (b) o a Definitive Note,



     we confirm that:



     1. We understand that any subsequent transfer of the Notes or any interest therein is subject
to certain restrictions and conditions set forth in the Indenture and the undersigned agrees to be
bound by, and not to resell, pledge or otherwise transfer the Notes or any interest therein except
in compliance with, such restrictions and conditions and the Securities Act of 1933, as amended
(the “Securities Act”) or any other applicable securities law.



     2. We understand that the offer and sale of the Notes have not been registered under the
Securities Act or any applicable securities law, and that the Notes and any interest therein may
not be offered or sold except as permitted in the following sentence. We agree, on our own behalf
and on behalf of any accounts for which we are acting as hereinafter stated, that if we should sell
the Notes or any interest therein, we will do so only (A) to the Company or any subsidiary thereof,
(B) in accordance with Rule 144A under the Securities Act to a “qualified institutional buyer” (as
defined therein), (C) to an institutional “accredited investor” (as defined below) that, prior to
such transfer, furnishes (or has furnished on its behalf by a U.S. broker-dealer) to you and to the
Company a signed letter substantially in the form of this letter and, if such transfer is in
respect of a principal amount of Notes, at the time of transfer of less than $250,000, an Opinion
of Counsel in form reasonably acceptable to the Company to the effect that such transfer is in
compliance with the Securities Act, (D) outside the United States in accordance with Rule 904 of
Regulation S under the Securities Act, (E) pursuant to the provisions of Rule 144 under the
Securities Act or (F) pursuant to an effective registration statement under the Securities Act, and
we further agree to provide to any Person purchasing the Definitive Note or beneficial interest in
a Global Note from us in a transaction meeting the requirements of clauses (A) through (E) of this
paragraph a notice advising such purchaser that resales thereof are restricted as stated herein.



D-1









 





     3. We understand that, on any proposed resale of the Notes or beneficial interest therein, we
will be required to furnish to you and the Company such certifications, legal opinions and other
information as you and the Company may reasonably require to confirm that the proposed sale
complies with the foregoing restrictions. We further understand that the Notes purchased by us
will bear a legend to the foregoing effect.



     4. We are an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or
(7) of Regulation D under the Securities Act) and have such knowledge and experience in financial
and business matters as to be capable of evaluating the merits and risks of our investment in the
Notes, and we and any accounts for which we are acting are each able to bear the economic risk of
our or its investment.



     5. We are acquiring the Notes or beneficial interest therein purchased by us for our own
account or for one or more accounts (each of which is an institutional “accredited investor”) as to
each of which we exercise sole investment discretion, in each case for investment only, and not
with a view to, or for the offer or sale in connection with, any distribution thereof in violation
of the Securities Act.



     You and the Company are entitled to rely upon this letter and are irrevocably authorized to
produce this letter or a copy hereof to any interested party in any administrative or legal
proceedings or official inquiry with respect to the matters covered hereby.



                                                            




[Insert Name of Accredited Investor]




	 	 	 	 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Dated:                                                             






D-2









 








EXHIBIT E




[FORM OF NOTATION OF GUARANTEE]





     For value received, each Guarantor (which term includes any successor Person under the
Indenture) has, jointly and severally, unconditionally guaranteed, to the extent set forth in the
Indenture and subject to the provisions in the Indenture dated as of August 18, 2009 (the
“Indenture”) among CPM Holdings, Inc., a Delaware corporation, (the “Company”), the Guarantors
party thereto and Wilmington Trust FSB, as trustee (in such capacity, the “Trustee”) and collateral
agent (in such capacity, the “Collateral Agent”), (a) the due and punctual payment of the principal
of, premium and Special Interest, if any, and interest on, the Notes, subject to applicable grace
periods, whether at maturity, by acceleration, redemption or otherwise, the due and punctual
payment of interest on overdue principal of and interest on the Notes, if any, if lawful, and the
due and punctual performance of all other obligations of the Company to the Holders, the Trustee or
the Collateral Agent all in accordance with the terms of the Indenture and (b) in case of any
extension of time of payment or renewal of any Notes or any of such other obligations, that the
same will be promptly paid in full when due or performed in accordance with the terms of the
extension or renewal, subject to applicable grace periods, whether at stated maturity, by
acceleration or otherwise. The obligations of the Guarantors to the Holders of Notes and to the
Trustee and Collateral Agent pursuant to this Notation of Guarantee (this “Note Guarantee”) and the
Indenture are expressly set forth in Article 11 of the Indenture and reference is hereby made to
the Indenture for the precise terms of this Note Guarantee.



