Exhibit 4.1






Exhibit
4.1




SENIOR SECURED NOTES INDENTURE




Dated as of February 17, 2011



Among



CAMBIUM LEARNING GROUP, INC.,



THE GUARANTORS NAMED ON THE SIGNATURE PAGES HERETO



and



WELLS FARGO BANK, NATIONAL ASSOCIATION,



as Trustee



9.75% SENIOR SECURED NOTES DUE 2017



Reference is made to the Lien Subordination and Intercreditor Agreement, dated as of February 17,
2011, among Harris, N.A., as ABL Agent for the ABL Secured Parties referred to therein; Wells Fargo
Bank, National Association, as Notes Collateral Agent; Cambium Learning Group, Inc.; and the other
Subsidiaries of Cambium Learning Group, Inc. named therein (the “Intercreditor Agreement”). Each
holder of the Notes, by its acceptance of the Notes, (a) consents to the subordination of Liens
provided for in the Intercreditor Agreement, (b) agrees that it will be bound by, and will take no
actions contrary to, the provisions of the Intercreditor Agreement and (c) authorizes and instructs
the Notes Collateral Agent on behalf of each holder of Notes to enter into the Intercreditor
Agreement as Notes Collateral Agent on behalf of such holder of Notes. The foregoing provisions
are intended as an inducement to the ABL Secured Parties to extend credit to the Issuer and the
Guarantors and such ABL Secured Parties are intended third party beneficiaries of such provisions
and the provisions of the Intercreditor Agreement.



 


 









 








CROSS-REFERENCE TABLE*




	 	 	 	 	 
	 	 	Indenture	 
	Trust Indenture Act Section	 	Section	 
	 
	 	 	 	 
	310 (a)(1)
	 	 	7.10	 
	(a)(2)
	 	 	7.10	 
	(a)(3)
	 	 	N.A.	 
	(a)(4)
	 	 	N.A.	 
	(a)(5)
	 	 	7.10	 
	(b)
	 	 	7.10	 
	(c)
	 	 	N.A.	 
	311 (a)
	 	 	7.11	 
	(b)
	 	 	7.11	 
	(c)
	 	 	N.A.	 
	312 (a)
	 	 	2.05	 
	(b)
	 	 	12.03	 
	(c)
	 	 	12.03	 
	313 (a)
	 	 	7.06	 
	(b)
	 	 	7.06; 7.07	 
	(c)
	 	 	7.06; 12.02	 
	(d)
	 	 	7.06	 
	314 (a)
	 	 	4.03; 4.04	 
	(b)
	 	 	13.02	 
	(c)(1)
	 	 	12.04	 
	(c)(2)
	 	 	12.04	 
	(c)(3)
	 	 	N.A.	 
	(d)
	 	 	13.04; 13.05	 
	(e)
	 	 	12.05	 
	(f)
	 	 	N.A.	 
	315 (a)
	 	 	7.01	 
	(b)
	 	 	7.05	 
	(c)
	 	 	7.01	 
	(d)
	 	 	7.07	 
	(e)
	 	 	6.14	 
	316 (a)(last sentence)
	 	 	2.09	 
	(a)(1)(A)
	 	 	6.05	 
	(a)(1)(B)
	 	 	6.04	 
	(a)(2)
	 	 	N.A.	 
	(b)
	 	 	6.07	 
	(c)
	 	 	1.05	 
	317 (a)(1)
	 	 	6.08	 
	(a)(2)
	 	 	6.12	 
	(b)
	 	 	N.A.	 
	318 (a)
	 	 	12.01	 
	(b)
	 	 	N.A.	 
	(c)
	 	 	12.01	 








 




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



 


 









 










Table of Contents




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE 1

	 	 	 	 	 
	 	 	 	 
	DEFINITIONS AND INCORPORATION BY REFERENCE

	 	 	 	 	 
	 	 	 	 
	Section 1.01	 	Definitions
	 	 	1	 
	Section 1.02	 	Other Definitions
	 	 	32	 
	Section 1.03	 	Incorporation by Reference of Trust Indenture Act
	 	 	32	 
	Section 1.04	 	Rules of Construction
	 	 	33	 
	Section 1.05	 	Acts of Holders
	 	 	33	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE 2

	 	 	 	 	 
	 	 	 	 
	THE SECURED NOTES

	 	 	 	 	 
	 	 	 	 
	Section 2.01	 	Form and Dating; Terms
	 	 	35	 
	Section 2.02	 	Execution and Authentication
	 	 	36	 
	Section 2.03	 	Registrar and Paying Agent
	 	 	36	 
	Section 2.04	 	Paying Agent to Hold Money in Trust
	 	 	36	 
	Section 2.05	 	Holder Lists
	 	 	37	 
	Section 2.06	 	Transfer and Exchange
	 	 	37	 
	Section 2.07	 	Replacement Note
	 	 	46	 
	Section 2.08	 	Outstanding Notes
	 	 	46	 
	Section 2.09	 	Treasury Notes
	 	 	46	 
	Section 2.10	 	Temporary Notes
	 	 	46	 
	Section 2.11	 	Cancellation
	 	 	46	 
	Section 2.12	 	Defaulted Interest
	 	 	47	 
	Section 2.13	 	CUSIP/ISIN Numbers
	 	 	47	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE 3

	 	 	 	 	 
	 	 	 	 
	REDEMPTION

	 	 	 	 	 
	 	 	 	 
	Section 3.01	 	Notices to Trustee
	 	 	47	 
	Section 3.02	 	Selection of Notes to Be Redeemed
	 	 	47	 
	Section 3.03	 	Notice of Redemption
	 	 	48	 
	Section 3.04	 	Effect of Notice of Redemption
	 	 	49	 
	Section 3.05	 	Deposit of Redemption Price
	 	 	49	 
	Section 3.06	 	Notes Redeemed in Part
	 	 	49	 
	Section 3.07	 	Optional Redemption
	 	 	49	 
	Section 3.08	 	Mandatory Redemption
	 	 	50	 
	Section 3.09	 	Offers to Repurchase by Application of Excess Proceeds
	 	 	50	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE 4

	 	 	 	 	 
	 	 	 	 
	COVENANTS

	Section 4.01	 	Payment of Notes
	 	 	52	 
	Section 4.02	 	Maintenance of Office or Agency
	 	 	52	 
	Section 4.03	 	Reports and Other Information
	 	 	52	 
	Section 4.04	 	Compliance Certificate
	 	 	53	 
	Section 4.05	 	Taxes
	 	 	54	 
	 	 	 	 	 
	 	 	 	 





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	 	 	 	 	 	 	Page	 
	 	 	 	 	 
	 	 	 	 
	Section 4.06	 	Stay, Extension and Usury Laws
	 	 	54	 
	Section 4.07	 	Limitation on Restricted Payments
	 	 	54	 
	Section 4.08	 	Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries
	 	 	59	 
	Section 4.09	 	Limitation on Incurrence of Indebtedness and Issuance of Disqualified Stock and
Preferred Stock
	 	 	61	 
	Section 4.10	 	Asset Sales
	 	 	66	 
	Section 4.11	 	Transactions With Affiliates
	 	 	68	 
	Section 4.12	 	Liens
	 	 	70	 
	Section 4.13	 	Company Existence
	 	 	70	 
	Section 4.14	 	Offer to Repurchase upon Change of Control
	 	 	70	 
	Section 4.15	 	Limitation on Guarantees of Indebtedness by Restricted Subsidiaries
	 	 	72	 
	Section 4.16	 	Impairment of Security Interests; Further Assurances
	 	 	72	 
	Section 4.17	 	After-Acquired Property
	 	 	73	 
	Section 4.18	 	Insurance
	 	 	73	 
	Section 4.19	 	Payment for Consent
	 	 	73	 
	Section 4.20	 	Post-Closing Actions
	 	 	73	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE 5

	 	 	 	 	 
	 	 	 	 
	SUCCESSORS

	 	 	 	 	 
	 	 	 	 
	Section 5.01	 	Merger, Consolidation or Sale of All or Substantially All Assets
	 	 	73	 
	Section 5.02	 	Successor Person Substituted
	 	 	75	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE 6

	 	 	 	 	 
	 	 	 	 
	DEFAULTS AND REMEDIES

	 	 	 	 	 
	 	 	 	 
	Section 6.01	 	Events of Default
	 	 	75	 
	Section 6.02	 	Acceleration
	 	 	77	 
	Section 6.03	 	Other Remedies
	 	 	78	 
	Section 6.04	 	Waiver of Past Defaults
	 	 	78	 
	Section 6.05	 	Control by Majority
	 	 	78	 
	Section 6.06	 	Limitation on Suits
	 	 	78	 
	Section 6.07	 	Rights of Holders to Receive Payment
	 	 	79	 
	Section 6.08	 	Collection Suit by Trustee
	 	 	79	 
	Section 6.09	 	Restoration of Rights and Remedies
	 	 	79	 
	Section 6.10	 	Rights and Remedies Cumulative
	 	 	79	 
	Section 6.11	 	Delay or Omission Not Waiver
	 	 	79	 
	Section 6.12	 	Trustee May File Proofs of Claim
	 	 	79	 
	Section 6.13	 	Priorities
	 	 	80	 
	Section 6.14	 	Undertaking for Costs
	 	 	80	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE 7

	 	 	 	 	 
	 	 	 	 
	TRUSTEE

	 	 	 	 	 
	 	 	 	 
	Section 7.01	 	Duties of Trustee
	 	 	80	 
	Section 7.02	 	Rights of Trustee
	 	 	81	 
	Section 7.03	 	Individual Rights of Trustee
	 	 	82	 
	Section 7.04	 	Trustee’s Disclaimer
	 	 	82	 
	Section 7.05	 	Notice of Defaults
	 	 	82	 
	Section 7.06	 	Reports by Trustee to Holders
	 	 	82	 
	Section 7.07	 	Compensation and Indemnity
	 	 	83	 
	Section 7.08	 	Replacement of Trustee
	 	 	83	 
	Section 7.09	 	Successor Trustee by Merger, Etc.
	 	 	84	 
	 	 	 	 	 
	 	 	 	 





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	 	 	 	 	 	 	Page	 
	 	 	 	 	 
	 	 	 	 
	Section 7.10	 	Eligibility; Disqualification
	 	 	84	 
	Section 7.11	 	Preferential Collection of Claims Against Issuer
	 	 	84	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE 8

	 	 	 	 	 
	 	 	 	 
	LEGAL DEFEASANCE AND COVENANT DEFEASANCE

	 	 	 	 	 
	 	 	 	 
	Section 8.01	 	Option to Effect Legal Defeasance or Covenant Defeasance
	 	 	84	 
	Section 8.02	 	Legal Defeasance and Discharge
	 	 	84	 
	Section 8.03	 	Covenant Defeasance
	 	 	85	 
	Section 8.04	 	Conditions to Legal or Covenant Defeasance
	 	 	85	 
	Section 8.05	 	Deposited Money and Government Securities to be Held in Trust;
other Miscellaneous Provisions
	 	 	87	 
	Section 8.06	 	Repayment to Issuer
	 	 	87	 
	Section 8.07	 	Reinstatement
	 	 	87	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE 9

	 	 	 	 	 
	 	 	 	 
	AMENDMENT, SUPPLEMENT AND WAIVER

	 	 	 	 	 
	 	 	 	 
	Section 9.01	 	Without Consent of Holders
	 	 	87	 
	Section 9.02	 	With Consent of Holders
	 	 	88	 
	Section 9.03	 	Compliance with Trust Indenture Act
	 	 	90	 
	Section 9.04	 	Revocation and Effect of Consents
	 	 	90	 
	Section 9.05	 	Notation on or Exchange of Notes
	 	 	90	 
	Section 9.06	 	Trustee to Sign Amendments, Etc.
	 	 	90	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE 10

	 	 	 	 	 
	 	 	 	 
	GUARANTEES

	 	 	 	 	 
	 	 	 	 
	Section 10.01	 	Guarantee
	 	 	91	 
	Section 10.02	 	Limitation on Guarantor Liability
	 	 	92	 
	Section 10.03	 	Execution and Delivery
	 	 	92	 
	Section 10.04	 	Subrogation
	 	 	92	 
	Section 10.05	 	Benefits Acknowledged
	 	 	92	 
	Section 10.06	 	Release of Guarantees by Guarantors
	 	 	92	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE 11

	 	 	 	 	 
	 	 	 	 
	SATISFACTION AND DISCHARGE

	 	 	 	 	 
	 	 	 	 
	Section 11.01	 	Satisfaction and Discharge
	 	 	93	 
	Section 11.02	 	Application of Trust Money
	 	 	94	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE 12

	 	 	 	 	 
	 	 	 	 
	MISCELLANEOUS

	 	 	 	 	 
	 	 	 	 
	Section 12.01	 	Trust Indenture Act Controls
	 	 	94	 
	Section 12.02	 	Notices
	 	 	94	 
	Section 12.03	 	Communication by Holders with Other Holders
	 	 	95	 
	Section 12.04	 	Certificate and Opinion as to Conditions Precedent
	 	 	96	 
	Section 12.05	 	Statements Required in Certificate or Opinion
	 	 	96	 
	Section 12.06	 	Rules by Trustee and Agents
	 	 	96	 
	 	 	 	 	 
	 	 	 	 





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	 	 	 	 	 	 	Page	 
	 	 	 	 	 
	 	 	 	 
	Section 12.07	 	No Personal Liability of Directors, Officers, Employees and Stockholders
	 	 	96	 
	Section 12.08	 	Governing Law
	 	 	96	 
	Section 12.09	 	Waiver of Jury Trial
	 	 	96	 
	Section 12.10	 	Force Majeure
	 	 	96	 
	Section 12.11	 	No Adverse Interpretation of Other Agreements
	 	 	97	 
	Section 12.12	 	Successors
	 	 	97	 
	Section 12.13	 	Severability
	 	 	97	 
	Section 12.14	 	Counterpart Originals
	 	 	97	 
	Section 12.15	 	Table of Contents, Headings, Etc.
	 	 	97	 
	Section 12.16	 	Qualification of Indenture
	 	 	97	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE 13

	 	 	 	 	 
	 	 	 	 
	COLLATERAL DOCUMENTS

	 	 	 	 	 
	 	 	 	 
	Section 13.01	 	Collateral and Collateral Documents
	 	 	97	 
	Section 13.02	 	Recordings and Opinions
	 	 	99	 
	Section 13.03	 	Release of Liens on Collateral
	 	 	99	 
	Section 13.04	 	Permitted Releases Not to Impair Lien; Trust Indenture Act Requirements
	 	 	100	 
	Section 13.05	 	Certificates of the Trustee
	 	 	101	 
	Section 13.06	 	Suits to Protect the Collateral
	 	 	101	 
	Section 13.07	 	Authorization of Receipt of Funds by the Trustee Under the Collateral Documents
	 	 	101	 
	Section 13.08	 	Purchaser Protected
	 	 	101	 
	Section 13.09	 	Powers Exercisable by Receiver or Trustee
	 	 	101	 
	Section 13.10	 	Release upon Termination of the Issuer’s Obligations
	 	 	102	 
	Section 13.11	 	Notes Collateral Agent
	 	 	102	 
	Section 13.12	 	Designations
	 	 	104	 
	Section 13.13	 	Additional Collateral
	 	 	104	 
	 	 	 	 	 
	 	 	 	 





EXHIBITS:




	 	 	 

	Exhibit A
	 	Form of Senior Secured Note

	Exhibit B
	 	Form of Certificate of Transfer

	Exhibit C
	 	Form of Certificate of Exchange

	Exhibit D
	 	Form of Supplemental Indenture to be Delivered by Subsequent Guarantors







 


-iv-











 





SENIOR SECURED NOTES INDENTURE, dated as of February 17, 2011, among Cambium Learning
Group, Inc., a Delaware corporation (the “Issuer”), the Guarantors (as defined herein) and Wells
Fargo Bank, National Association, a national banking association, as Trustee.



WITNESSETH




WHEREAS, the Issuer (as defined herein) has duly authorized the creation of an issue of
$175,000,000 aggregate principal amount of the Issuer’s 9.75% Senior Secured Notes due 2017 (the
“Initial Notes”); and



WHEREAS, the Issuer and the Guarantors have duly authorized the execution and delivery of this
Indenture (as defined herein);



NOW, THEREFORE, the Issuer, the Guarantors and the Trustee agree as follows for the benefit of
each other and for the equal and ratable benefit of the Holders (as defined herein).



ARTICLE 1




DEFINITIONS AND INCORPORATION BY REFERENCE



Section 1.01 Definitions.



“144A Global Note” means a Global Note substantially in the form of Exhibit A 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 Notes sold in reliance on Rule 144A.



“280G Escrow Account” means that certain escrow account in the amount of $3,000,000
established under the CVR Escrow Agreement to fund certain reimbursement obligations to Richard J.
Surratt with a portion of the balance, if any, to be distributed to the Issuer and, to the extent
sufficient funds are available, holders of the CVRs, as such escrow account is defined under the
CVR Escrow Agreement, which as of the Issue Date $3,000,000 (plus accrued interest, if any) was
then held in such escrow account.



“ABL Collateral” has the meaning ascribed to “ABL First Lien Collateral” in the Intercreditor
Agreement.



“ABL Facility” means the certain Loan and Security Agreement dated as of the Issue Date by and
among Cambium Learning, Inc., a Delaware corporation and a Wholly-Owned Subsidiary of the Issuer,
as a borrower, the other borrowers party thereto, the lenders party thereto in their capacities as
lenders thereunder and Harris N.A., as agent and Barclays Bank PLC, as collateral agent, including
any related notes, collateral documents, letters of credit and guarantees, instruments and
agreements executed in connection therewith, and any appendices, exhibits or schedules to any of
the foregoing (as the same may be in effect from time to time), and any amendments, supplements,
modifications, extensions, renewals, restatements, refundings or refinancings thereof (whether with
the original agents and lenders or other agents or lenders or otherwise, and whether provided under
the original credit agreement or other credit agreements or otherwise) and any indenture,
guarantees, credit facilities or commercial paper facilities with banks or other institutional
lenders or investors that replace, refund, exchange or refinance any part of the loans, notes,
guarantees, other credit facilities or commitments thereunder, including any such replacement,
refunding or refinancing facility or indenture that increases the amount borrowable thereunder or
alters the maturity thereof (provided that such increase in borrowings is permitted under Section
4.09 of this Indenture).



“ABL Lenders Debt” means (i) any Indebtedness outstanding from time to time under the ABL
Facility, (ii) any Indebtedness which has a senior priority security interest relative to the Notes
in the ABL Collateral, (iii) all obligations with respect to such Indebtedness and any Hedging
Obligations entered into with any agent, arranger or lender (or their affiliates) under the ABL
Facility (or any Person that was an arranger, agent or lender or an Affiliate of an arranger, agent
or lender at the time the applicable agreements pursuant to which such Hedging Obligations are
provided or were entered into) and (iv) all Bank Products entered into with any agent, arranger or
lender (or their affiliates) under the ABL Facility (or any Person that was an arranger, agent or
lender or an Affiliate of an arranger,
agent or lender at the time the applicable agreements pursuant to which such Bank Products are
provided or were entered into).


 


 









 





“Acquired Indebtedness” means, with respect to any specified Person,




(a) Indebtedness of any other Person existing at the time such other Person is merged
or consolidated with or into or became a Restricted Subsidiary of such specified Person,
including Indebtedness incurred in connection with, or in contemplation of, such other
Person merging or consolidating with or into or becoming a Restricted Subsidiary of such
specified Person, and




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



“Additional Interest” means all additional interest then owing pursuant to the Registration
Rights Agreement.



“Additional Notes” means any additional Notes issued under this Indenture (other than the
Initial Notes, or any Exchange Notes issued in exchange for such Initial Notes) having the same
terms in all respects as the Initial Notes except that interest may accrue on the Additional Notes
from their date of issuance. Additional Notes and Initial Notes shall be part of the same class
for all purposes of this Indenture.



“Additional Parity Debt” means the Additional Notes and any additional Secured Indebtedness
that is ranked pari passu with the Notes and is permitted to be incurred pursuant to
Section 4.09(a) of this Indenture; provided that (i) the representative of such Additional Parity
Debt executes a joinder agreement to the Collateral Agency Agreement, the Intercreditor Agreement
and, if applicable, to the other Collateral Documents, in each case in the form attached thereto,
agreeing to be bound thereby and (ii) the Issuer has designated such Indebtedness as “Additional
Parity Debt” thereunder.



“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” (including, with correlative meanings, the terms
“controlling,” “controlled by” and “under common control with”), as used with respect to any
Person, shall mean 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.



“After-Acquired Property” means any and all assets or property (other than Excluded Assets)
acquired after the Issue Date, including any property or assets acquired by the Issuer or a
Guarantor from another Subsidiary, which in each case constitutes Collateral or would have
constituted Collateral had such assets and property been owned by the Issuer or a Guarantor on the
Issue Date.



“Amendment No. 1 to the Merger Agreement” means that certain Amendment No. 1 to Agreement and
Plan of Mergers made as of September 20, 2010 referred to in the definition of “Merger Agreement.”



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



“Agent’s Message” means a message transmitted by DTC to, and received by, the Depositary and
forming a part of the book-entry confirmation, which states that DTC has received an express
acknowledgment from each participant in DTC tendering the Notes and that such participants have
received the Letter of Transmittal and agree to be bound by the terms of the Letter of Transmittal
and the Issuer may enforce such agreement against such participants.



“Applicable Premium” means, with respect to any Note on any Redemption Date, the greater of:




(a) 1.0% of the principal amount of such Note; and


 


-2-









 






(b) the excess, if any, of (i) the present value at such Redemption Date of (A) the
redemption price of such Note at February 15, 2014 (such redemption price being set forth in
the table set forth in Section 3.07(b) hereof, plus (B) all required remaining scheduled
interest payments due on such Note through February 15, 2014 (excluding accrued but unpaid
interest to the Redemption Date), in each case computed using a discount rate equal to the
Treasury Rate as of such Redemption Date plus 50 basis points; over (ii) the principal
amount of such Note.



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



“Asset Sale” means:




(a) the sale, conveyance, transfer or other disposition, whether in a single
transaction or a series of related transactions (including by way of a Sale and Lease-Back
Transaction), of property or assets of the Issuer or any of its Restricted Subsidiaries
(each referred to in this definition as a “disposition”); or




(b) the issuance or sale of Equity Interests of any Restricted Subsidiary (other than
Preferred Stock of Restricted Subsidiaries issued in compliance with Section 4.09 hereof),
whether in a single transaction or a series of related transactions; in each case, other
than:




(i) any disposition of Cash Equivalents or obsolete or worn out property or
equipment in the ordinary course of business or any disposition of inventory or
goods (or other assets) held for sale or no longer used in the ordinary course of
business;




(ii) the disposition of all or substantially all of the assets of the Issuer in
a manner permitted pursuant to the provisions described under Section 5.01 hereof or
any disposition that constitutes a Change of Control pursuant to this Indenture;




(iii) the making of any Restricted Payment that is permitted to be made, and is
made, under Section 4.07 hereof, including the making of any Permitted Investment;




(iv) any disposition of assets or issuance or sale of Equity Interests of any
Restricted Subsidiary in any transaction or series of related transactions with an
aggregate fair market value of less than $2.5 million;




(v) any disposition of property or assets or issuance of securities by a
Restricted Subsidiary to the Issuer or by the Issuer or a Restricted Subsidiary to a
Restricted Subsidiary;




(vi) to the extent allowable under Section 1031 of the Internal Revenue Code of
1986, any exchange of like property (excluding any boot thereon) for use in a
Similar Business;




(vii) the lease, assignment, sub-lease, license or sub-license of any real or
personal property in the ordinary course of business;




(viii) any issuance or sale of Equity Interests in, or Indebtedness or other
securities of, an Unrestricted Subsidiary;




(ix) foreclosures, condemnation, casualty, expropriation or any similar action
with respect to assets or the granting of Liens not prohibited by this Indenture;




(x) sales of accounts receivable, or participations therein, or Securitization
Assets (other than royalties or other revenues (except accounts receivable)) or
related assets in connection with any Qualified Securitization Facility;


 


-3-









 






(xi) any financing transaction with respect to property built or acquired by
the Issuer or any Restricted Subsidiary after the Issue Date, including Sale and
Lease-Back Transactions and asset securitizations permitted by this Indenture;




(xii) the sale or discount of inventory, accounts receivable or notes
receivable in the ordinary course of business or the conversion of accounts
receivable to notes receivable;




(xiii) the licensing or sub-licensing of intellectual property or other general
intangibles in the ordinary course of business;




(xiv) any surrender or waiver of contract rights or the settlement, release or
surrender of contract rights or other litigation claims in the ordinary course of
business;




(xv) the unwinding of any Hedging Obligations;




(xvi) sales, transfers and other dispositions of Investments in joint ventures
to the extent required by, or made pursuant to, customary buy/sell arrangements
between the joint venture parties set forth in joint venture arrangements and
similar binding arrangements;




(xvii) the abandonment of intellectual property rights in the ordinary course
of business, which in the reasonable good faith determination of the Issuer are not
material to the conduct of the business of the Issuer and its Restricted
Subsidiaries taken as a whole; and




(xviii) the issuance by a Restricted Subsidiary of Preferred Stock or
Disqualified Stock that is permitted by the covenant described under Section 4.09.



“Bank Products” means any facilities or services related to cash management, including
treasury, depository, overdraft, credit or debit card, purchase card, electronic funds transfer and
other cash management arrangements and commercial credit card and merchant card services.



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



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




(a) 85% of the aggregate book value of all accounts receivable of the Issuer and its
Restricted Subsidiaries; and




(b) 65% of the aggregate book value of all inventory owned by the Issuer and its
Restricted Subsidiaries,



all calculated on a consolidated basis in accordance with GAAP.




“Business Day” means each day which is not a Legal Holiday.



“Calculation Date” means the date on which the event for which the calculation of the Fixed
Charge Coverage Ratio shall occur.



“Capital Stock” means:




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




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


 


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




(d) any other interest or participation that confers on a Person the right to receive a
share of the profits and losses of, or distributions of assets of, the issuing Person but
excluding from all of the foregoing any debt securities convertible into Capital Stock,
whether or not such debt securities include any right of participation with Capital Stock.



“Capitalized Lease Obligation” means, at the time any determination thereof is to be made, the
amount of the liability in respect of a capital lease that would at such time be required to be
capitalized and reflected as a liability on a balance sheet (excluding the footnotes thereto)
prepared in accordance with GAAP.



“Capitalized Software Expenditures” shall mean, for any period, the aggregate of all
expenditures (whether paid in cash or accrued as liabilities) by a Person and its Restricted
Subsidiaries during such period in respect of licensed or purchased software or internally
developed software and software enhancements that, in conformity with GAAP, are or are required to
be reflected as capitalized costs on the consolidated balance sheet of a Person and its Restricted
Subsidiaries.



“Cash Equivalents” means:




(a) United States dollars;




(b) securities issued or directly and fully and unconditionally guaranteed or insured
by the U.S. government or any agency or instrumentality thereof the securities of which are
unconditionally guaranteed as a full faith and credit obligation of such government with
maturities of 12 months or less from the date of acquisition;




(c) certificates of deposit, time deposits and eurodollar time deposits with maturities
of 12 months or less from the date of acquisition, bankers’ acceptances with maturities not
exceeding one year and overnight bank deposits, in each case with any domestic or foreign
commercial bank having capital and surplus of not less than $500.0 million in the case of
U.S. banks and $100.0 million (or the U.S. dollar equivalent as of the date of
determination) in the case of non-U.S. banks;




(d) repurchase obligations for underlying securities of the types described in clauses
(b), (c) and (g) entered into with any financial institution or recognized securities dealer
meeting the qualifications specified in clause (c) above;




(e) commercial paper rated at least “P-2” by Moody’s or at least “A-2” by S&P (or, if
at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating
from another Rating Agency) and in each case maturing within 24 months after the date of
creation thereof and Indebtedness or Preferred Stock issued by Persons with a rating of “A”
or higher from S&P or “A-2” or higher from Moody’s with maturities of 24 months or less from
the date of acquisition;




(f) marketable short-term money market and similar funds having a rating of at least
“P-2” or “A-2” from either Moody’s or S&P, respectively (or, if at any time neither Moody’s
nor S&P shall be rating such obligations, an equivalent rating from another Rating Agency);




(g) readily marketable direct obligations issued by any state, commonwealth or
territory of the United States or any political subdivision or taxing authority thereof
having an Investment Grade Rating from either Moody’s or S&P (or, if at any time neither
Moody’s nor S&P shall be rating such obligations, an equivalent rating from another Rating
Agency) with maturities of 24 months or less from the date of acquisition;




(h) readily marketable direct obligations issued by any foreign government or any
political subdivision or public instrumentality thereof, in each case having an Investment
Grade Rating from either
Moody’s or S&P (or, if at any time neither Moody’s nor S&P shall be rating such
obligations, an equivalent rating from another Rating Agency) with maturities of 24 months
or less from the date of acquisition;


 


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(i) Investments with average maturities of 12 months or less from the date of
acquisition in money market funds rated “AAA-” (or the equivalent thereof) or better by S&P
or “Aaa3” (or the equivalent thereof) or better by Moody’s (or, if at any time neither
Moody’s nor S&P shall be rating such obligations, an equivalent rating from another Rating
Agency); and




(j) investment funds investing at least 95.0% of their assets in securities of the
types described in clauses (a) through (i) above.



In the case of Investments made in a country outside the United States of America, Cash
Equivalents shall also include investments of the type and maturity described in clauses (a)
through (g) and clauses (i) and (j) above of foreign obligors, which Investments or obligors (or
the parents of such obligors) have ratings described in such clauses or equivalent ratings from
comparable foreign rating agencies.



Notwithstanding the foregoing, Cash Equivalents shall include amounts denominated in
currencies other than those set forth in clauses (a) and (b) above, provided that such amounts are
converted into any currency listed in clauses (a) and (b) as promptly as practicable and in any
event within ten Business Days following the receipt of such amounts.



“Change of Control” means the occurrence of any of the following after the Issue Date:




(a) the sale, lease or transfer, in one or a series of related transactions, of all or
substantially all of the assets of the Issuer and its Subsidiaries, taken as a whole, to any
Person other than a Permitted Holder; or




(b) the Issuer becomes aware of (by way of a report or any other filing pursuant to
Section 13(d) of the Exchange Act, proxy, vote, written notice or otherwise) the acquisition
by any Person or group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the
Exchange Act, or any successor provision), including any group acting for the purpose of
acquiring, holding or disposing of securities (within the meaning of Rule 13d-5(b)(1) under
the Exchange Act), other than one or more Permitted Holders, in a single transaction or in a
related series of transactions, by way of merger, amalgamation, consolidation or other
business combination or purchase of beneficial ownership (within the meaning of Rule 13d-3
under the Exchange Act, or any successor provision) of 50% or more of the total voting power
of the Voting Stock of the Issuer; or




(c) the Issuer liquidates or dissolves or the stockholders of the Issuer adopt a plan
of liquidation or dissolution.



“Clearstream” means Clearstream Banking, Société Anonyme and its successors.



“Collateral” means the Notes Collateral and the ABL Collateral.



“Collateral Agency Agreement” means the Intercreditor and Collateral Agency Agreement, dated
as of the Issue Date, among the Issuer, each Guarantor, Wells Fargo Bank, National Association, as
Notes Collateral Agent, and Wells Fargo Bank, National Association, as Trustee, and as it may be
amended from time to time in accordance with this Indenture.



“Collateral Documents” means, collectively, the security agreements, pledge agreements,
mortgages, collateral assignments, deeds of trust and all other pledges, agreements, financing
statements (including amendments thereto and continuations thereof) patent, trademark or copyright
filings, mortgages or other filings or documents that create or purport to create a Lien in the
Collateral in favor of the Notes Collateral Agent and/or the Trustee (for the benefit of the Notes
Collateral Agent, the Trustee and the Holders of the Notes), the Collateral Agency Agreement and
the Intercreditor Agreement, in each case as they may be amended from time to time, and any
instruments of assignment, control agreements, lockbox letters or other instruments or agreements executed
pursuant to the foregoing.


 


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“Consolidated Depreciation and Amortization Expense” means with respect to any Person for any
period, the total amount of depreciation and amortization expense of such Person, including the
amortization of deferred financing fees, debt issuance costs, commissions, fees and expenses,
curriculum development expenses and fixed asset purchases and Capitalized Software Expenditures of
such Person and its Restricted Subsidiaries for such period on a consolidated basis and otherwise
determined in accordance with GAAP.



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




(a) consolidated interest expense in respect of Indebtedness of such Person and its
Restricted Subsidiaries for such period, to the extent such expense was deducted (and not
added back) in computing Consolidated Net Income (including (i) amortization of original
issue discount resulting from the issuance of Indebtedness at less than par, (ii) all
commissions, discounts and other fees and charges owed with respect to letters of credit or
bankers acceptances, (iii) non-cash interest charges (but excluding any non-cash interest
expense attributable to the movement in the mark to market valuation of Hedging Obligations
or other derivative instruments pursuant to GAAP), (iv) the interest component of
Capitalized Lease Obligations, and (v) net payments, if any, made (less net payments, if
any, received), pursuant to interest rate Hedging Obligations with respect to Indebtedness,
and excluding (u) any expense resulting from the discounting of any Indebtedness in
connection with the application of recapitalization accounting or, if applicable, purchase
accounting in connection with any acquisition, (v) penalties and interest relating to taxes,
(w) any Additional Interest and any “additional interest” or “liquidated damages” with
respect to other securities for failure to timely comply with registration rights
obligations, (x) amortization of deferred financing fees, debt issuance costs, commissions,
fees and expenses and discounted liabilities, (y) commissions, discounts, yield and other
fees and charges (including any interest expense) related to any Qualified Securitization
Facility and (z) any accretion of accrued interest on discounted liabilities); plus




(b) consolidated capitalized interest of such Person and its Restricted Subsidiaries
for such period, whether paid or accrued; less




(c) interest income of such Person and its Restricted Subsidiaries for such period.



For purposes of this definition, interest on a Capitalized Lease Obligation shall be deemed to
accrue at an interest rate reasonably determined by such Person to be the rate of interest implicit
in such Capitalized Lease Obligation in accordance with GAAP.



“Consolidated Net Income” means, with respect to any Person for any period, the aggregate of
the Net Income of such Person and its Restricted Subsidiaries for such period, on a consolidated
basis, and otherwise determined in accordance with GAAP; provided that, without duplication,




(a) any net after-tax effect of extraordinary, non-recurring or unusual gains, losses
or charges (including all fees and expenses relating thereto), including, without
limitation, any expenses relating to severance, relocation costs, integration costs,
transition costs, pre-opening, opening, consolidation and closing costs for facilities,
costs incurred in connection with any strategic initiatives, other business optimization
expenses (including costs and expenses relating to business optimization programs and new
systems design and implementation costs), restructuring costs and curtailments or
modifications to pension and post-retirement employee benefit plans shall be excluded;




(b) any net after-tax effect of gains or losses attributable to asset dispositions or
abandonments (including any disposal of abandoned or discontinued operations) or the sale or
other disposition of any Capital Stock of any Person other than in the ordinary course of
business as determined in good faith by the Issuer shall be excluded;


 


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(c) the Net Income for such period of any Person that is an Unrestricted Subsidiary or
Person that is not a Subsidiary or that is accounted for by the equity method of accounting
shall be excluded; provided that Consolidated Net Income of the Issuer shall be increased by
the amount of dividends or distributions or other payments that are actually paid in Cash
Equivalents (or to the extent converted into Cash Equivalents) to the Issuer or a Restricted
Subsidiary thereof in respect of such period and the net losses of any such Person shall
only be included to the extent funded with cash from the Issuer or any Restricted
Subsidiary;




(d) solely for the purpose of determining the amount available for Restricted Payments
under clause (C)(1) of Section 4.07(a)(iv) hereof, the Net Income for such period of any
Restricted Subsidiary (other than any Guarantor) shall be excluded to the extent that the
declaration or payment of dividends or similar distributions by that Restricted Subsidiary
of its Net Income is not at the date of determination permitted in whole without any prior
governmental approval (which has not been obtained) or, directly or indirectly, by the
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, unless such restriction with respect to the payment of dividends or similar
distributions has been legally waived, provided that Consolidated Net Income of the Issuer
shall be increased by the amount of dividends or other distributions or other payments
actually paid in cash (or to the extent converted into cash) to the Issuer or a Restricted
Subsidiary thereof in respect of such period, to the extent not already included therein;




(e) effects of adjustments (including the effects of such adjustments pushed down to
the Issuer and its Restricted Subsidiaries) in the inventory, property and equipment,
software, goodwill, other intangible assets, in-process research and development, deferred
revenue, debt line items and other noncash charges in such Person’s consolidated financial
statements pursuant to GAAP resulting from the application of recapitalization accounting
or, if applicable, purchase accounting in relation to any consummated acquisition or the
amortization or write-off of any amounts thereof, net of taxes, shall be excluded;




(f) any net after-tax effect of income (loss) from the early extinguishment or
conversion of (i) Indebtedness, (ii) Hedging Obligations or (iii) other derivative
instruments shall be excluded;




(g) any impairment charge or asset write-off or write-down, including impairment
charges or asset write-offs or write-downs related to intangible assets, long-lived assets,
investments in debt and equity securities or as a result of a change in law or regulation,
in each case, pursuant to GAAP, and the amortization of intangibles arising pursuant to GAAP
shall be excluded;




(h) any non-cash compensation charge or expense, including any such charge or expense
arising from the grants of stock appreciation or similar rights, stock options, restricted
stock or other rights or equity incentive programs shall be excluded;




(i) any fees, expenses or charges incurred during such period, or any amortization
thereof for such period, in connection with any acquisition, Investment, Asset Sale,
disposition, incurrence or repayment of Indebtedness (including such fees, expenses or
charges related to the offering of the Notes and the ABL Facility), issuance of Equity
Interests, refinancing transaction or amendment or modification of any debt instrument
(including any amendment or other modification of the Notes and the ABL Facility) and
including, in each case, any such transaction consummated prior to the Issue Date and any
such transaction undertaken but not completed, and any charges or non-recurring merger costs
incurred during such period as a result of any such transaction, in each case whether or not
successful, shall be excluded;




(j) any net unrealized gain or loss (after any offset) resulting in such period from
Hedging Obligations and the application of Accounting Standards Codification 815 shall be
excluded;




(n) any net unrealized gain or loss (after any offset) resulting in such period from
currency translation and transaction gains or losses including those related to currency
remeasurements of Indebtedness (including any net loss or gain resulting from Hedging
Obligations for currency exchange risk) and any other monetary assets and liabilities shall
be excluded; and


 


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(o) gains and losses recorded in accordance with changes in the fair value of
contingent value rights.



Notwithstanding the foregoing, for the purpose of Section 4.07 hereof only (other than clause
(C)(4) of Section 4.07(a)(iv) hereof), there shall be excluded from Consolidated Net Income any
income arising from any sale or other disposition of Restricted Investments made by the Issuer and
its Restricted Subsidiaries, any repurchases and redemptions of Restricted Investments from the
Issuer and its Restricted Subsidiaries, any repayments of loans and advances which constitute
Restricted Investments by the Issuer or any of its Restricted Subsidiaries, any sale of the stock
of an Unrestricted Subsidiary or any distribution or dividend from an Unrestricted Subsidiary, in
each case only to the extent such amounts increase the amount of Restricted Payments permitted
under such covenant pursuant to clause (C)(4) of Section 4.07(a)(iv) hereof.



“Consolidated Secured Leverage Ratio” means, as of any date of determination, the ratio of (a)
all Indebtedness of the Issuer and its Restricted Subsidiaries that is secured by a Lien on any
assets of the Issuer and its Restricted Subsidiaries to (b) EBITDA of the Issuer and its Restricted
Subsidiaries for the most recent four fiscal quarter period ending prior to such date for which the
Issuer has consolidated financial statements available, in each case with such pro forma
adjustments to EBITDA as are consistent with the pro forma adjustment provisions set forth in the
definition of Fixed Charge Coverage Ratio.



“Consolidated Total Assets” means, as at any date of determination, the total assets of the
Issuer and the Restricted Subsidiaries which may properly be classified as assets on a consolidated
balance sheet of the Issuer and the Restricted Subsidiaries in accordance with GAAP.