     THIS IS A CONTINUING GUARANTEE AND SHALL REMAIN IN FULL FORCE AND EFFECT AND SHALL BE BINDING
UPON EACH GUARANTOR AND ITS SUCCESSORS AND ASSIGNS UNTIL FULL AND FINAL PAYMENT OF ALL OF THE
COMPANY’S OBLIGATIONS UNDER THE NOTES AND THE INDENTURE OR UNTIL RELEASED OR LEGALLY DEFEASED IN
ACCORDANCE WITH THE INDENTURE AND SHALL INURE TO THE BENEFIT OF THE SUCCESSORS AND ASSIGNS OF THE
TRUSTEE, THE COLLATERAL AGENT AND THE HOLDERS, AND, IN THE EVENT OF ANY TRANSFER OR ASSIGNMENT OF
RIGHTS BY ANY HOLDER, THE TRUSTEE OR THE COLLATERAL AGENT, THE RIGHTS AND PRIVILEGES HEREIN
CONFERRED UPON THAT PARTY SHALL AUTOMATICALLY EXTEND TO AND BE VESTED IN SUCH TRANSFEREE OR
ASSIGNEE, ALL SUBJECT TO THE TERMS AND CONDITIONS HEREOF. THIS IS A GUARANTEE OF PAYMENT AND
PERFORMANCE AND NOT OF COLLECTION.



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



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



	 	 	 	 	 
	 	[Name of Guarantor(s)]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 





 









 








EXHIBIT F




[FORM OF SUPPLEMENTAL INDENTURE

TO BE DELIVERED BY SUBSEQUENT GUARANTORS]





     Supplemental Indenture (this “Supplemental Indenture”), dated as of ________________,
20__, among __________________ (the “Guaranteeing Subsidiary”), a subsidiary of CPM Holdings, Inc.,
(or its permitted successor), a Delaware corporation (the “Company”), the Company, the other
Guarantors (as defined in the Indenture referred to herein) and Wilmington Trust FSB, as trustee
under the Indenture referred to below (the “Trustee”) and as collateral agent.



W I T N E S S E T H




     WHEREAS, the Company has heretofore executed and delivered to the Trustee an indenture (the
“Indenture”), dated as of August 18, 2009, providing for the issuance of 105⁄8% Senior Secured Notes
due 2014 (the “Notes”);



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



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



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



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



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



     4. No Recourse Against Others. No past, present or future director, officer,
employee, incorporator, stockholder or agent of the Guaranteeing Subsidiary, as such, shall have
any liability for any obligations of the Company or any Guaranteeing Subsidiary under the Notes,
any Note Guarantees, the Indenture or this Supplemental Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each Holder of the Notes by
accepting a Note waives and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes. Such waiver may not be effective to waive liabilities
under the federal securities laws and it is the view of the SEC that such a waiver is against
public policy.



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



     6. Counterparts. The parties may sign any number of copies of this Supplemental
Indenture. Each signed copy shall be an original, but all of them together represent the same
agreement.



F-1









 






EXHIBIT F



     7. Effect of Headings. The Section headings herein are for convenience only and
shall not affect the construction hereof.



     8. The Trustee. The Trustee shall not be responsible in any manner whatsoever for or
in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of
the recitals contained herein, all of which recitals are made solely by the Guaranteeing Subsidiary
and the Company.



[Signature page follows.]




F-2









 





EXHIBIT F




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



     Dated: _______________, 20___



	 	 	 	 	 
	 	[Guaranteeing Subsidiary]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	[Company]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	[Existing Guarantors]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	[Trustee],

as Trustee

 
	 
	 	By:  	
 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 





F-3









 








EXHIBIT G




FORM OF INTERCREDITOR AGREEMENT





G-1