“Contingent Obligations” means, with respect to any Person, any obligation of such Person
guaranteeing any leases, dividends or other obligations that do not constitute Indebtedness
(“primary obligations”) of any other Person (the “primary obligor”) in any manner, whether directly
or indirectly, including, without limitation, any obligation of such Person, whether or not
contingent,




(a) to purchase any such primary obligation or any property constituting direct or
indirect security therefor;




(b) to advance or supply funds




(i) for the purchase or payment of any such primary obligation, or




(ii) to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency of the primary obligor; or




(c) to purchase property, securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of the primary obligor to make
payment of such primary obligation against loss in respect thereof.



“Corporate Trust Office” means the office of the Trustee at which any time its corporate trust
business shall be administered, which office at the date hereof is MAC N9311-110, 625 Marquette
Ave., Minneapolis, Minnesota 55479, Attention: Cambium Administrator, or such other address as the
Trustee may designate from time to time by notice to the Holders and the Issuer, or the corporate
trust office of any successor Trustee (or such other address as such successor Trustee may
designate from time to time by notice to the Holders and the Issuer).



“Credit Facilities” means, with respect to the Issuer or any of its Restricted Subsidiaries,
one or more debt facilities, including the ABL Facility, or other financing arrangements
(including, without limitation, commercial paper facilities or indentures) providing for revolving
credit loans, term loans, letters of credit or other long-term indebtedness, including any notes,
mortgages, guarantees, collateral documents, instruments and agreements executed in connection
therewith, and any amendments, supplements, modifications, extensions, renewals, restatements or
refundings thereof and any indentures or credit facilities or commercial paper facilities that
replace, refund or refinance any part of the loans, notes, other credit facilities or commitments
thereunder, including any such replacement, refunding or refinancing facility or indenture that increases the amount permitted
to be borrowed thereunder or alters the maturity thereof (provided that such increase in borrowings
is permitted under Section 4.09 hereof) or adds Restricted Subsidiaries as additional borrowers or
guarantors thereunder and whether by the same or any other agent, lender or group of lenders.


 


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



“CVR” means each contingent value right originally issued by the Issuer pursuant to the CVR
Agreement to holders of common stock, par value $0.001 per share, of VLCY, immediately prior to the
effective time (the “Effective Time”) of the merger contemplated by the Merger Agreement on
December 8, 2009, following the Effective Time as part of the merger consideration paid to such
holders in such merger, as the same may be amended, supplemented or otherwise modified from time to
time in a manner not materially adverse to the Holders of the Notes.



“CVR Agreement” means that certain Contingent Value Rights Agreement, dated as of December 8,
2009, by and among the Issuer, Vowel Representative, LLC, as stockholders’ representative, and
Wells Fargo Bank, National Association, as rights agent and initial CVR agent, as the same may be
amended, supplemented or otherwise modified from time to time in a manner not materially adverse to
the Holders of the Notes.



“CVR Documents” means each of the CVRs, the CVR Agreement, the CVR Escrow Agreement and the
CVR Security Documents.



“CVR Escrow Account” means that certain escrow account established under the CVR Escrow
Agreement for the purpose of funding certain payments under the CVR Agreement, as such escrow
account is defined in the CVR Escrow Agreement.



“CVR Escrow Agreement” means that certain Escrow Agreement, dated as of December 8, 2009, by
and among Wells Fargo Bank, National Association, as escrow agent, Vowel Representative, LLC, as
stockholders’ representative, the Issuer, VLCY and Richard J. Surratt, as amended by Amendment No.
1 to the CVR Escrow Agreement, dated as of September 20, 2010, as the same may be amended,
supplemented or otherwise modified from time to time in a manner not materially adverse to the
Holders of the Notes.



“CVR Obligations” means, collectively, (i) the obligation of the Issuer to deposit and, to
cause certain of the Issuer’s subsidiaries to deposit, certain tax refunds relating to VLCY and its
subsidiaries in the CVR Escrow Account, pursuant to Sections 5.22(b), 5.22(c) and 5.22(d) of the
Merger Agreement, and (ii) the obligation of the Issuer to deposit, and to cause certain of the
Issuer’s subsidiaries to deposit, generally, an amount equal to 50% of the cash amount realized
from any refunds, credits or reductions in taxes by VLCY or its subsidiaries from the payment of
certain agreed contingencies pursuant to the Merger Agreement and (iii) the obligation to make or
permit any payments or other distributions or withdrawals to be made from the 280G Escrow Account,
the CVR Escrow Account or the Excess Employee Payment Escrow Account, in each case, in accordance
with the terms and conditions of the CVR Escrow Agreement.



“CVR Security Documents” means that certain Security Agreement, dated as of December 8, 2009,
by and among the Issuer, VLCY and Vowel Representative, LLC, as agent for the benefit of the
stockholders of VLCY immediately prior to the effective time of the merger on December 8, 2009 of
Vowel Acquisition Corp. with and into VLCY with VLCY as the surviving corporation, and each other
security agreement, document, financing statement or other instrument executed or delivered in
connection therewith, in each case, as the same may be amended, supplemented or otherwise modified
from time to time in a manner not materially adverse to the Holders of the Notes.



“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(c) hereof, substantially in the form of Exhibit A except
that such Note shall not bear the
Secured Global Note Legend and shall not have the “Schedule of Exchanges of Interests in the
Secured Global Note” attached thereto.


 


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



“Designated Non-cash Consideration” means the fair market value, as set forth in an Officer’s
Certificate, of non-cash consideration received by the Issuer or any of its Restricted Subsidiaries
in connection with an Asset Sale.



“Designated Preferred Stock” means Preferred Stock of the Issuer or any direct or indirect
parent company thereof (in each case other than Disqualified Stock) that is issued for cash (other
than to a Restricted Subsidiary or an employee stock ownership plan or trust established by the
Issuer or any of its Subsidiaries) and is so designated as Designated Preferred Stock, pursuant to
an Officer’s Certificate executed by the principal financial officer of the Issuer or the
applicable parent company thereof, as the case may be, on the issuance date thereof, the cash
proceeds of which are excluded from the calculation set forth in clause (C) of Section 4.07(a)(iv)
hereof.



“Disqualified Stock” means, with respect to any Person, any Capital Stock of such Person
which, by its terms, or by the terms of any security into which it is convertible or for which it
is putable or exchangeable, or upon the happening of any event, matures or is mandatorily
redeemable (other than solely as a result of a change of control or asset sale) pursuant to a
sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof (other
than solely as a result of a change of control or asset sale), in whole or in part, in each case
prior to the date 91 days after the earlier of the maturity date of the Notes or the date the Notes
are no longer outstanding; provided, that any Capital Stock held by any future, current or former
employee, director, officer, manager or consultant (excluding Veronis Suhler Stevenson (but not
excluding any future, current or former employee, director, officer, manager or consultant)) of the
Issuer, any of its Subsidiaries, any of its direct or indirect parent companies or any other entity
in which the Issuer or a Restricted Subsidiary has an Investment and is designated in good faith as
an “affiliate” by the board of directors of the Issuer (or the compensation committee thereof), in
each case pursuant to any stock subscription or shareholders’ agreement, management equity plan or
stock option plan or any other management or employee benefit plan or agreement shall not
constitute Disqualified Stock solely because it may be required to be repurchased by the Issuer or
its Subsidiaries or in order to satisfy applicable statutory or regulatory obligations.



“EBITDA” means, with respect to any Person for any period, the Consolidated Net Income of such
Person for such period




(a) increased (without duplication) by the following, in each case (other than clause
(x)) to the extent deducted (and not added back) in determining Consolidated Net Income for
such period:




(i) provision for taxes based on income or profits or capital, including,
without limitation, federal, state, provincial, franchise, excise and similar taxes,
and foreign withholding taxes (including any future taxes or other levies which
replace or are intended to be in lieu of such taxes and any penalties and interest
related to such taxes or arising from tax examinations) and the net tax expense
associated with any adjustments made pursuant to clauses (a) through (l) of the
definition of “Consolidated Net Income”; plus




(ii) Fixed Charges of such Person for such period (including (x) net losses or
Hedging Obligations or other derivative instruments entered into for the purpose of
hedging interest rate risk, net of interest income and gains with respect to such
obligations (y) costs of surety bonds in connection with financing activities and
(z) amounts excluded from Consolidated Interest Expense as set forth in clauses
(a)(u) through (z) in the definition thereof); plus




(iii) Consolidated Depreciation and Amortization Expense of such Person for
such period; plus


 


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(iv) the amount of any restructuring charges, accruals or reserves; plus




(v) any other non-cash charges (provided that if any such non-cash charges
represent an accrual or reserve for potential cash items in any future period, the
cash payment in respect thereof in such future period shall be subtracted from
EBITDA to such extent, and excluding amortization of a prepaid cash item that was
paid in a prior period); plus




(vi) the amount of any minority interest expense consisting of Subsidiary
income attributable to minority equity interests of third parties in any non-Wholly
Owned Subsidiary; plus




(vii) the amount of loss on sale of receivables, Securitization Assets and
related assets to any Securitization Subsidiary in connection with a Qualified
Securitization Facility; plus




(viii) any costs or expense incurred by the Issuer or a Restricted Subsidiary
pursuant to any management equity plan or stock option plan or any other management
or employee benefit plan, agreement or any stock subscription or shareholder
agreement, to the extent that such cost or expenses are funded with cash proceeds
contributed to the capital of the Issuer or net cash proceeds of an issuance of
Equity Interest of the Issuer (other than Disqualified Stock) solely to the extent
that such net cash proceeds are excluded from the calculation set forth in clause
(C) of Section 4.07(a)(iv) hereof; plus




(ix) cash receipts (or any netting arrangements resulting in reduced cash
expenditures) not representing EBITDA or Consolidated Net Income in any period to
the extent non-cash gains relating to such income were deducted in the calculation
of EBITDA pursuant to clause (b) below for any previous period and not added back;
plus




(x) any net loss from disposed or discontinued operations;




(b) decreased (without duplication) by the following, in each case to the extent
included in determining Consolidated Net Income for such period:




(i) non-cash gains increasing Consolidated Net Income of such Person for such
period, excluding any non-cash gains to the extent they represent the reversal of an
accrual or reserve for a potential cash item that reduced EBITDA in any prior
period; plus




(ii) any non-cash gains with respect to cash actually received in a prior
period unless such cash did not increase EBITDA in such prior period; plus




(iii) any net income from disposed or discontinued operations; plus




(iv) extraordinary gains and unusual or non-recurring gains (less all fees and
expenses relating thereto); and




(c) increased or decreased (without duplication) by, as applicable, any adjustments
resulting from the application of FASB Accounting Standards Codification 460, Guarantees.



“EMU” means economic and monetary union as contemplated in the Treaty on European Union.



“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 any public or private sale solely for cash of common stock or
Preferred Stock of the Issuer (excluding Disqualified Stock), other than:


 


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(a) public offerings with respect to the Issuer’s common stock registered on Form S-4
or Form S-8;




(b) issuances to any Subsidiary of the Issuer; and




(c) any such public or private sale that constitutes an Excluded Contribution.



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



“Excess Employee Payment Escrow Account” means that certain unfunded escrow account
established under the CVR Escrow Agreement as defined as the “Excess Employee Payment Account”
under the CVR Escrow Agreement.



“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the SEC promulgated thereunder.



“Exchange Notes” means the Notes of the Issuer issued in an 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” means an Exchange Offer Registration Statement as
defined in the Registration Rights Agreement.



“Excluded Assets” means:




(a) any property or assets owned by any Unrestricted Subsidiary (which as of the Issue
Date includes VLCY);




(b) Excluded Contracts;




(c) any asset that is subject to a Lien securing a capital lease obligation or Purchase
Money Obligation permitted to be incurred pursuant to this Indenture to the extent and so
long as the documents governing such obligations do not permit the pledge of such assets to
the Notes Collateral Agent;




(d) Excluded Capital Stock;




(e) any interest in fee-owned real property of the Issuer and the Guarantors if the
greater of its cost and book value is less than $1.0 million;




(f) any interest in leased real property of the Issuer and the Guarantors;




(g) motor vehicles and other assets subject to certificates of title;




(h) funds as of the Issue Date in the 280G Escrow Account, the CVR Escrow Account or
the Excess Employee Payment Escrow Account, the collateral securing the CVR Obligations
pursuant to any of the CVR Security Documents, the proceeds from each action, suit or other
proceeding relating to any tax refunds or tax payments in respect of the CVR Obligations and
any other proceeds also in respect thereof, the proceeds, if any, from the proceeding in the
Michigan Court of Claims referred to in the Amendment No. 1 to the Merger Agreement and any
cash amount realized from refunds, credits or reductions in taxes resulting from the payment
of certain agreed contingencies in each case in accordance with the terms of the CVR
Documents and the Merger Agreement (as applicable);


 


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(i) any intellectual property, including any United States intent-to-use trademark
applications, in relation to which any applicable law or regulation prohibits the creation
of a security interest therein or would otherwise invalidate the Issuer or such Guarantor’s
right, title or interest therein; and




(j) any property to the extent that such grant of a security interest is prohibited by
any Requirement of Law of a Governmental Authority or requires a consent not obtained of any
Governmental Authority pursuant to such Requirement of Law, except to the extent that such
Requirement of Law providing for such prohibition or requiring such consent is ineffective
under applicable law (provided that this clause shall not exclude any Account (as defined in
the Uniform Commercial Code) for which the federal government of the United States is the
account debtor as a result of the Federal Assignment of Claims Act, 31 U.S.C. Sec. 203
(1976), amended by 31 U.S.C.A. Sec. 3727 (West 1983), except to the extent that such grant
shall constitute or result in the termination or annulment of such Account);



provided, however, Excluded Assets shall not include any asset or property which secures
obligations with respect to ABL Lenders Debt and Excluded Assets shall not include any Proceeds (as
defined in the UCC), substitutions or replacements of any Excluded Assets referred to in clauses
(a) through (j) (unless such Proceeds, substitutions or replacements would constitute Excluded
Assets referred to in clauses (a) through (j))




“Excluded Capital Stock” means (a) any Capital Stock with respect to which the Issuer has
reasonably determined in good faith in writing to the Notes Collateral Agent that the costs
(including any costs resulting from material adverse tax consequences) of pledging such Equity
Interests shall be excessive in view of the benefits to be obtained by the Holders therefrom, (b)
solely in the case of any pledge of Capital Stock of any Foreign Subsidiary to secure the
Obligations under the Notes, any Capital Stock that are voting Capital Stock of such Foreign
Subsidiary in excess of 65% of the outstanding voting Capital Stock of such class, (c) any Capital
Stock to the extent the pledge thereof would be prohibited by any applicable law, rule or
regulation, (d) the Capital Stock of any Subsidiary that is not wholly owned by the Issuer and its
Subsidiaries at the time such Subsidiary becomes a Subsidiary (for so long as such Subsidiary
remains a non-wholly owned Subsidiary to the extent that the governing documents of such non-wholly
owned Subsidiary prevents the grant of a security interest therein), (e) the Capital Stock of any
Subsidiary whose assets, as reflected on their most recent balance sheet prepared in accordance
with GAAP, and revenues for the twelve-month period ending on the last day of the most recent
fiscal quarter for which financial statements are available, do not exceed $1.0 million, (f) the
Capital Stock of any Subsidiary of a Foreign Subsidiary and (g) the Capital Stock of any
Unrestricted Subsidiary, including, without limitation, VLCY.



“Excluded Contract” means at any date any rights or interest of the Issuer or any Guarantor
under any agreement, contract, license, lease, instrument, document or other general intangible
(referred to solely for purposes of this definition as a “Contract”) to the extent that such
Contract by the terms of a restriction in favor of a Person who is not the Issuer or any Guarantor,
or any requirement of law, prohibits, or requires any consent or establishes any other condition
for or could or would be terminated, abandoned, invalidated, rendered unenforceable, or would be
breached or defaulted under because of an assignment thereof or a grant of a security interest
therein by the Issuer or a Guarantor (after giving effect to Section 9-406, 9-407, 9-408 or 9-409
of the Uniform Commercial Code or principles of equity); provided that: (i) rights to payment
under any such Contract otherwise constituting an Excluded Contract by virtue of this definition
shall be included in the Collateral to the extent permitted thereby or by Section 9-406 or Section
9-408 of the Uniform Commercial Code and (ii) all proceeds paid or payable to any of the Issuer or
any Guarantor from any sale, transfer or assignment of such contract and all rights to receive such
proceeds shall be included in the Collateral.



“Excluded Contribution” means net cash proceeds, marketable securities or Qualified Proceeds
received by the Issuer from:




(a) contributions to its common equity capital; and




(b) the sale (other than to a Subsidiary of the Issuer or to any management equity plan
or stock option plan or any other management or employee benefit plan or agreement of the
Issuer) of Capital Stock (other than Disqualified Stock and Designated Preferred Stock) of
the Issuer;


 


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in each case designated as Excluded Contributions pursuant to an Officer’s Certificate executed by
the principal financial officer of the Issuer on the date such capital contributions are made or
the date such Equity Interests are sold, as the case may be, which are excluded from the
calculation set forth in clause (C) of Section 4.07(a)(iv) hereof.




“fair market value” means, with respect to any asset or liability, the fair market value of
such asset or liability as determined by the Issuer in good faith.



“Fixed Charge Coverage Ratio” means, with respect to any Person for any period, the ratio of
EBITDA of such Person for such period to the Fixed Charges of such Person for such period. In the
event that the Issuer or any Restricted Subsidiary incurs, assumes, guarantees, redeems, repays,
retires or extinguishes any Indebtedness (other than Indebtedness incurred or repaid under any
revolving credit facility unless such Indebtedness has been permanently repaid and has not been
replaced) or issues or redeems Disqualified Stock or Preferred Stock subsequent to the commencement
of the period for which the Fixed Charge Coverage Ratio is being calculated but prior to or
simultaneously with the event for which the calculation of the Fixed Charge Coverage Ratio is made
(the “Fixed Charge Coverage Ratio Calculation Date”), then the Fixed Charge Coverage Ratio shall be
calculated giving pro forma effect to such incurrence, assumption, guarantee, redemption,
repayment, retirement or extinguishment of Indebtedness, or such issuance or redemption of
Disqualified Stock or Preferred Stock, as if the same had occurred at the beginning of the
applicable four-quarter period.



For purposes of making the computation referred to above, Investments, acquisitions,
dispositions, mergers, amalgamations, consolidations and discontinued operations (as determined in
accordance with GAAP) that have been made by the Issuer or any of its Restricted Subsidiaries
during the four-quarter reference period or subsequent to such reference period and on or prior to
or simultaneously with the Fixed Charge Coverage Ratio Calculation Date shall be calculated on a
pro forma basis assuming that all such Investments, acquisitions, dispositions, mergers,
amalgamations, consolidations and discontinued operations (and the change in any associated fixed
charge obligations and the change in EBITDA resulting therefrom) had occurred on the first day of
the four-quarter reference period. If since the beginning of such period any Person that
subsequently became a Restricted Subsidiary or was merged with or into the Issuer or any of its
Restricted Subsidiaries since the beginning of such period shall have made any Investment,
acquisition, disposition, merger, amalgamation, consolidation or discontinued operation that would
have required adjustment pursuant to this definition, then the Fixed Charge Coverage Ratio shall be
calculated giving pro forma effect thereto for such period as if such Investment, acquisition,
disposition, merger, amalgamation, consolidation or discontinued operation had occurred at the
beginning of the applicable four-quarter period.



For purposes of this definition, whenever pro forma effect is to be given to an Investment,
acquisition, disposition, merger, amalgamation or consolidation, the pro forma calculations shall
be made in good faith by a responsible financial or accounting officer of the Issuer (and may
include, for the avoidance of doubt, cost savings, synergies and operating expense reductions
resulting from such Investment, acquisition, merger, amalgamation, or consolidation which is being
given pro forma effect that have been or are reasonably expected to be realized) provided that any
pro forma adjustments shall be limited to those that (a) are reasonably identifiable and factually
supportable as of the date of such calculation and (b) have occurred or are reasonably expected to
occur in the twelve months following the applicable date of such calculation, in the reasonable
judgment of the responsible financial or accounting officer of the Issuer and, the chief financial
officer of the Issuer shall certify the foregoing pursuant to a duly completed certificate signed
and delivered to the Trustee. If any Indebtedness bears a floating rate of interest and is being
given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in
effect on the Fixed Charge Coverage Ratio Calculation Date had been the applicable rate for the
entire period (taking into account any Hedging Obligations applicable to such Indebtedness).
Interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably
determined by a responsible financial or accounting officer of the Issuer to be the rate of
interest implicit in such Capitalized Lease Obligation in accordance with GAAP. For purposes of
making the computation referred to above, interest on any Indebtedness under a revolving credit
facility computed on a pro forma basis shall be computed based upon the average daily balance of
such Indebtedness during the applicable period except as set forth in the first paragraph of this
definition. Interest on Indebtedness that may optionally be determined at an interest rate based
upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate,
shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such
optional rate chosen as the Issuer may designate.


 


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“Fixed Charges” means, with respect to any Person for any period, the sum of, without
duplication:




(a) Consolidated Interest Expense of such Person for such period;




(b) all cash dividends or other distributions paid (excluding items eliminated in
consolidation) on any series of Preferred Stock during such period; and




(c) all dividends or other distributions paid or accrued (excluding items eliminated in
consolidation) on any series of Disqualified Stock during such period.



“Foreign Subsidiary” means, with respect to any Person, any Restricted Subsidiary of such
Person that is not organized or existing under the laws of the United States, any state thereof,
the District of Columbia, or any territory thereof and any Restricted Subsidiary of such Foreign
Subsidiary.



“GAAP” means generally accepted accounting principles in the United States of America which
are in effect from time to time.



“Global Note Legend” means the legend set forth in Section 2.06(g)(ii) 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, substantially in the form of Exhibit A issued in accordance with
Section 2.01, 2.06(b), 2.06(d) or 2.06(f) hereof.



“Government Securities” means securities that are:




(a) direct obligations of the United States of America for the timely payment of which
its full faith and credit is pledged; or




(b) obligations of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the timely payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United States of
America, which, in either case, are not callable or redeemable at the option of the issuers
thereof, and shall also include a depository receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act), as custodian with respect to any such Government Securities
or a specific payment of principal of or interest on any such Government Securities held by
such custodian for the account of the holder of such depository receipt; provided that
(except as required by law) such custodian is not authorized to make any deduction from the
amount payable to the holder of such depository receipt from any amount received by the
custodian in respect of the Government Securities or the specific payment of principal of or
interest on the Government Securities evidenced by such depository receipt.



“Governmental Authority” means any nation or government, any state or other political
subdivision thereof, any agency, authority, instrumentality, regulatory body, court, central bank
or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative
functions of or pertaining to government, any securities exchange and any self-regulatory
organization established to perform such functions.



“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
letters of credit and reimbursement agreements in respect thereof), of all or any part of any
Indebtedness or other obligations.



“Guarantee” means the guarantee by any Guarantor of the Issuer’s Obligations under this
Indenture and the Notes.



“Guarantor” means each Subsidiary of the Issuer, if any, that Guarantees the Notes in
accordance with the terms of this Indenture.


 


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“Hedging Obligations” means, with respect to any Person, the obligations of such Person under
any interest rate swap agreement, interest rate cap agreement, interest rate collar agreement,
commodity swap agreement, commodity cap agreement, commodity collar agreement, foreign exchange
contract, currency swap agreement or similar agreement (including equity derivative agreements)
providing for the transfer or mitigation of interest rate, currency, commodity risks or equity
risks either generally or under specific contingencies.



“Holder” means the Person in whose name a Note is registered on the registrar’s books.



“Indebtedness” means, with respect to any Person, without duplication:




(a) any indebtedness (including principal and premium) of such Person, whether or not
contingent:




(i) in respect of borrowed money;




(ii) evidenced by bonds, notes, debentures or similar instruments or letters of
credit or bankers’ acceptances (or, without duplication, reimbursement agreements in
respect thereof);




(iii) representing the balance deferred and unpaid of the purchase price of any
property (including Capitalized Lease Obligations) due more than twelve months after
such property is acquired, except (i) any such balance that constitutes an
obligation in respect of a commercial letter of credit, a trade payable or similar
obligation to a trade creditor, in each case accrued in the ordinary course of
business and (ii) any earn-out obligations until such obligation becomes a liability
on the balance sheet of such Person in accordance with GAAP and if not paid after
becoming due and payable; or




(iv) representing the net obligations under any Hedging Obligations;




if and to the extent that any of the foregoing Indebtedness (other than letters of
credit and Hedging Obligations) would appear as a liability upon a balance sheet
(excluding the footnotes thereto) of such Person prepared in accordance with GAAP;
provided that Indebtedness of any direct or indirect parent of the Issuer appearing
upon the balance sheet of the Issuer solely by reason of push-down accounting under
GAAP shall be excluded;




(b) to the extent not otherwise included, any obligation by such Person to be liable
for, or to pay, as obligor, guarantor or otherwise, on the obligations of the type referred
to in clause (a) of a third Person (whether or not such items would appear upon the balance
sheet of the such obligor or guarantor), other than by endorsement of negotiable instruments
for collection in the ordinary course of business; and




(c) to the extent not otherwise included, the obligations of the type referred to in
clause (a) of a third Person secured by a Lien on any asset owned by such first Person,
whether or not such Indebtedness is assumed by such first Person, but limited to the fair
market value of the assets subject to such Lien;



provided that notwithstanding the foregoing, Indebtedness shall be deemed not to include (i)
Contingent Obligations incurred in the ordinary course of business, (ii) (except for purposes of
calculating a Person’s Consolidated Secured Leverage Ratio) obligations under or in respect of
Qualified Securitization Facilities, (iii) any operating lease rental expense to the extent that
such rental expense is required to be recognized as a deferred liability on any Person’s balance
sheet in accordance with Statement of Financial Accounting Standard No. 13 or (iv) any of the CVR
Obligations.




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



“Indenture Obligations” means Obligations under this Indenture and the Notes.


 


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“Independent Financial Advisor” means an accounting, appraisal, investment banking firm or
consultant to Persons engaged in Similar Businesses of nationally recognized standing that is, in
the good faith judgment of the Issuer, qualified to perform the task for which it has been engaged.



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



“Initial Notes” as defined in the recitals hereto.



“Initial Purchasers” means Barclays Capital Inc. and BMO Capital Markets Corp.



“Intercreditor Agreement” means the Lien Subordination and Intercreditor Agreement, dated as
of the Issue Date, among the ABL Collateral Agent (as defined therein), the Notes Collateral Agent,
the Issuer and each Guarantor, as it may be amended from time to time in accordance with this
Indenture.



“Interest Payment Date” means February 15 and August 15 of each year to stated maturity,
commencing on August 15, 2011.



“Investment Grade Rating” means a rating equal to or higher than Baa3 (or the equivalent) by
Moody’s and BBB- (or the equivalent) by S&P, or if the Notes are not then rated by Moody’s or S&P,
an equivalent rating by any other Rating Agency.



“Investment Grade Securities” means:




(a) securities issued or directly and fully guaranteed or insured by the United States
government or any agency or instrumentality thereof (other than Cash Equivalents);




(b) debt securities or debt instruments with an Investment Grade Rating, but excluding
any debt securities or instruments constituting loans or advances among the Issuer and its
Subsidiaries;




(c) investments in any fund that invests exclusively in investments of the type
described in clauses (a) and (b) which fund may also hold immaterial amounts of cash pending
investment or distribution; and




(d) corresponding instruments in countries other than the United States customarily
utilized for high quality investments.



“Investments” means, with respect to any Person, all investments by such Person in other
Persons (including Affiliates) in the form of loans (including guarantees), advances or capital
contributions (excluding accounts receivable, trade credit, advances to customers and distributors,
commission, travel and similar advances to employees, directors, officers, managers, distributors
and consultants, in each case made in the ordinary course of business), purchases or other
acquisitions for consideration of Indebtedness, Equity Interests or other securities issued by any
other Person and investments that are required by GAAP to be classified on the balance sheet
(excluding the footnotes) of the Issuer in the same manner as the other investments included in
this definition to the extent such transactions involve the transfer of cash or other property.
For purposes of the definition of “Unrestricted Subsidiary” and Section 4.07 hereof:




(a) “Investments” shall include the portion (proportionate to the Issuer’s Equity
Interest in such Subsidiary) of the fair market value of the net assets of a Subsidiary of
the Issuer at the time that such Subsidiary is designated an Unrestricted Subsidiary;
provided that upon a redesignation of such Subsidiary as a Restricted Subsidiary, the Issuer
shall be deemed to continue to have a permanent “Investment” in an Unrestricted Subsidiary
in an amount (if positive) equal to:




(i) the Issuer’s “Investment” in such Subsidiary at the time of such
redesignation; less


 


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(ii) the portion (proportionate to the Issuer’s Equity Interest in such
Subsidiary) of the fair market value of the net assets of such Subsidiary at the
time of such redesignation; and




(b) any property transferred to or from an Unrestricted Subsidiary shall be valued at
its fair market value at the time of such transfer.



The amount of any Investment outstanding at any time shall be the original cost of such
Investment, reduced by any dividend, distribution, interest payment, return of capital, repayment
or other amount received in cash by the Issuer or a Restricted Subsidiary in respect of such
Investment.



“Investors” means Veronis Suhler Stevenson and, if applicable, each of its Affiliates and
funds or partnerships managed by it or its Affiliates but not including, however, any portfolio
companies of any of the foregoing.



“Issue Date” means February 17, 2011.



“Issuer” as defined in the Preamble hereto.



“Issuer’s Order” means a written request or order signed on behalf of the Issuer by an Officer
of the Issuer, who must be the principal executive officer, the principal financial officer, the
treasurer or the principal accounting officer of the Issuer, and delivered to the Trustee.



“Legal Holiday” means a Saturday, a Sunday or a day on which commercial banking institutions
are not required to be open in the State of New York or place of payment. 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 place of 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 Issuer and sent
to all Holders for use by such Holders in connection with an Exchange Offer.



“Lien” means, with respect to any asset, any mortgage, lien (statutory or otherwise), pledge,
hypothecation, charge, security interest, preference, priority 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; provided that in no event shall an operating lease be deemed to constitute a Lien.



“Management Advisory Agreement” means the agreement made in respect of certain advisory
services between certain of one or more of the management companies associated with the Investors
or their advisors, if applicable, and the Issuer, in effect on the Issue Date.



“Management Stockholders” means the members of management of the Issuer (or its direct parent)
who are holders of Equity Interests of the Issuer or any direct or indirect parent companies of the
Issuer on the Issue Date.



“Merger Agreement” means that certain Agreement and Plan of Mergers, dated as of June 20,
2009, by and among the Issuer (f/k/a Cambium Holdings, Inc.), VLCY, VSS-Cambium Holdings II Corp.,
Vowel Acquisition Corp., Consonant Acquisition Corp. and Vowel Representative, LLC, as amended by
Amendment No. 1 to Agreement and Plan of Mergers made as of September 20, 2010, by and between the
Issuer and Vowel Representative, LLC, as the same may be amended, supplemented or otherwise
modified from time to time in a manner not materially adverse to the Holders of the Notes.



“Moody’s” means Moody’s Investors Service, Inc. and any successor to its rating agency
business.


 


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“Mortgage” means any mortgage, deed of trust or other agreement entered into by the owner of a
Mortgaged Property and the Notes Collateral Agent, which conveys or evidences a Lien in favor of
the Notes Collateral Agent, for the benefit of the Holders, on such Mortgaged Property.



“Net Income” means, with respect to any Person, the net income (loss) of such Person,
determined in accordance with GAAP and before any reduction in respect of Preferred Stock
dividends.



“Net Proceeds” means the aggregate cash or Cash Equivalents proceeds received by the Issuer or
any of its Restricted Subsidiaries in respect of any Asset Sale, including any cash or Cash
Equivalents received upon the sale or other disposition of any Designated Non-cash Consideration
received in any Asset Sale, net of the direct costs relating to such Asset Sale and the sale or
disposition of such Designated Non-cash Consideration, including legal, accounting and investment
banking fees, payments made in order to obtain a necessary consent or required by applicable law,
and brokerage and sales commissions, any relocation expenses incurred as a result thereof, other
fees and expenses, including title and recordation expenses, taxes paid or payable as a result
thereof (after taking into account any available tax credits or deductions and any tax sharing
arrangements), amounts required to be applied to the repayment of Indebtedness secured by a Lien
(other than Liens on the Collateral securing the ABL Facility) on such assets and required (other
than required by clause (i) of Section 4.10(b) hereof) to be paid as a result of such transaction
and any deduction of appropriate amounts to be provided by the Issuer or any of its Restricted
Subsidiaries as a reserve in accordance with GAAP against any liabilities associated with the asset
disposed of in such transaction and retained by the Issuer or any of its Restricted Subsidiaries
after such sale or other disposition thereof, including pension and other post-employment benefit
liabilities and liabilities related to environmental matters or against any indemnification
obligations associated with such transaction.



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



“Notes” means the Notes authenticated and delivered under this Indenture.



“Notes Collateral” means (a) substantially all of the present and future tangible and
intangible assets of the Issuer and the Guarantors, including without limitation equipment,
contracts, intellectual property, fee-owned real property, general intangibles, intercompany notes
and proceeds of the foregoing (in each case, subject to certain exceptions) and (b) all of the
Capital Stock and each Subsidiary directly wholly-owned by the Issuer or a Guarantor; provided,
however, that the Notes Collateral shall not include the ABL Collateral or the Excluded Assets. In
addition, the Notes Collateral shall be subject to the limitations and exclusions described under
Sections 13.01(b) and 13.01(c).



“Notes Collateral Agent” means Wells Fargo Bank, National Association, in its capacity as
“Collateral Agent” under this Indenture, the Intercreditor Agreement and the other Collateral
Documents, and any successor thereto in such capacity.



“Notes Secured Parties” means the Trustee, the Notes Collateral Agent, each Holder of the
Notes and each other holder of, or obligee in respect of, any Indenture Obligations in respect of
the Notes outstanding at such time.



“Obligations” means any principal, interest (including any interest accruing on or subsequent
to the filing of a petition in bankruptcy, reorganization or similar proceeding at the rate
provided for in the documentation with respect thereto, whether or not such interest is an allowed
claim under applicable state, federal or foreign law), premium, penalties, fees, indemnifications,
reimbursements (including reimbursement obligations with respect to letters of credit and banker’s
acceptances), damages and other liabilities, and guarantees of payment of such principal, interest,
penalties, fees, indemnifications, reimbursements, damages and other liabilities, payable under the
documentation governing any Indebtedness.



“Offering Memorandum” means the confidential offering memorandum, dated February 14, 2011,
relating to the sale of the Initial Notes.


 


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“Officer” means, with respect to a Person, the Chairman of the board of directors, the Chief
Executive Officer, the Chief Financial Officer, the President, any Executive Vice President, Senior
Vice President or Vice President, the Treasurer or the Secretary of any Person. Unless otherwise
indicated, Officer shall refer to an Officer of such Person.



“Officer’s Certificate” means a certificate signed on behalf of a Person by an Officer of such
Person, who must be the principal executive officer, the principal financial officer, the treasurer
or the principal accounting officer of such Person that meets the requirements set forth in this
Indenture. Unless otherwise indicated, Officer’s Certificate shall refer to a certificate of an
Officer of the Issuer.



“Opinion of Counsel” means a written opinion from legal counsel who is acceptable to the
Trustee. The counsel may be an employee of or counsel to the Issuer or the Trustee.



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



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



“Permitted Additional Parity Debt” means obligations under any Additional Parity Debt;
provided that after giving effect to the Incurrence of any such Indebtedness the Consolidated
Secured Leverage Ratio of the Issuer and its Restricted Subsidiaries shall be less than or equal to
4.0:1.0.



“Permitted Asset Swap” means the substantially concurrent purchase and sale or exchange of
Related Business Assets or a combination of Related Business Assets and Cash Equivalents between
the Issuer or any of its Restricted Subsidiaries and another Person; provided that any Cash
Equivalents received must be applied in accordance with Section 4.10 hereof; provided further that
the assets received are pledged as Collateral to the extent required by the Collateral Documents
(except to the extent the Lien thereon is released by the lenders under the ABL Facility) to the
extent that the assets disposed of constituted Collateral.



“Permitted Holders” means each of (i) the Investors, (ii) Management Stockholders and (iii)
any group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act or any
successor provision) of which any of the foregoing are members (a “Permitted Holder Group”);
provided that, in the case of such group (x) each member (other than Permitted Holders specified in
clauses (i) and (ii) above) of such Permitted Holder Group has voting rights that, on a
proportional basis, are no greater than the percentage of ownership interest held or acquired by
such member and (y) no Person or other “group” (other than Permitted Holders specified in clauses
(i) and (ii) above) beneficially owns a greater percentage (on a fully diluted basis) of the total
voting power of the Voting Stock of the Issuer than is held, in the aggregate, by the Permitted
Holders specified in clauses (i) and (ii) above in such Permitted Holder Group. Any Person or group
whose acquisition of beneficial ownership constitutes a Change of Control in respect of which a
Change of Control Offer is made in accordance with the requirements of this Indenture will
thereafter, together with its Affiliates, constitute an additional Permitted Holder.



“Permitted Investments” means:




(a) any Investment in the Issuer or any of its Restricted Subsidiaries;




(b) any Investment in Cash Equivalents or Investment Grade Securities;




(c) any Investment by the Issuer or any of its Restricted Subsidiaries in a Person
(including, to the extent constituting an Investment, in assets of a Person that represent
substantially all of its assets or a division, business unit or product line, including
research and development and related assets in respect of any product) that is engaged
directly or through entities that shall be Restricted Subsidiaries in a Similar Business if
as a result of such Investment:




(i) such Person becomes a Restricted Subsidiary; or


 


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(ii) such Person, in one transaction or a series of related transactions, is
amalgamated, merged or consolidated with or into, or transfers or conveys
substantially all of its assets (or a division, business unit or product line,
including any research and development and related assets in respect of any product)
or is liquidated into, the Issuer or a Restricted Subsidiary, and, in each case, any
Investment held by such Person; provided that such Investment was not acquired by
such Person in contemplation of such acquisition, merger, amalgamation consolidation
or transfer;




(d) any Investment in securities or other assets not constituting Cash Equivalents or
Investment Grade Securities and received in connection with an Asset Sale made pursuant to
Section 4.10 hereof or any other disposition of assets not constituting an Asset Sale;




(e) any Investment existing on the Issue Date or made pursuant to binding commitments
in effect on the Issue Date or an Investment consisting of any extension, modification or
renewal of any such Investment or binding commitment existing on the Issue Date; provided
that the amount of any such Investment may be increased in such extension, modification or
renewal only (i) as required by the terms of such Investment or binding commitment as in
existence on the Issue Date (including as a result of the accrual or accretion of interest
or original issue discount or the issuance of pay-in-kind securities) or (ii) as otherwise
permitted under this Indenture;




(f) any Investment acquired by the Issuer or any of its Restricted Subsidiaries:




(i) consisting of extensions of credit in the nature of accounts receivable or
notes receivable arising from the grant of trade credit in the ordinary course of
business; or




(ii) in exchange for any other Investment or accounts receivable held by the
Issuer or any such Restricted Subsidiary in connection with or as a result of a
bankruptcy, workout, reorganization or recapitalization of the issuer of such other
Investment or accounts receivable (including any trade creditor or customer); or




(iii) in satisfaction of judgments against other Persons; or




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




(g) Hedging Obligations permitted under clause (x) of Section 4.09(b) hereof;




(h) any Investment in a Similar Business taken together with all other Investments made
pursuant to this clause (h) that are at that time outstanding, not to exceed the greater of
(i) $30.0 million and (ii) 5.0% of Consolidated Total Assets;




(i) Investments the payment for which consists of Equity Interests (other than
Disqualified Stock) of the Issuer, or any of its direct or indirect parent companies;
provided that such Equity Interests shall not increase the amount available for Restricted
Payments under clause (C) of Section 4.07(a)(iv) hereof;




(j) guarantees of Indebtedness permitted under Section 4.09(b) hereof;




(k) any transaction to the extent it constitutes an Investment that is permitted by and
made in accordance with the provisions of Section 4.11(b) hereof (except transactions
described in clauses (ii) and (v));


 


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(l) Investments consisting of purchases or other acquisitions of inventory, supplies,
material or equipment or the licensing or contribution of intellectual property pursuant to
joint marketing arrangements with other Persons;




(m) additional Investments, taken together with all other Investments made pursuant to
this clause (m) that are at that time outstanding (without giving effect to the sale of an
Unrestricted Subsidiary to the extent the proceeds of such sale do not consist of cash or
have not subsequently sold or transferred for cash or marketable securities), not to exceed
the greater of (i) $10.0 million and (ii) 5.0% of Consolidated Total Assets;




(n) Investments in or relating to a Securitization Subsidiary that, in the good faith
determination of the Issuer are necessary or advisable to effect any Qualified
Securitization Facility or any repurchase obligation in connection therewith;




(o) advances to, or guarantees of Indebtedness of, employees not in excess of $1.5
million outstanding at any one time, in the aggregate;




(p) loans and advances to employees, directors, officers, managers, distributors and
consultants for business-related travel expenses, moving expenses and other similar expenses
or payroll advances, in each case incurred in the ordinary course of business or consistent
with past practices or to fund such Person’s purchase of Equity Interests of the Issuer or
any direct or indirect parent company thereof;




(q) advances, loans or extensions of trade credit in the ordinary course of business by
the Issuer or any of its Restricted Subsidiaries;




(r) any Investment in any Subsidiary or any joint venture in connection with
intercompany cash management arrangements or related activities arising in the ordinary
course of business;




(s) Investments consisting of purchases and acquisitions of assets or services in the
ordinary course of business;




(t) Investments made in the ordinary course of business in connection with obtaining,
maintaining or renewing client contacts and loans or advances made to distributors in the
ordinary course of business;




(u) Investments in prepaid expenses, negotiable instruments held for collection and
lease, utility and workers compensation, performance and similar deposits entered into as a
result of the operations of the business in the ordinary course of business;




(v) repurchases of Notes and Exchange Notes;




(w) Investments in the ordinary course of business consisting of Uniform Commercial
Code Article 3 endorsements for collection of deposit and Article 4 customary trade
arrangements with customers consistent with past practices; and




(x) Investments in securities of trade creditors or customers in the ordinary course of
business received upon foreclosure or pursuant to any plan of reorganization or liquidation
or similar arrangement upon the bankruptcy or insolvency of such trade creditors or
customers.



“Permitted Liens” means, with respect to any Person:


 


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(a) pledges, deposits or security by such Person under workmen’s compensation laws,
unemployment insurance, employers’ health tax, and other social security laws or similar
legislation or other insurance-related obligations (including, but not limited to, in
respect of deductibles, self-insured retention amounts and premiums and adjustments thereto)
or indemnification obligations of (including obligations in
respect of letters of credit or bank guarantees for the benefit of) insurance carriers
providing property, casualty or liability insurance, or good faith deposits in connection
with bids, tenders, contracts (other than for the payment of Indebtedness) or leases to
which such Person is a party, or deposits to secure public or statutory or similar
obligations of such Person or deposits of cash or U.S. government bonds to secure surety or
appeal bonds to which such Person is a party, or deposits as security for contested taxes or
import duties or for the payment of rent, in each case incurred in the ordinary course of
business;




(b) Liens imposed by law, such as landlords’, carriers’, warehousemen’s materialmen’s,
repairmen’s, mechanics’ and similar Liens, in each case for sums not yet overdue for a
period of more than 30 days or being contested in good faith by appropriate actions or other
Liens arising out of judgments or awards against such Person with respect to which such
Person shall then be proceeding with an appeal or other proceedings for review if adequate
reserves with respect thereto are maintained on the books of such Person in accordance with
GAAP;




(c) Liens for taxes, assessments or other governmental charges not yet overdue for a
period of more than 30 days or not yet payable or subject to penalties for nonpayment or
which are being contested in good faith by appropriate actions diligently conducted, if
adequate reserves with respect thereto are maintained on the books of such Person in
accordance with GAAP;




(d) Liens in favor of issuers of performance, surety, bid, indemnity, warranty,
release, appeal or similar bonds or with respect to other regulatory requirements or letters
of credit or bankers acceptances issued, and completion guarantees provided for, in each
case, issued pursuant to the request of and for the account of such Person in the ordinary
course of its business or consistent with past practice prior to the Issue Date;




(e) minor survey exceptions, minor encumbrances, ground leases, easements or
reservations of, or rights of others for, licenses, rights-of-way, servitudes, sewers,
electric lines, drains, telegraph, telephone and cable television lines and other similar
purposes, or zoning, building codes or other restrictions (including minor defects and
irregularities in title and similar encumbrances) as to the use of real properties or Liens
incidental, to the conduct of the business of such Person or to the ownership of its
properties which were not incurred in connection with Indebtedness and which do not in the
aggregate materially impair their use in the operation of the business of such Person;




(f) Liens securing Obligations relating to any Indebtedness permitted to be incurred
pursuant to clause (iv), (xii) or (xiii) of Section 4.09(b) hereof; provided that (a) Liens
securing Obligations relating to any Indebtedness, Disqualified Stock or Preferred Stock
permitted to be incurred pursuant to clause (xiii) relate only to Obligations relating to
Refinancing Indebtedness that (x) is secured by Liens on the same assets as the assets
securing the Refinancing Indebtedness (other than after-acquired property that is (A)
affixed or incorporated into the property covered by such Lien, (B) after-acquired property
subject to a Lien securing such Indebtedness, the terms of which Indebtedness require or
include a pledge of after-acquired property (it being understood that such requirement shall
not be permitted to apply to any property to which such requirement would not have applied
but for such acquisition) and (C) the proceeds and products thereof) or (y) extends,
replaces, refunds, refinances, renews or defeases Indebtedness incurred or Disqualified
Stock or Preferred Stock issued under clause (iv) or (xii) of Section 4.09(b) hereof, and
(b) Liens securing Obligations relating to any Indebtedness, Disqualified Stock or Preferred
Stock to be incurred pursuant to clause (iv) of Section 4.09(b) hereof extend only to the
assets so purchased, leased or improved and any accessions or extensions thereof;




(g) Liens existing on the Issue Date or pursuant to agreements in existence on the
Issue Date (which may include Liens on after-acquired property that is (A) affixed or
incorporated into the property covered by such Lien, (B) after-acquired property subject to
a Lien securing such Indebtedness, the terms of which Indebtedness require or include a
pledge of after-acquired property (it being understood that such requirement shall not be
permitted to apply to any property to which such requirement would not have applied but for
such acquisition) and (C) the proceeds and products thereof);


 


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(h) Liens on property or shares of stock or other assets of a Person at the time such
Person becomes a Subsidiary; provided that such Liens are not created or incurred in
connection with, or in contemplation of, such other Person becoming such a Subsidiary;
provided, further, that such Liens may not extend to any other property or other assets
owned by the Issuer or any of its Restricted Subsidiaries (other than after-acquired
property that is (A) affixed or incorporated into the property covered by such Lien, (B)
after-acquired property subject to a Lien securing such Indebtedness, the terms of which
Indebtedness require or include a pledge of after-acquired property (it being understood
that such requirement shall not be permitted to apply to any property to which such
requirement would not have applied but for such acquisition) and (C) the proceeds and
products thereof);




(i) Liens on property or other assets at the time the Issuer or a Restricted Subsidiary
acquired the property or such other assets, including any acquisition by means of a merger,
amalgamation or consolidation with or into the Issuer or any of its Restricted Subsidiaries;
provided that such Liens are not created or incurred in connection with, or in contemplation
of, such acquisition, amalgamation, merger or consolidation; provided, further, that the
Liens may not extend to any other property owned by the Issuer or any of its Restricted
Subsidiaries;




(j) Liens or deposits securing Obligations relating to any Indebtedness or other
obligations of a Restricted Subsidiary owing to the Issuer or another Restricted Subsidiary
permitted to be incurred in accordance with Section 4.09 hereof;




(k) Liens securing Hedging Obligations; provided that, with respect to Hedging
Obligations relating to Indebtedness, such Indebtedness is, and is permitted to be under
this Indenture, secured by a Lien on the same property securing such Hedging Obligations;




(l) Liens on specific items of inventory or other goods and proceeds of any Person
securing such Person’s accounts payable or similar trade obligations in respect of bankers’
acceptances or trade letters of credit issued or created for the account of such Person to
facilitate the purchase, shipment or storage of such inventory or other goods;




(m) leases, sub-leases, licenses or sub-licenses, granted to others in the ordinary
course of business which do not materially interfere with the ordinary conduct of the
business of the Issuer or any of its Restricted Subsidiaries and do not secure any
Indebtedness;




(n) Liens arising from Uniform Commercial Code (or equivalent statute) financing
statement filings regarding operating leases or consignments entered into by the Issuer and
its Restricted Subsidiaries in the ordinary course of business;




(o) Liens in favor of the Issuer or any Guarantor;




(p) Liens created in favor of any vendor to the Issuer or any Restricted Subsidiary
that encumber all or any part of such vendor’s inventory and any books and records,
documents and instruments, letter of credit rights and supporting obligations and any
proceeds or products relating to such inventory, in each case existing on the Issue Date or
hereafter created and existing;




(q) Liens on accounts receivable, Securitization Assets and related assets incurred in
connection with a Qualified Securitization Facility;




(r) Liens to secure any modification, refinancing, refunding, extension, renewal or
replacement (or successive refinancing, refunding, extensions, renewals or replacements) as
a whole, or in part, of any Indebtedness secured by any Lien referred to in the foregoing
clauses (g), (h) and (i); provided that (a) such new Lien shall be limited to all or part of
the same property that secured the original Lien (plus accessions, additions and
improvements on such property (other than after-acquired property that is (A) affixed or
incorporated into the property covered by such Lien, (B) after-acquired property subject to
a Lien securing such Indebtedness, the terms of which Indebtedness require or include a
pledge of after-acquired property






 


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(it being understood that such requirement shall not be permitted to apply to any
property to which such requirement would not have applied but for such acquisition) and (C)
the proceeds and products thereof)), and (b) the Indebtedness secured by such Lien at such
time is not increased to any amount greater than the sum of (i) the outstanding principal
amount of the Indebtedness described under clauses (g), (h), and (i) at the time the
original Lien became a Permitted Lien under this Indenture and (ii) an amount necessary to
pay any fees and expenses, including premiums, and accrued and unpaid interest related to
such modification, refinancing, refunding, extension, renewal or replacement;



(s) other Liens securing obligations in an aggregate amount at any one time outstanding
not to exceed $20.0 million;




(t) Liens securing judgments for the payment of money not constituting an Event of
Default under clause (e) of Section 6.01 hereof so long as such Liens are adequately bonded
and any appropriate legal proceedings that may have been duly initiated for the review of
such judgment have not been finally terminated or the period within which such proceedings
may be initiated has not expired;




(u) Liens (i) of a collection bank arising under Section 4-210 of the Uniform
Commercial Code on items in the course of collection, (ii) attaching to commodity trading
accounts or other commodity brokerage accounts incurred in the ordinary course of business
and (iii) in favor of banking institutions arising as a matter of law or under general terms
and conditions encumbering deposits (including the right of set-off) and which are within
the general parameters customary in the banking industry;




(v) Liens deemed to exist in connection with Investments in repurchase agreements
permitted under Section 4.09 hereof; provided that such Liens do not extend to any assets
other than those that are the subject of such repurchase agreement;




(w) Liens that are contractual rights of set-off (i) relating to the establishment of
depository relations with banks not given in connection with the issuance of Indebtedness,
(ii) relating to pooled deposit or sweep accounts of the Issuer or any of its Restricted
Subsidiaries to permit satisfaction of overdraft or similar obligations incurred in the
ordinary course of business of the Issuer and its Restricted Subsidiaries or (iii) relating
to purchase orders and other agreements entered into with customers of the Issuer or any of
its Restricted Subsidiaries in the ordinary course of business;




(x) any encumbrance or restriction (including put and call arrangements) with respect
to capital stock of any joint venture or similar arrangement pursuant to any joint venture
or similar agreement;




(y) Liens arising out of conditional sale, title retention, consignment or similar
arrangements with vendors for the sale or purchase of goods entered into by the Issuer or
any Restricted Subsidiary in the ordinary course of business;




(z) Liens solely on any cash earnest money deposits made by the Issuer or any of its
Restricted Subsidiaries in connection with any letter of intent or purchase agreement
permitted under this Indenture;




(aa) Liens on Capital Stock of an Unrestricted Subsidiary that secure Indebtedness or
other obligations of such Unrestricted Subsidiary;




(bb) Liens on the assets of non-guarantor Subsidiaries securing Indebtedness of such
Subsidiaries that were permitted by the terms of this Indenture to be incurred;




(cc) Liens securing Permitted Additional Parity Debt; and




(dd) Liens on or securing (x) the proceeds, if any, from the proceeding in the Michigan
Court of Claims referred to in Amendment No. 1 to the Merger Agreement; (y) the CVR
Obligations; and (z) the 280G Escrow Account, the CVR Escrow Account and the Excess Employee
Payment Escrow Account (and
the funds comprising each of the foregoing) pursuant to the terms and conditions of the
CVR Security Documents and the Merger Agreement.


 


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For purposes of this definition, the term “Indebtedness” shall be deemed to include interest
on such Indebtedness.



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



“Preferred Stock” means any Equity Interest with preferential rights of payment of dividends
or upon liquidation, dissolution, or winding up.



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



“Purchase Money Obligations” mean Indebtedness incurred to finance the acquisition by the
Issuer or a Restricted Subsidiary of such asset, including additions and improvements or the
installation, construction, improvement or restoration of such asset; provided that any Lien
arising in connection with any such Indebtedness shall be limited to the specified asset being
financed or, in the case of real property or fixtures, including additions and improvements, the
real property on which such asset is attached; provided further that such Indebtedness is incurred
within 180 days after such acquisition of, or the completion of construction of, such asset by the
Issuer or Restricted Subsidiary.



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



“Qualified Proceeds” means the fair market value of assets that are used or useful in, or
Capital Stock of any Person engaged in, a Similar Business.



“Qualified Securitization Facility” means any Securitization Facility that meets the following
conditions: (a) the board of directors of the Issuer shall have determined in good faith that such
Securitization Facility (including financing terms, covenants, termination events and other
provisions) is in the aggregate economically fair and reasonable to the Issuer and the applicable
Securitization Subsidiary, (b) all sales and/or contributions of Securitization Assets and related
assets to the applicable Securitization Subsidiary are made at fair market value (as determined in
good faith by the Issuer) and (c) the financing terms, covenants, termination events and other
provisions thereof shall be market terms (as determined in good faith by the Issuer).



“Rating Agencies” means Moody’s and S&P or if Moody’s or S&P or both shall not make a rating
on the Notes publicly available, a nationally recognized statistical rating agency or agencies, as
the case may be, selected by the Issuer which shall be substituted for Moody’s or S&P or both, as
the case may be.



“Real Property Collateral Requirements” means, with respect to each owned real property of the
Issuer or any Guarantor, including each other parcel of real property and improvements thereto, for
which a Mortgage is granted pursuant to Section 13.13 (each a “Mortgaged Property”), each of the
following:




(a) a Mortgage on such Mortgaged Property;




(b) evidence that a counterpart of the Mortgage has been recorded or delivered to the
appropriate title insurance company subject to customary arrangements for the prompt
recording thereof;




(c) an ALTA or other mortgagee’s title policy or amendment thereto (or a marked
unconditional binder thereof insuring the Lien of the Mortgage at customary rates);




(d) an opinion of counsel in the state in which such Mortgaged Property is located as
to the recordability and enforceability of the applicable Mortgage in the relevant
jurisdiction; and


 


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(e) a flood zone certificate in favor of the Notes Collateral Agent, and, if any
Mortgaged Property with improvements located thereon is being identified as being within a
special flood hazard area, flood insurance in an amount required by applicable law.



“Record Date” for the interest payable on any applicable Interest Payment Date means the
February 1 and August 1 (whether or not a Business Day) immediately preceding such Interest Payment
Date.



“Registration Rights Agreement” means the Registration Rights Agreement with respect to the
Notes dated as of the Issue Date, among the Issuer, the Guarantors and the Initial Purchasers and,
with respect to any Additional Notes, one or more registration rights agreements between the Issuer
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 Issuer 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 Permanent Global Note.



“Regulation S Permanent Global Note” means a permanent Global Note in the form of Exhibit
A bearing the Global Note Legend, the Private Placement Legend and deposited with or on behalf
of, and registered in the name of, the Depositary or its nominee.



“Related Business Assets” means assets (other than Cash Equivalents) used or useful in a
Similar Business, provided that any assets received by the Issuer or a Restricted Subsidiary in
exchange for assets transferred by the Issuer or a Restricted Subsidiary shall not be deemed to be
Related Business Assets if they consist of securities of a Person, unless upon receipt of the
securities of such Person, such Person would become a Restricted Subsidiary.



“Requirement of Law” means, as to any Person, the Certificate of Incorporation and By-Laws or
other organizational or governing documents of such Person, and any law, treaty, rule or regulation
or determination of an arbitrator or a court or other Governmental Authority, in each case
applicable to or binding upon such Person or any of its property or to which such Person or any of
its property is subject.



“Responsible Officer” means, when used with respect to the Trustee, any officer within the
corporate trust department of the Trustee, including any vice president, assistant vice president,
assistant secretary, assistant treasurer, trust officer or any other officer of the Trustee who
customarily performs functions similar to those performed by the Persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred because of such
Person’s knowledge of and familiarity with the particular subject and who shall have direct
responsibility for the administration of this Indenture.



“Restricted Definitive Note” means a Definitive Note bearing, or that is required to bear, the
Private Placement Legend.



“Restricted Global Note” means a Global Note bearing, or that is required to bear, the Private
Placement Legend.



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



“Restricted Subsidiary” means, at any time, any direct or indirect Subsidiary of the Issuer
that is not then an Unrestricted Subsidiary; provided that upon an Unrestricted Subsidiary ceasing
to be an Unrestricted Subsidiary, such Subsidiary shall be included in the definition of
“Restricted 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.


 


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



“S&P” means Standard & Poor’s, a division of The McGraw-Hill Companies, Inc., and any
successor to its rating agency business.



“Sale and Lease-Back Transaction” means any arrangement providing for the leasing by the
Issuer or any of its Restricted Subsidiaries of any real or tangible personal property, which
property has been or is to be sold or transferred by the Issuer or such Restricted Subsidiary to a
third Person in contemplation of such leasing.



“SEC” means the U.S. Securities and Exchange Commission.



“Secured Indebtedness” means any Indebtedness of the Issuer or any of its Restricted
Subsidiaries secured by a Lien.



“Secured Obligations” has the meaning assigned thereto in the Security Agreement.



“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations
of the SEC promulgated thereunder.



“Securitization Assets” means the accounts receivable, royalty or other revenue and other
rights to payment and any other assets related thereto subject to a Qualified Securitization
Facility and the proceeds thereof.



“Securitization Facility” means any of one or more receivables securitization financing
facilities as amended, supplemented, modified, extended, renewed, restated or refunded from time to
time, the Obligations of which are non-recourse (except for customary representations, warranties,
covenants and indemnities made in connection with such facilities) to the Issuer or any of its
Restricted Subsidiaries (other than a Securitization Subsidiary) pursuant to which the Issuer or
any of its Restricted Subsidiaries sells or grants a security interest in its accounts receivable
or assets related thereto to either (a) a Person that is not a Restricted Subsidiary or (b) a
Securitization Subsidiary that in turn sells its accounts receivable to a Person that is not a
Restricted Subsidiary.



“Securitization Fees” means distributions or payments made directly or by means of discounts
with respect to any participation interest issued or sold in connection with, and other fees paid
to a Person that is not a Securitization Subsidiary in connection with, any Qualified
Securitization Facility.



“Securitization Subsidiary” means any Subsidiary formed for the purpose of, and that solely
engages only in one or more Qualified Securitization Facilities and other activities reasonably
related thereto.



“Security Agreement” means the Security Agreement, dated as of the Issue Date, among the
Issuer, each Guarantor and the Notes Collateral Agent, as it may be amended from time to time in
accordance with this Indenture.



“Senior Indebtedness” means Indebtedness of the Issuer or any Guarantor unless the instrument
under which such Indebtedness is incurred expressly provides that it is subordinated in right of
payment to the Notes or any related Guarantee.



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



“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 Issue Date.



“Similar Business” means (a) any business engaged in by the Issuer or any of its Restricted
Subsidiaries on the Issue Date, and (b) any business or other activities that are reasonably
similar, ancillary, complementary or related to, or a reasonable extension, development or expansion of, the businesses in which the
Issuer and its Restricted Subsidiaries are engaged on the Issue Date.


 


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“Subordinated Indebtedness” means, with respect to the Notes,




(a) any Indebtedness of the Issuer which is by its terms subordinated in right of
payment to the Notes, and




(b) any Indebtedness of any Guarantor which is by its terms subordinated in right of
payment to the Guarantee of such entity of the Notes.



“Subsidiary” means, with respect to any Person:




(a) any corporation, association, or other business entity (other than a partnership,
joint venture, limited liability company or similar entity) of which more than 50.0% of the
total voting power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees thereof is at
the time of determination owned or controlled, directly or indirectly, by such Person or one
or more of the other Subsidiaries of that Person or a combination thereof; and




(b) any partnership, joint venture, limited liability company or similar entity of
which




(i) more than 50.0% of the capital accounts, distribution rights, total equity
and voting interests or general or 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 or otherwise, and




(ii) such Person or any Restricted Subsidiary of such Person is a controlling
general partner or otherwise controls such entity.



“Treasury Rate” means, as of any Redemption Date, the yield to maturity as of such Redemption
Date of United States Treasury securities with a constant maturity (as compiled and published in
the most recent Federal Reserve Statistical Release H.15(519) that has become publicly available at
least two Business Days prior to the Redemption Date (or, if such Statistical Release is no longer
published, any publicly available source of similar market data)) most nearly equal to the period
from the Redemption Date to February 15, 2014; provided that if the period from the Redemption Date
to such date is less than one year, the weekly average yield on actually traded United States
Treasury securities adjusted to a constant maturity of one year shall be used.



“Trust Indenture Act” means the Trust Indenture Act of 1939, as amended (15 U.S.C. §§
77aaa-77bbbb).



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



“Uniform Commercial Code” means the New York Uniform Commercial Code as in effect from time to
time.



“Unrestricted Definitive Note” means one or more Definitive Notes that do not bear and are not
required to bear the Private Placement Legend.



“Unrestricted Global Note” means a permanent Global Note, substantially in the form of
Exhibit A that bears the Global Note Legend and that has the “Schedule of Exchanges of
Interests in the Global Note” attached thereto, and that is deposited with or on behalf of and
registered in the name of the Depositary, representing Notes that do not bear the Private Placement
Legend.



 


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“Unrestricted Subsidiary” means:




(a) VLCY (until such time as VLCY may be designated a Restricted Subsidiary in
accordance with the terms of this Indenture);




(b) any Subsidiary of the Issuer which at the time of determination is an Unrestricted
Subsidiary (as designated by the Issuer, as provided below); and




(c) any Subsidiary of an Unrestricted Subsidiary.



The Issuer may designate any Subsidiary of the Issuer (including any existing Subsidiary and
any newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary unless such
Subsidiary or any of its Subsidiaries owns any Equity Interests or Indebtedness of, or owns or
holds any Lien on, any property of, the Issuer or any Subsidiary of the Issuer (other than solely
any Subsidiary of the Subsidiary to be so designated); provided that




(i) any Unrestricted Subsidiary must be an entity of which the Equity Interests
entitled to cast at least a majority of the votes that may be cast by all Equity Interests
having ordinary voting power for the election of directors or Persons performing a similar
function are owned, directly or indirectly, by the Issuer;




(ii) such designation complies with Section 4.07 hereof; and




(iii) each of (A) the Subsidiary to be so designated and (B) its Subsidiaries has not
at the time of designation, and does not thereafter, create, incur, issue, assume, guarantee
or otherwise become directly or indirectly liable with respect to any Indebtedness pursuant
to which the lender has recourse to any of the assets of the Issuer or any Restricted
Subsidiary.



The Issuer may designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided
that, immediately after giving effect to such designation, no Default shall have occurred and be
continuing and either:




(a) the Issuer could incur at least $1.00 of additional Indebtedness pursuant to the
Fixed Charge Coverage Test or




(b) the Fixed Charge Coverage Ratio for the Issuer would be greater than such ratio for
the Issuer immediately prior to such designation, in each case on a pro forma basis taking
into account such designation.



Any such designation by the Issuer shall be notified by the Issuer to the Trustee by promptly
filing with the Trustee a copy of the resolution of the board of directors of the Issuer or any
committee thereof giving effect to such designation and an Officer’s Certificate certifying that
such designation complied with the foregoing provisions.



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



“VLCY” means Voyager Learning Company, a Subsidiary of the Issuer.



“Voting Stock” of any 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, Disqualified
Stock or Preferred Stock, as the case may be, at any date, the quotient obtained by dividing:




(a) the sum of the products of the number of years from the date of determination to
the date of each successive scheduled principal payment of such Indebtedness or redemption
or similar payment with respect to such Disqualified Stock or Preferred Stock multiplied by
the amount of such payment; by


 


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(b) the sum of all such payments.



“Wholly-Owned Subsidiary” of any Person means a Subsidiary of such Person, 100.0% of the
outstanding Equity Interests of which (other than directors’ qualifying shares and shares issued to
foreign nationals as required by applicable law) shall at the time be owned by such Person and/or
by one or more Wholly-Owned Subsidiaries of such Person.



Section 1.02 Other Definitions.



	 	 	 	 	 
	 	 	Defined in	 
	Term	 	Section	 
	 
	“Acceptable Commitment”
	 	 	4.10	(b)
	“Affiliate Transaction”
	 	 	4.11	(a)
	“Applicable Premium Deficit”
	 	 	8.04	(a)
	“Asset Sale Offer”
	 	 	4.10	(c)
	“Authentication Order”
	 	 	2.02	 
	“Change of Control Offer”
	 	 	4.14	 
	“Change of Control Payment”
	 	 	4.14	 
	“Change of Control Payment Date”
	 	 	4.14	(b)
	“Covenant Defeasance”
	 	 	8.03	 
	“DTC”
	 	 	2.03	 
	“Event of Default”
	 	 	6.01	 
	“Excess Proceeds”
	 	 	4.10	(c)
	“Fixed Charge Coverage Test”
	 	 	4.07	(a)(B)
	“incur”
	 	 	4.09	(a)
	“Legal Defeasance”
	 	 	8.02	 
	“Mortgaged Property”
	 	definition of “Real Property Collateral Requirements”	 
	“Note Register”
	 	 	2.03	 
	“Offer Amount”
	 	 	3.09	(b)
	“Offer Period”
	 	 	3.09	(b)
	“Pari Passu Indebtedness”
	 	 	4.10	(c)
	“Paying Agent”
	 	 	2.03	 
	“Purchase Date”
	 	 	3.09	(b)
	“Redemption Date”
	 	 	3.01	 
	“Refinancing Indebtedness”
	 	4.09	(b)(xiii)
	“Refunding Capital Stock”
	 	4.07	(b)(ii)
	“Registrar”
	 	 	2.03	 
	“Restricted Payments”
	 	 	4.07	(a)
	“Rule 3-16”
	 	 	13.01	(b)(i)
	“Successor Company”
	 	 	5.01	(a)(i)
	“Successor Person”
	 	 	5.01	(c)(i)
	“Treasury Capital Stock”
	 	4.07	(b)(ii)






Section 1.03 Incorporation by Reference of Trust Indenture Act. Whenever this Indenture refers to
a provision of the Trust Indenture Act, the provision is incorporated by reference in and made a
part of this Indenture. The following Trust Indenture Act terms used in this Indenture have the
following meanings:



“indenture securities” means the Notes and the Guarantees;



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


 


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“indenture to be qualified” means this Indenture;



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



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



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



Section 1.04 Rules of Construction. Unless the context otherwise requires:




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




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




(c) “or” is not exclusive;




(d) “including”, “includes” and similar words means including without limitation;




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




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




(g) provisions apply to successive events and transactions;




(h) references to sections of, or rules under, the Securities Act shall be deemed to
include substitute, replacement or successor sections or rules adopted by the SEC from time
to time;




(i) unless the context otherwise requires, any reference to an “Article,” “Section” or
“clause” refers to an Article, Section or clause, as the case may be, of this Indenture;




(j) the words “herein,” “hereof” and “hereunder” and other words of similar import
refer to this Indenture as a whole and not any particular Article, Section, clause or other
subdivision;




(k) the principal amount of any non-interest bearing or other discount security at any
date shall be the principal amount thereof that would be shown on a balance sheet of the
Issuer dated such date prepared in accordance with GAAP;




(l) the principal amount of any Preferred Stock shall be (i) the maximum liquidation
value of such Preferred Stock or (ii) the maximum mandatory redemption or mandatory purchase
price with respect to such Preferred Stock, whichever is greater; and




(m) all references to any interest or other amount payable on or with respect to the
Notes shall be deemed to include any Additional Interest.



Section 1.05 Acts of Holders.



(a) Any request, demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one
or more instruments of substantially similar tenor signed by such Holders in person or by an agent
duly appointed in writing. Except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments is delivered to the Trustee and, where it is hereby
expressly required, to the Issuer. Proof of execution of any such instrument or of a writing appointing any such agent, or the holding by any Person of a Note,
shall be sufficient for any purpose of this Indenture and (subject to Section 7.01 hereof)
conclusive in favor of the Trustee and the Issuer, if made in the manner provided in this Section
1.05.


 


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(b) The fact and date of the execution by any Person of any such instrument or writing may be
proved by the affidavit of a witness of such execution or by the certificate of any notary public
or other officer authorized by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the execution thereof. Where such execution
is by or on behalf of any legal entity other than an individual, such certificate or affidavit
shall also constitute proof of the authority of the Person executing the same. The fact and date
of the execution of any such instrument or writing, or the authority of the Person executing the
same, may also be proved in any other manner that the Trustee deems sufficient.



(c) The ownership of Notes shall be proved by the Note Register.



(d) Any request, demand, authorization, direction, notice, consent, waiver or other action by
the Holder of any Note shall bind every future Holder of the same Note and the Holder of every Note
issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof, in
respect of any action taken, suffered or omitted by the Trustee or the Issuer in reliance thereon,
whether or not notation of such action is made upon such Note.



(e) The Issuer may, in the circumstances permitted by the Trust Indenture Act, set a record
date for purposes of determining the identity of Holders entitled to give any request, demand,
authorization, direction, notice, consent, waiver or take any other act, or to vote or consent to
any action by vote or consent authorized or permitted to be given or taken by Holders. Unless
otherwise specified, if not set by the Issuer prior to the first solicitation of a Holder made by
any Person in respect of any such action, or in the case of any such vote, prior to such vote, any
such record date shall be the later of 10 days prior to the first solicitation of such consent or
the date of the most recent list of Holders furnished to the Trustee prior to such solicitation.



(f) Without limiting the foregoing, a Holder entitled to take any action hereunder with regard
to any particular Note may do so with regard to all or any part of the principal amount of such
Note or by one or more duly appointed agents, each of which may do so pursuant to such appointment
with regard to all or any part of such principal amount. Any notice given or action taken by a
Holder or its agents with regard to different parts of such principal amount pursuant to this
paragraph shall have the same effect as if given or taken by separate Holders of each such
different part.



(g) Without limiting the generality of the foregoing, a Holder, including DTC, that is a
Holder of a Global Note, may make, give or take, by a proxy or proxies duly appointed in writing,
any request, demand, authorization, direction, notice, consent, waiver or other action provided in
this Indenture to be made, given or taken by Holders, and any Person that is a Holder of a Global
Note, including DTC, may provide its proxy or proxies to the beneficial owners of interests in any
such Global Note through such depositary’s standing instructions and customary practices.



(h) The Issuer may (but is not required to) fix a record date for the purpose of determining
the Persons who are beneficial owners of interests in any Global Note held by DTC entitled under
the procedures of such depositary to make, give or take, by a proxy or proxies duly appointed in
writing, any request, demand, authorization, direction, notice, consent, waiver or other action
provided in this Indenture to be made, given or taken by Holders. If such a record date is fixed,
the Holders on such record date or their duly appointed proxy or proxies, and only such Persons,
shall be entitled to make, give or take such request, demand, authorization, direction, notice,
consent, waiver or other action, whether or not such Holders remain Holders after such record date.
No such request, demand, authorization, direction, notice, consent, waiver or other action shall
be valid or effective if made, given or taken more than 90 days after such record date.


 


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ARTICLE 2




THE SECURED NOTES



Section 2.01 Form and Dating; Terms.



(a) General. The Notes and the Trustee’s certificate of authentication shall be substantially
in the form of Exhibit A. The Notes may have notations, legends or endorsements required
by law, stock exchange rules or usage. Each Note shall be dated the date of its authentication.
The Notes shall be issued initially in minimum denominations of $2,000 and any integral multiple of
$1,000 in excess of $2,000.



(b) Global Notes. Notes issued in global form shall be substantially in the form of Exhibit A
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 shall be substantially in the form
of Exhibit A 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 shall represent
such of the outstanding Notes as shall be specified in the “Schedule of Exchanges of Interests in
the Global Note” attached thereto and each shall provide that it shall represent up to the
aggregate principal amount of 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 applicable, 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 shall 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) Regulation S Global Notes. Notes offered and sold in reliance on Regulation S shall be
issued in the form of the Regulation S Permanent Global Note, which shall be deposited on behalf of
the purchasers of the Notes represented thereby with the 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 Issuer and authenticated by the Trustee as
hereinafter provided.



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



The terms and provisions contained in the Notes shall constitute, and are hereby expressly
made, a part of this Indenture and the Issuer 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.



The Notes shall be subject to repurchase by the Issuer pursuant to an Asset Sale Offer as
provided in Section 4.10 hereof or a Change of Control Offer as provided in Section 4.14 hereof.
The Notes shall not be redeemable, other than as provided in Article 3 hereof.



Additional Notes ranking pari passu with the Initial Notes may be created and issued from time
to time by the Issuer without notice to or consent of the Holders and shall be consolidated with
and form a single class with the Initial Notes and shall have the same terms as to status,
redemption or otherwise as the Initial Notes; provided that the Issuer’s ability to issue
Additional Notes shall be subject to the Issuer’s compliance with Section 4.09 hereof. Any
Additional Notes may be issued with the benefit of an indenture supplemental to this Indenture.



(e) Euroclear and Clearstream Applicable Procedures. 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 shall
be applicable to transfers of
beneficial interests in the Regulation S Permanent Global Notes that are held by Participants
through Euroclear or Clearstream.


 


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Section 2.02 Execution and Authentication. At least one Officer of the Issuer shall execute
the Notes on behalf of the Issuer by manual or facsimile signature.



If an Officer of the Issuer whose signature is on a Note no longer holds that office at the
time the Trustee authenticates the Note, the Note shall nevertheless be valid.



A Note shall not be entitled to any benefit under this Indenture or be valid or obligatory for
any purpose until authenticated substantially in the form of Exhibit A, by the manual
signature of the Trustee. The signature shall be conclusive evidence that the Note has been duly
authenticated and delivered under this Indenture.



On the Issue Date, the Trustee shall, upon receipt of an Issuer’s Order (an “Authentication
Order”), authenticate and deliver the Initial Notes in the aggregate principal amount or amounts
specified in such Authentication Order. In addition, at any time, from time to time, the Trustee
shall, upon receipt of an Authentication Order, authenticate and deliver any Additional Notes or
Exchange Notes (but only upon completion of an Exchange Offer or in a sale under a Shelf
Registration Statement) for an aggregate principal amount specified in such Authentication Order
for such Additional Notes or Exchange Notes issued or increased hereunder.



The Trustee may appoint an authenticating agent acceptable to the Issuer 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 Issuer.



Section 2.03 Registrar and Paying Agent. The Issuer shall maintain (i) an office or agency
where Notes may be presented for registration of transfer or for exchange (“Registrar”) and (ii) an
office or agency where Notes may be presented for payment (“Paying Agent”). The Registrar shall
keep a register of the Notes (“Note Register”) and of their transfer and exchange. The registered
Holder of a Note shall be treated as the owner of the Note for all purposes. The Issuer 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 agents. The
Issuer initially appoints the Trustee as Paying Agent. The Issuer may change any Paying Agent or
Registrar without prior notice to any Holder. The Issuer shall notify the Trustee in writing of
the name and address of any Agent not a party to this Indenture. If the Issuer fails to appoint or
maintain another entity as Registrar or Paying Agent, the Trustee shall, to the extent that it is
capable, act as such. The Issuer or any of its domestic Subsidiaries may act as Paying Agent or
Registrar.



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



The Issuer initially appoints the Trustee to act as the Registrar for the Notes and to act as
Custodian with respect to the Global Notes.



Section 2.04 Paying Agent to Hold Money in Trust. The Issuer shall require each Paying Agent
other than the Trustee to agree in writing that the Paying Agent shall hold in trust for the
benefit of Holders or the Trustee all money held by the Paying Agent for the payment of principal,
premium, if any, interest or Additional Interest, if any, on the Notes, and shall notify the
Trustee in writing of any default by the Issuer 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
Issuer 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 Issuer or a Subsidiary) shall have
no further liability for the money. If the Issuer or a Subsidiary acts as Paying Agent, it shall
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 Issuer, the
Trustee shall serve as Paying Agent for the Notes.


 


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Section 2.05 Holder Lists. The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of all Holders and
shall otherwise comply with Section 312(a) of the Trust Indenture Act. If the Trustee is not the
Registrar, the Issuer shall furnish to the Trustee at least five Business Days before each Interest
Payment Date and at such other times as the Trustee may request in writing, a list in such form and
as of such date as the Trustee may reasonably require of the names and addresses of the Holders and
the Issuer shall otherwise comply with Section 312(a) of the Trust Indenture Act.



Section 2.06 Transfer and Exchange.



(a) Transfer and Exchange of Global Notes. Except as otherwise set forth in this Section
2.06, a Global Note may be transferred, in whole and not in part, only to another nominee of the
Depositary or to a successor thereto or a nominee of such successor thereto. A beneficial interest
in a Global Note may not be exchanged for a Definitive Note unless (i) the Depositary (x) notifies
the Issuer that it is unwilling or unable to continue as Depositary for such Global Note or (y) has
ceased to be a clearing agency registered under the Exchange Act, and, in either case, a successor
Depositary is not appointed by the Issuer within 120 days, (ii) the Issuer, at its option and
subject to the procedures of DTC, notifies the Trustee in writing that it elects to cause the
issuance of Definitive Notes, (iii) upon the request of a Holder if there shall have occurred and
be continuing a Default or Event of Default or (iv) upon the request of DTC in accordance with
customary DTC procedures. Upon the occurrence of any of the preceding events in clause (i) above,
Definitive Notes delivered in exchange for any Global Note or beneficial interests therein shall be
registered in the names, and issued in any approved denominations, requested by or on behalf of the
Depositary (in accordance with its customary procedures). Global Notes also may be exchanged or
replaced, in whole or in part, as provided in Sections 2.07 and 2.10 hereof. Every Note
authenticated and delivered in exchange for, or in lieu of, a Global Note or any portion thereof,
pursuant to this Section 2.06 or Section 2.07 or 2.10 hereof, shall be authenticated and delivered
in the form of, and shall be, a Global Note, except for Definitive Notes issued subsequent to any
of the preceding events in clause (i), (ii), (iii) or (iv) above and pursuant to 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); provided, 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 shall be effected through the Depositary in
accordance with the provisions of this Indenture and the Applicable Procedures. Beneficial
interests in the Restricted Global Notes shall 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 shall require compliance with either subparagraph (i) or (ii)
below, as applicable, as well as one or more of the other following subparagraphs, as applicable:




(i) Transfer of Beneficial Interests in the Same Global Note. Beneficial interests in
any Restricted Global Note may be transferred to Persons who take 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. 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)(i).




(ii) 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)(i) hereof, the transferor of such beneficial interest must deliver to the
Registrar either (A) (1) 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 (2) instructions given
in accordance with the Applicable Procedures containing information regarding the
Participant account to be credited with such increase or (B) (1) 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 (2) instructions
given by the Depositary to the Registrar containing information regarding the Person in
whose name such Definitive Note shall be registered to effect the transfer or exchange
referred to in (1) above. Upon


 


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




(iii) Transfer of Beneficial Interests to Another Restricted Global Notes. 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)(ii) hereof and the Registrar
receives the following:




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




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




(iv) Transfer and Exchange of Beneficial Interests in a Restricted Global Note for
Beneficial Interests in an Unrestricted Global Note. A beneficial interest in 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)(ii) hereof and:




(A) such exchange or transfer is effected pursuant to an Exchange Offer in
accordance with the Registration Rights Agreement and the holder of the beneficial
interest to be transferred, in the case of an exchange, or the transferee, in the
case of a transfer, certifies in the applicable Letter of Transmittal that it is not
(1) a Participating Broker-Dealer, (2) a Person participating in the distribution of
the Exchange Notes or (3) a Person who is an affiliate (as defined in Rule 144) of
the Issuer;




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




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




(D) the Registrar receives the following:




(1) 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 substantially
in the form of Exhibit C hereto, including the certifications in
item (1)(a) thereof; or




(2) 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;


 


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




If any such transfer is effected pursuant to subparagraph (B) or (D) above at a time when an
Unrestricted Global Note has not yet been issued, the Issuer 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.



(i) 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 the occurrence of
any of the events in the second sentence of Section 2.06(a) hereof and 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 substantially 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 substantially in the form of 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 substantially in
the form of 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
substantially in the form of Exhibit B hereto, including the certifications in item
(3)(a) thereof;




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




(F) if such beneficial interest is being transferred pursuant to an effective
registration statement under the Securities Act, a certificate substantially in the form of
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 Issuer shall execute and the Trustee shall
authenticate and mail to the Person designated in the instructions a Definitive Note in the
applicable 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 mail 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)(i) shall bear the Private Placement
Legend and shall be subject to all restrictions on transfer contained therein.



 


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(ii) [Reserved]



(iii) 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 upon the occurrence of any of
the events in the second sentence of Section 2.06(a) hereof and if:




(A) such exchange or transfer is effected pursuant to an Exchange Offer in accordance
with the applicable Registration Rights Agreement and the holder of such beneficial
interest, in the case of an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is not (1) a Participating
Broker-Dealer, (2) a Person participating in the distribution of the Exchange Notes or (3) a
Person who is an affiliate (as defined in Rule 144) of the Issuer;




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




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




(D) the Registrar receives the following:




(1) 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 substantially in the form of Exhibit C hereto,
including the certifications in item (1)(b) thereof; or




(2) 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 substantially 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 Issuer so requests or if the Applicable Procedures so require, an Opinion of
Counsel in form reasonably acceptable to the Issuer 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.



(iv) 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 the occurrence of any of the
events in the second sentence of Section 2.06(a) hereof and satisfaction of the conditions set
forth in Section 2.06(b)(ii) hereof, 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 Issuer
shall execute and the Trustee shall authenticate and mail to the Person designated in the
instructions a Definitive Note in the applicable principal amount. Any Definitive Note issued in
exchange for a beneficial interest pursuant to this Section 2.06(c)(iv) 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 or through the Depositary and the
Participant or Indirect Participant. The Trustee shall mail 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)(iv) shall not bear the Private Placement
Legend.



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



(i) 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 Note to a Person who takes delivery thereof in the form of
a beneficial interest in a Restricted Global Note, then, upon receipt by the Registrar of the
following documentation:


 


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(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
substantially 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 substantially in the form of 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 substantially in
the form of 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 substantially in the form of Exhibit B hereto, including the
certifications in item (3)(a) thereof;




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




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



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




(ii) 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 an Exchange Offer in accordance
with the applicable 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 (1) a Participating Broker-Dealer, (2) a Person participating
in the distribution of the Exchange Notes or (3) a Person who is an affiliate (as defined in
Rule 144) of the Issuer;




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




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




(D) the Registrar receives the following:




(1) 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 substantially in the form of Exhibit C hereto, including the
certifications in item (1)(c) thereof; or


 


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



Upon satisfaction of the conditions of this Section 2.06(d)(ii), the Trustee shall cancel the
Restricted Definitive Note and increase or cause to be increased the aggregate principal amount of
the Unrestricted Global Note.




(iii) 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 shall 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 subparagraph (ii)(B), (ii)(D) or (iii) above at a time when an Unrestricted Global Note
has not yet been issued, the Issuer 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 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 shall register the transfer or exchange of Definitive Notes. Prior to such registration
of transfer or exchange, the requesting Holder shall 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 shall provide any additional certifications, documents
and information, as applicable, required pursuant to the following provisions of this Section
2.06(e):




(i) 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 shall be made to a QIB in accordance with Rule 144A, then
the transferor must deliver a certificate substantially in the form of Exhibit B
hereto, including the certifications in item (1) thereof;




(B) if the transfer shall 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; or




(C) if the transfer shall 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 required
by item (3) thereof, if applicable.




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


 


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(A) such exchange or transfer is effected pursuant to an Exchange Offer in
accordance with the applicable Registration Rights Agreement;




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




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




(D) the Registrar receives the following:




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




(2) 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
substantially 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 Issuer so requests, an Opinion of Counsel in form reasonably
acceptable to the Issuer to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions on transfer
contained herein and in the Private Placement Legend are no longer required
in order to maintain compliance with the Securities Act.




(iii) Unrestricted 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 an Exchange Offer in accordance with the
applicable Registration Rights Agreement, the Issuer shall issue and, upon receipt of an
Authentication Order in accordance with Section 2.02 hereof, the Trustee shall authenticate (i) 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 tendered for acceptance by Persons that
certify in the applicable Letters of Transmittal or in an Agent’s Message that (x) they are not
Participating Broker-Dealers, (y) they are not participating in a distribution of the Exchange
Notes and (z) they are not affiliates (as defined in Rule 144) of the Issuer, and accepted for
exchange in an Exchange Offer and (ii) Unrestricted Definitive Notes in an aggregate principal
amount equal to the principal amount of the Restricted Definitive Notes tendered for acceptance by
Persons that certify in the applicable Letters of Transmittal that (x) they are not Participating
Broker-Dealers, (y) they are not participating in a distribution of the Exchange Notes and (z) they
are not affiliates (as defined in Rule 144) of the Issuer, and accepted for exchange in an Exchange
Offer. Concurrently with the issuance of such Notes, the Trustee shall cause the aggregate
principal amount of the applicable Restricted Global Notes to be reduced accordingly, and the
Issuer shall execute and the Trustee shall authenticate and mail to the Persons designated by the
Holders of Definitive Notes so accepted Unrestricted Definitive Notes in the applicable principal
amount. Any Notes that remain outstanding after the consummation of an Exchange Offer, and
Exchange Notes issued in connection with such Exchange Offer, shall be treated as a single class of
securities under this Indenture.



(g) Legends. The following legends shall 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:




(i) Private Placement Legend.


 


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(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 a legend
in substantially the following form:




“THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT
OF 1933 (THE “SECURITIES ACT”) AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT (A)(1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES
ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE
TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE
SECURITIES ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES
ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), (4) TO AN INSTITUTIONAL
ACCREDITED INVESTOR IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT OR (5) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE BLUE SKY LAWS OF THE
STATES OF THE UNITED STATES, AND ANY SELLER AGREES THAT IT WILL DELIVER TO EACH
PERSON TO WHOM THIS NOTE OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. NO AFFILIATE (WITHIN THE MEANING OF
RULE 144 UNDER THE SECURITIES ACT) OF THE COMPANY MAY PURCHASE OR OTHERWISE ACQUIRE
THE NOTES.”




(B) Notwithstanding the foregoing, any Global Note or Definitive Note issued pursuant
to subparagraph (b)(iv), (c)(iii), (c)(iv), (d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f) of
this Section 2.06 (and all Notes issued in exchange therefor or substitution thereof) shall
not bear the Private Placement Legend.




(ii) Global Note Legend. Each Global Note shall bear a legend in substantially the
following form (with appropriate changes in the last sentence if DTC is not the Depositary):




“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
(I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO
SECTION 2.06(h) OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE
BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE
MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE
INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY
WITH THE PRIOR WRITTEN CONSENT OF THE ISSUER. 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 ISSUER 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.”


 


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(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 cancelled in whole and not in part, each such Global Note shall
be returned to or retained and cancelled 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 shall 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 shall be reduced accordingly and an endorsement shall be made on such Global Note by
the Trustee or by the Depositary at the direction of the Trustee to reflect such reduction; and if
the beneficial interest is being exchanged for or transferred to a Person who shall take delivery
thereof in the form of a beneficial interest in another Global Note, such other Global Note shall
be increased accordingly and an endorsement shall be made on such Global Note by the Trustee or by
the Depositary at the direction of the Trustee to reflect such increase.



(i) General Provisions Relating to Transfers and Exchanges.



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



(ii) No service charge shall 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 Issuer may
require payment of a sum sufficient to cover any transfer tax or similar governmental charge
payable in connection therewith (other than any such transfer taxes or similar governmental charge
payable upon exchange or transfer pursuant to Sections 2.07, 2.10, 3.06, 3.09, 4.10, 4.14, and 9.05
hereof).



(iii) The Issuer shall not 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 or (B) to register the transfer of or to exchange a Note between a Record
Date with respect to such Note and the next succeeding Interest Payment Date with respect to such
Note.



(iv) Neither the Registrar nor the Issuer shall be required to register the transfer of or
exchange any Note selected for redemption in whole or in part, except the unredeemed portion of any
Note being redeemed in part.



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



(vi) Prior to due presentment for the registration of a transfer of any Note, the Trustee, any
Agent and the Issuer 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 premium, if
any) and interest on such Notes and for all other purposes, and none of the Trustee, any Agent or
the Issuer shall be affected by notice to the contrary.



(vii) Upon surrender for registration of transfer of any Note at the office or agency of the
Issuer designated pursuant to Section 4.02 hereof, the Issuer shall execute, and the Trustee shall
authenticate and mail, in the name of the designated transferee or transferees, one or more
replacement Notes of any authorized denomination or denominations of a like aggregate principal
amount.



(viii) At the option of the Holder, Notes may be exchanged for other Notes of any authorized
denomination or denominations of a like aggregate principal amount upon surrender of the Notes to
be exchanged at such office or agency. Whenever any Global Notes or Definitive Notes are so
surrendered for exchange, the Issuer shall
execute, and the Trustee shall authenticate and mail, the replacement Global Notes and
Definitive Notes which the Holder making the exchange is entitled to receive in accordance with the
provisions of Section 2.02 hereof.


 


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



Every replacement Note is a contractual obligation of the Issuer and shall be entitled to all
of the benefits of this Indenture equally and proportionately with all other Notes duly issued
hereunder.



Section 2.08 Outstanding Notes. The Notes outstanding at any time are all the Notes
authenticated by the Trustee except for those cancelled 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
Issuer or a Guarantor or an Affiliate of the Issuer or a Guarantor holds the Note.



If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be outstanding unless the
Trustee receives proof satisfactory to it that the replaced Note is held by a protected purchaser
(as defined in Section 8-303 of the Uniform Commercial Code).



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 Issuer or a Guarantor or an Affiliate of the Issuer or a
Guarantor) holds, on a Redemption Date or maturity date, money sufficient to pay Notes (or portions
thereof) payable on that date, then on and after that date such Notes (or portions thereof) shall
be deemed to be no longer outstanding and shall 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 Issuer or by
any Affiliate of the Issuer, shall be considered as though not outstanding, except that for the
purposes of determining whether the Trustee shall be protected in relying on any such direction,
waiver or consent, only Notes that a Responsible Officer of the Trustee knows are so owned shall be
so disregarded. Notes so owned which have been pledged in good faith shall not be disregarded if
the pledgee establishes to the satisfaction of the Trustee the pledgee’s right to deliver any such
direction, waiver or consent with respect to the Notes and that the pledgee is not the Issuer or a
Guarantor or any Affiliate of the Issuer or a Guarantor.



Section 2.10 Temporary Notes. Until certificates representing Notes are ready for delivery,
the Issuer may prepare and the Trustee, upon receipt of an Authentication Order, shall authenticate
temporary Notes. Temporary Notes shall be substantially in the form of certificated Notes but may
have variations that the Issuer considers appropriate for temporary Notes and as shall be
reasonably acceptable to the Trustee. Without unreasonable delay, the Issuer shall prepare and the
Trustee shall authenticate definitive Notes in exchange for temporary Notes.



Holders and beneficial holders, as the case may be, of temporary Notes shall be entitled to
all of the benefits accorded to Holders, or beneficial holders, respectively, of Notes under this
Indenture.


 


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Section 2.11 Cancellation. The Issuer at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any Notes surrendered to
them for registration of transfer, exchange or payment. The Trustee or, at the direction of the Trustee, the Registrar or
the Paying Agent and no-one else shall cancel all Notes surrendered for registration of transfer,
exchange, payment, replacement or cancellation and shall dispose of such cancelled Notes in its
customary manner (subject to the record retention requirement of the Exchange Act and the Trustee).
Certification of the cancellation of all cancelled Notes shall be delivered to the Issuer upon its
written request therefor. The Issuer may not issue new Notes to replace Notes that it has paid or
that have been delivered to the Trustee for cancellation.



Section 2.12 Defaulted Interest. If the Issuer defaults in a payment of interest on the
Notes, it shall pay the defaulted interest in any lawful manner plus, to the extent lawful,
interest payable on the defaulted interest, in each case at the rate provided in the Notes and in
Section 4.01 hereof. The Issuer may pay the defaulted interest to the Persons who are Holders on a
subsequent special record date. The Issuer shall promptly 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,
and the Issuer shall deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such defaulted interest or shall make arrangements satisfactory
to the Trustee for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to such defaulted interest as
provided in this Section 2.12. The Trustee shall fix or cause to be fixed any such special record
date and payment date; provided that no such special record date shall be less than 10 days prior
to the related payment date for such defaulted interest. The Trustee shall promptly notify the
Issuer of any such special record date. At least 15 days before any such special record date, the
Issuer (or, upon the written request of the Issuer, the Trustee in the name and at the expense of
the Issuer) shall mail or cause to be mailed, first-class, postage prepaid, to each Holder, with a
copy to the Trustee, a notice at his or her address as it appears in the Note Register that states
the special record date, the related payment date and the amount of such interest to be paid.



Subject to the foregoing provisions of this Section 2.12 and for greater certainty, each Note
delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of
any other Note shall carry the rights to interest accrued and unpaid, which were carried by such
other Note.



Section 2.13 CUSIP/ISIN Numbers. The Issuer in issuing the Notes may use CUSIP and ISIN
numbers (in each case, if then generally in use) and, if so, the Trustee shall use CUSIP and ISIN
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 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 Issuer shall as promptly as practicable notify the
Trustee in writing of any change in the CUSIP and ISIN numbers.



ARTICLE 3




REDEMPTION



Section 3.01 Notices to Trustee. If the Issuer elects to redeem Notes pursuant to Section
3.07 hereof, it shall furnish to the Trustee, at least five Business Days before notice of
redemption is required to be mailed or cause to be mailed to Holders pursuant to Section 3.03
hereof (or such shorter time as agreed to by the Trustee) but not more than 60 days before the date
of redemption (the “Redemption Date”), an Officer’s Certificate setting forth (i) the paragraph or
subparagraph of such Note and/or Section of this Indenture pursuant to which the redemption shall
occur, (ii) the Redemption Date, (iii) the principal amount of the Notes to be redeemed and (iv)
the redemption price. This notice may be revoked prior to the date notice is mailed to the
Holders.



Section 3.02 Selection of Notes to Be Redeemed. If less than all of the Notes are to be
redeemed in an offer to purchase at any time, the Trustee shall select the Notes to be redeemed (a)
if the Notes are listed on an exchange, in compliance with the requirements of such exchange, or
(b) on a pro rata basis to the extent practicable, or, if the pro rata basis is not practicable for
any reason, by lot or by such other method the Trustee shall deem appropriate, in each case in
integral multiples of $1,000 provided that no Notes of less than $2,000 shall be redeemed in part.
In the event of partial redemption by lot, the particular Notes to be redeemed shall be selected,
unless otherwise provided herein, not less than 30 nor more than 60 days prior to the Redemption
Date by the Trustee from the outstanding Notes not previously called for redemption.


 


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The Trustee shall promptly notify the Issuer in writing of the Notes selected for redemption
and, in the case of any Note selected for partial redemption, the principal amount thereof to be
redeemed. No Notes of $2,000 or less can be redeemed or purchased in part, except that if all of
the Notes of a Holder are to be redeemed, the entire outstanding amount of Notes held by such
Holder shall be redeemed. Except as provided in the preceding sentence, provisions of this
Indenture that apply to Notes called for redemption also apply to portions of Notes called for
redemption.



Section 3.03 Notice of Redemption. Subject to Section 3.09 hereof, the Issuer shall deliver
electronically or mail or caused to be mailed by first-class mail, postage prepaid, notices of
redemption at least 30 days but not more than 60 days before the Redemption Date to each Holder of
Notes to be redeemed at such Holder’s registered address or otherwise in accordance with Applicable
Procedures, except that redemption notices may be delivered electronically or mailed more than 60
days prior to a Redemption Date if the notice is issued in connection with Article 8 or Article 11
hereof. Except as set forth in Section 3.07 hereof, notices of redemption may not be conditional.



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




(a) the Redemption Date;




(b) the redemption price;




(c) if any Definitive Note is to be redeemed in part only, the portion of the principal
amount of that Note that is to be redeemed and that, after the Redemption Date upon
surrender of such Note, a new Note or Notes in principal amount equal to the unredeemed
portion of the original Note representing the same indebtedness to the extent not redeemed
shall be issued in the name of the Holder upon cancellation of the original Note;




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




(e) that Notes called for redemption must be surrendered to the Paying Agent to collect
the redemption price;




(f) that, unless the Issuer defaults in making such redemption payment, interest on
Notes called for redemption ceases to accrue on and after the Redemption Date;




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




(h) the CUSIP and ISIN number, if any, printed on the Notes being redeemed and that no
representation is made as to the correctness or accuracy of any such CUSIP and ISIN number
that is listed in such notice or printed on the Notes; and




(i) if in connection with a redemption pursuant to Section 3.07 hereof, any condition
to such redemption.



At the Issuer’s request, the Trustee shall give the notice of redemption in the Issuer’s name
and at its expense; provided that the Issuer shall have delivered to the Trustee, at least five
Business Days before notice of redemption is required to be mailed or caused to be mailed to
Holders pursuant to this Section 3.03 (unless a shorter notice shall be agreed to by the Trustee),
an Officer’s 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.



If the Notes are listed on an exchange (and the Trustee has been informed of such listing in
writing), and the rules of such exchange so require, the Issuer shall notify the exchange of any
such redemption and, if applicable, of the principal amount of any Notes outstanding following any
partial redemption of Notes.


 


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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, unless such redemption is conditioned on the happening of a future event,
at the redemption price. The notice, if mailed in a manner herein provided, shall be conclusively
presumed to have been given, whether or not the Holder receives such notice. In any case, failure
to deliver such notice or any defect in the notice to the Holder of any Note designated for
redemption in whole or in part shall not affect the validity of the proceedings for the redemption
of any other Note. Subject to Section 3.05 hereof, on and after the Redemption Date, interest
ceases to accrue on Notes or portions of Notes called for redemption.



Section 3.05 Deposit of Redemption Price.



(a) Prior to 11:00 a.m. (New York City time) on the Redemption Date, the Issuer shall deposit
with the Trustee or with the Paying Agent money sufficient to pay the redemption price of and
accrued and unpaid interest on all Notes to be redeemed on that Redemption Date. The Trustee or
the Paying Agent shall promptly return to the Issuer any money deposited with the Trustee or the
Paying Agent by the Issuer in excess of the amounts necessary to pay the redemption price of, and
accrued and unpaid interest on, all Notes to be redeemed.



(b) If the Issuer complies with the provisions of the preceding paragraph (a), on and after
the Redemption Date, interest shall cease to accrue on the Notes or the portions of Notes called
for redemption. If a Note is redeemed on or after a Record Date but on or prior to the related
Interest Payment Date, then any accrued and unpaid interest to the Redemption Date 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 shall not be so paid upon surrender for redemption because of the
failure of the Issuer to comply with the preceding paragraph, interest shall be paid on the unpaid
principal, from the Redemption Date until such principal is paid, and to the extent lawful on any
interest accrued to the Redemption Date 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 in Part. Upon surrender of a Definitive Note that is redeemed in
part, the Issuer shall issue and the Trustee shall authenticate for the Holder at the expense of
the Issuer a new Note equal in principal amount to the unredeemed portion of the Note surrendered
representing the same indebtedness to the extent not redeemed; provided that each new Note shall be
in a principal amount of $2,000 and any integral multiple of $1,000 in excess of $2,000. It is
understood that, notwithstanding anything to the contrary in this Indenture, only an Authentication
Order and not an Opinion of Counsel or Officer’s Certificate is required for the Trustee to
authenticate such new Note.



Section 3.07 Optional Redemption.



(a) At any time prior to February 15, 2014, the Issuer may redeem all or a part of the Notes
upon notice in accordance with Sections 3.02 and 3.03 hereof, at a redemption price equal to 100.0%
of the principal amount of the Notes redeemed plus the Applicable Premium as of, plus accrued and
unpaid interest, if any, to, but excluding the Redemption Date, subject to the right of Holders of
record on the relevant Record Date to receive interest due on the relevant Interest Payment Date.



(b) On or after February 15, 2014, the Issuer may redeem the Notes, in whole or in part, upon
notice in accordance with Sections 3.02 and 3.03 hereof, at the redemption prices (expressed as
percentages of principal amount of the Notes to be redeemed) set forth below, plus accrued and
unpaid interest, if any, to, but excluding the Redemption Date, subject to the right of Holders of
record on the relevant Record Date to receive interest due on the relevant Interest Payment Date,
if redeemed during the twelve-month period beginning on February 15 of each of the years indicated
below:



	 	 	 	 	 
	Year	 	Percentage	 
	2014 
	 	 	104.875	%
	2015 
	 	 	102.438	%
	2016 and thereafter 
	 	 	100.000	%





 


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(c) Until February 15, 2014, the Issuer may, at its option, on one or more occasions, redeem
up to 35.0% of the aggregate principal amount of Notes issued under this Indenture at a redemption
price equal to 109.750% of the aggregate principal amount thereof, plus accrued and unpaid interest
and Additional Interest, if any, to, but excluding the Redemption Date, subject to the right of
Holders of record on the relevant Record Date to receive interest due on the relevant Interest
Payment Date, with the net cash proceeds received by the Issuer from one or more Equity Offerings
to the extent that such net cash proceeds are received by or contributed to the Issuer; provided
that (i) at least 65.0% of the sum of the aggregate principal amount of the Notes originally issued
under this Indenture on the Issue Date and any Additional Notes issued under this Indenture after
the Issue Date remains outstanding immediately after the occurrence of each such redemption
(excluding Notes held by the Issuer or any of its Subsidiaries); and (ii) each such redemption
occurs within 90 days of the date of closing of each such Equity Offering.



(d) At any time and from time to time prior to February 15, 2014, the Issuer may redeem, up to
10% of the aggregate principal amount of the Notes (including Additional Notes, if any) that have
been issued under this Indenture at a redemption price of 103% of the principal amount thereof,
plus accrued and unpaid interest, if any, to the Redemption Date; provided that in no event may the
Issuer redeem more than 10% of the original aggregate principal amount of the Notes in any
twelve-month period.



(e) Any redemption or notice of redemption pursuant to this Section 3.07 may, at the Issuer’s
discretion, be subject to one or more conditions precedent, including, but not limited to, an
Equity Offering, other offering or other corporate transaction or event. Notice of any redemption
in respect of an Equity Offering may be given prior to the completion thereof.



(f) Except pursuant to clause (a), (c) or (d) of this Section 3.07, the Notes shall not be
redeemable at the Issuer’s option prior to February 15, 2014.



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



Section 3.08 Mandatory Redemption. The Issuer shall not be required to make any mandatory
redemption or sinking fund payments with respect to the Notes.



Section 3.09 Offers to Repurchase by Application of Excess Proceeds.



(a) In the event that, pursuant to Section 4.10 hereof, the Issuer shall be required to
commence an Asset Sale Offer, it shall follow the procedures specified below.



(b) The Asset Sale Offer shall remain open for a period of 20 Business Days following its
commencement and no longer, except to the extent that a longer period is required by applicable law
(the “Offer Period”). No later than five Business Days after the termination of the Offer Period
(the “Purchase Date”), the Issuer shall apply all Excess Proceeds (the “Offer Amount”) to the
purchase of Notes and, if required, Pari Passu Indebtedness (on a pro rata basis, if applicable),
or, if less than the Offer Amount has been tendered, all Notes and Pari Passu Indebtedness tendered
in response to the Asset Sale Offer. Payment for any Notes so purchased shall be made in the same
manner as interest payments are made.



(c) If the Purchase Date is on or after a Record Date and on or before the related Interest
Payment Date, any accrued and unpaid interest, up to but excluding the Purchase Date, shall 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 shall be payable to Holders who tender Notes pursuant to the Asset Sale
Offer.



(d) Upon the commencement of an Asset Sale Offer, the Issuer shall deliver electronically or
send, by first-class mail a notice to each of the Holders, with a copy to the Trustee. The notice
shall contain all instructions and materials necessary to enable such Holders to tender Notes
pursuant to the Asset Sale Offer. The Asset Sale Offer shall be made to all Holders and holders of
such Pari Passu Indebtedness. The notice, which shall govern the terms of the Asset Sale Offer,
shall state:


 


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(i) 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 shall remain open;




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




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




(iv) that, unless the Issuer defaults in making such payment, any Note accepted for
payment pursuant to the Asset Sale Offer shall cease to accrue interest on and after the
Purchase Date;




(v) that any Holder electing to have less than all of the aggregate principal amount of
its Notes purchased pursuant to an Asset Sale Offer may elect to have Notes purchased in an
amount not less than $2,000 and integral multiples of $1,000 in excess thereof;




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




(vii) that Holders shall be entitled to withdraw their election if the Issuer or the
Paying Agent, as the case may be, receives, not later than the close of business two
Business Days before the Purchase Date, a facsimile transmission or letter setting forth the
name of the Holder, the principal amount of the Note the Holder delivered for purchase and a
statement that such Holder is withdrawing his election to have such Note purchased;




(viii) that, if the aggregate principal amount of Notes and Pari Passu Indebtedness
surrendered by the holders thereof exceeds the Offer Amount, the Trustee shall select the
Notes and the Issuer shall select such Pari Passu Indebtedness to be purchased on a pro rata
basis based on the accreted value or principal amount of the Notes or such Pari Passu
Indebtedness tendered (with such adjustments as may be deemed appropriate by the Trustee so
that only Notes in an amount not less than $2,000 and integral multiples of $1,000 in excess
thereof are purchased); and




(ix) that Holders whose certificated Notes were purchased only in part shall be issued
new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or
transferred by book-entry transfer) representing the same indebtedness to the extent not
repurchased.



(e) On or before the Purchase Date, the Issuer shall, to the extent lawful, (1) accept for
payment, on a pro rata basis as described in clause (d)(viii) of this Section 3.09, the Offer
Amount of Notes or portions thereof validly tendered pursuant to the Asset Sale Offer, or if less
than the Offer Amount has been tendered, all Notes tendered and (2) deliver or cause to be
delivered to the Trustee the Notes properly accepted, together with an Officer’s Certificate
stating the aggregate principal amount of Notes or portions thereof so tendered.



(f) The Issuer, the Depositary or the Paying Agent, as the case may be, shall promptly mail or
deliver to each tendering Holder an amount equal to the purchase price of the Notes properly
tendered by such Holder and accepted by the Issuer for purchase, and the Issuer shall promptly
issue a new Note, and the Trustee, upon receipt of an Authentication Order, shall authenticate and
mail or deliver (or cause to be transferred by book-entry) such new Note to such Holder (it being
understood that, notwithstanding anything in this Indenture to the contrary, no Opinion of Counsel
or Officer’s Certificate is required for the Trustee to authenticate and mail or deliver such new
Note) in a principal amount equal to any unpurchased portion of the Note surrendered representing
the same indebtedness to the extent not repurchased. Any Note not so accepted shall be promptly
mailed or delivered by the Issuer to the Holder thereof. The Issuer shall publicly announce the
results of the Asset Sale Offer on or as soon as practicable after the Purchase Date.


 


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(g) Prior to 11:00 a.m. (New York City time) on the Purchase Date, the Issuer shall deposit
with the Trustee or with the Paying Agent money sufficient to pay the purchase price of and accrued
and unpaid interest on all Notes to be purchased on that Purchase Date. The Trustee or the Paying
Agent shall promptly return to the Issuer any money deposited with the Trustee or the Paying Agent
by the Issuer in excess of the amounts necessary to pay the purchase price of, and accrued and
unpaid interest on, all Notes to be purchased.



Other than as specifically provided in this Section 3.09 or Section 4.10 hereof, any purchase
pursuant to this Section 3.09 shall be made pursuant to the applicable provisions of Sections 3.01
through 3.06 hereof, and references therein to “redeem,” “redemption” and similar words shall be
deemed to refer to “purchase,” “repurchase” and similar words, as applicable.



ARTICLE 4




COVENANTS



Section 4.01 Payment of Notes. The Issuer shall pay or cause to be paid the principal of,
premium, if any, and interest on the Notes on the dates and in the manner provided in the Notes.
Principal, premium, if any, and interest shall be considered paid on the date due if the Paying
Agent, if other than the Issuer or a Guarantor or an Affiliate of the Issuer or a Guarantor, holds
as of 11:00 a.m. New York City time on the due date money deposited by the Issuer in immediately
available funds and designated for and sufficient to pay all principal, premium, if any, and
interest then due.



The Issuer shall pay all Additional Interest, if any, in the same manner on the dates and in
the amounts set forth in the applicable Registration Rights Agreement.



The Issuer shall pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal at the rate equal to the then applicable interest rate on the
Notes to the extent lawful; the Issuer shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest (without regard to any
applicable grace period) at the same rate to the extent lawful.



Section 4.02 Maintenance of Office or Agency. The Issuer shall maintain the offices or
agencies (which may be an office of the Trustee or an affiliate of the Trustee, Registrar or
co-registrar) required under Section 2.03 hereof where Notes may be surrendered for registration of
transfer or for exchange or presented for payment and where notices and demands to or upon the
Issuer in respect of the Notes and this Indenture may be served. The Issuer shall give prompt
written notice to the Trustee of the location, and any change in the location, of such office or
agency. If at any time the Issuer shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices
and demands may be made or served at the Corporate Trust Office.



The Issuer may also from time to time designate one or more other offices or agencies where
the Notes may be presented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided that no such designation or rescission shall in any manner
relieve the Issuer of its obligation to maintain such offices or agencies as required by Section
2.03 hereof for such purposes. The Issuer shall 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 Issuer hereby designates the Corporate Trust Office as one such office or agency of the
Issuer in accordance with Section 2.03 hereof.



Section 4.03 Reports and Other Information.



(a) Notwithstanding that the Issuer may not be subject to the reporting requirements of
Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on
forms provided for such annual and quarterly reporting pursuant to rules and regulations
promulgated by the SEC, the Issuer shall file with the SEC
(and deliver to the Trustee and Holders (without exhibits), without costs to any Holder,
within 15 days after it files them with the SEC) from and after the Issue Date,


 


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(i) within 90 days after the end of each fiscal year, annual reports on Form 10-K, or
any successor or comparable form, containing the information required to be contained
therein, or required in such successor or comparable form;




(ii) within 45 days after the end of each of the first three fiscal quarters of each
fiscal year, reports on Form 10-Q containing all quarterly information that would be
required to be contained in Form 10-Q, or any successor or comparable form; and




(iii) promptly from time to time after the occurrence of an event required to be
therein reported, such other reports on Form 8-K, or any successor or comparable form, in
each case, in a manner that complies in all material respects with the requirements
specified in such form; provided that the Issuer shall not be so obligated to file such
reports with the SEC (i) if the SEC does not permit such filing or (ii) prior to
consummation of the Exchange Offer or effectiveness of the Shelf Registration Statement with
respect to the Initial Notes, in which event the Issuer shall make available such
information to prospective purchasers of Notes, in addition to providing such information
(subject, in the case of required financial information, to exceptions consistent with the
presentation of financial information in the Offering Memorandum) to the Trustee and the
Holders, in each case within 15 days after the applicable time the Issuer would be required
to file such information with the SEC, pursuant to the immediately preceding sentence. To
the extent not satisfied by the foregoing, for so long as any Notes are outstanding, the
Issuer shall furnish to Holders and to securities analysts and prospective investors, upon
their request, the information required to be delivered pursuant to Rule 144A(d)(4) under
the Securities Act.



(b) The Issuer shall be permitted to satisfy its obligations under this Section 4.03 with
respect to financial information relating to the Issuer by furnishing financial information
relating to any parent entity of the Issuer so long as such parent entity of the Issuer provides a
Guarantee of the Notes; provided that the same is accompanied by consolidating information that
explains in reasonable detail the differences between the information relating to such parent
entity, on the one hand, and the information relating to the Issuer and its Restricted Subsidiaries
on a standalone basis, on the other hand.



(c) Notwithstanding the foregoing, the Issuer shall be deemed to have furnished such reports
referred to above to the Trustee and the Holders of the Notes if it has filed such report with the
SEC via the EDGAR filing system (or any successor thereto) and such reports are publicly available.



(d) Notwithstanding the foregoing, such requirements of this Section 4.03 shall be deemed
satisfied prior to the commencement of the Exchange Offer or the effectiveness of the Shelf
Registration Statement for the Initial Notes by (1) the filing with the SEC of the Exchange Offer
Registration Statement or the Shelf Registration Statement (or any other similar registration
statement), and any amendments thereto, with such financial information that satisfies Regulation
S-X of the Securities Act, subject to exceptions consistent with the presentation of financial
information in the Offering Memorandum, to the extent filed within the time specified above, or (2)
by posting on its website or providing to the Trustee by the applicable date the Issuer would be
required to file such information as specified above, the financial information (including a
“Management’s Discussion and Analysis of Financial Condition and Results of Operations” section)
that would be required to be included in such reports, subject to exceptions consistent with the
presentation of financial information in the Offering Memorandum, to the extent posted within the
times specified above.



Section 4.04 Compliance Certificate.



(a) The Issuer shall deliver to the Trustee, within 120 days after the end of each fiscal year
ending after the Issue Date (or 30 days after such later date as specified in Section 4.03(a)(i)),
a certificate from the principal executive officer, principal financial officer or principal
accounting officer stating that a review of the activities of the Issuer and its Restricted
Subsidiaries during the preceding fiscal year has been made under the supervision of the signing
Officer with a view to determining whether the Issuer and its Restricted Subsidiaries have kept,
observed, performed and fulfilled their obligations under this Indenture, and further stating, as
to such Officer signing such certificate, that to the best of his or her knowledge the Issuer and its Restricted
Subsidiaries have kept, observed, performed and fulfilled each and every condition and covenant
contained in this Indenture during such fiscal year and is not in default in the performance or
observance of any of the terms, provisions, covenants and conditions of this Indenture (or, if a
Default shall have occurred, describing all such Defaults of which he or she may have knowledge and
what action the Issuer is taking or proposes to take with respect thereto).




 


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(b) When any Default has occurred and is continuing under this Indenture, or if the Trustee or
the holder of any other evidence of Indebtedness of the Issuer or any Restricted Subsidiary gives
any notice or takes any other action with respect to a claimed Default, the Issuer shall promptly
(which shall be no more than five Business Days after becoming aware of such Default) deliver to
the Trustee by registered or certified mail or by facsimile transmission an Officer’s Certificate
specifying such event and what action the Issuer proposes to take with respect thereto.



Section 4.05 Taxes. The Issuer shall pay or discharge, and shall cause each of its Restricted
Subsidiaries to pay or discharge, prior to delinquency, all material taxes, assessments, and
governmental levies except such as are contested in good faith and by appropriate negotiations or
proceedings or where the failure to effect such payment or discharge is not adverse in any material
respect to the Holders.



Section 4.06 Stay, Extension and Usury Laws. The Issuer and each of the Guarantors covenant
(to the extent that they may lawfully do so) that they shall 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 Notes; and the Issuer and each of the Guarantors (to the
extent that they may lawfully do so) hereby expressly waive all benefit or advantage of any such
law, and (to the extent that they may lawfully do so) covenant that they shall not, by resort to
any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but
shall suffer and permit the execution of every such power as though no such law has been enacted.



Section 4.07 Limitation on Restricted Payments.



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




(i) declare or pay any dividend or make any payment or distribution on account of the
Issuer’s or any of its Restricted Subsidiaries’ Equity Interests, including any dividend or
distribution payable in connection with any merger, amalgamation or consolidation, other
than:




(A) dividends or distributions by the Issuer payable solely in Equity Interests
(other than Disqualified Stock) of the Issuer; or




(B) dividends or distributions by a Restricted Subsidiary so long as, in the
case of any dividend or distribution payable on or in respect of any class or series
of securities issued by a Restricted Subsidiary other than a Wholly-Owned
Subsidiary, the Issuer or a Restricted Subsidiary receives at least its pro rata
share of such dividend or distribution in accordance with its Equity Interests in
such class or series of securities;




(ii) purchase, redeem, defease or otherwise acquire or retire for value any Equity
Interests of the Issuer or any direct or indirect parent company of the Issuer, including in
connection with any merger, amalgamation or consolidation;




(iii) make any principal payment on, or redeem, repurchase, defease or otherwise
acquire or retire for value, in each case prior to any scheduled repayment, sinking fund
payment or maturity, any Subordinated Indebtedness, other than:




(A) Indebtedness permitted under clauses (vii) and (viii) of Section 4.09(b)
hereof; or


 


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(B) the purchase, repurchase or other acquisition of such Subordinated
Indebtedness purchased in anticipation of satisfying a sinking fund obligation,
principal installment or final maturity, in each case due within one year of the
date of purchase, repurchase or acquisition; or




(iv) make any Restricted Investment



(all such payments and other actions set forth in clauses (i) through (iv) above being collectively
referred to as “Restricted Payments”), unless, at the time of such Restricted Payment:





(A) no Default shall have occurred and be continuing or would occur as a consequence
thereof;




(B) immediately after giving effect to such transaction on a pro forma basis, the
Issuer could incur $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage
Ratio test set forth in Section 4.09(a) hereof (the “Fixed Charge Coverage Test”); and




(C) such Restricted Payment, together with the aggregate amount of all other Restricted
Payments made by the Issuer and its Restricted Subsidiaries after the Issue Date (including
Restricted Payments permitted by clauses (i), (ii) (with respect to the payment of dividends
on Refunding Capital Stock pursuant to clause (b) thereof only), (vi)(C) and (xi) of Section
4.07(b) hereof, but excluding all other Restricted Payments permitted by Section 4.07(b)
hereof), is less than the sum of (without duplication):




(1) 50% of the Consolidated Net Income of the Issuer for the period (taken as
one accounting period) from the beginning of the first fiscal quarter commencing
after the date of this Indenture to the end of the Issuer’s most recently ended
fiscal quarter for which internal financial statements are available at the time of
such Restricted Payment, or, in the case such Consolidated Net Income for such
period is a deficit, minus 100% of such deficit; plus




(2) 100% of the aggregate net cash proceeds and the fair market value of
marketable securities or other property received by the Issuer since immediately
after the Issue Date from the issue or sale of:




(i) (A) Equity Interests of the Issuer, including Treasury Capital
Stock, but excluding cash proceeds and the fair market value of marketable
securities or other property received from the sale of:




(x) Equity Interests to any future, present or former employees,
directors, officers, managers, distributors or consultants of the
Issuer, any direct or indirect parent company of the Issuer or any of
the Issuer’s Subsidiaries after the Issue Date to the extent such
amounts have been applied to Restricted Payments made in accordance
with clause (iv) of Section 4.07(b) hereof; and




(y) Designated Preferred Stock; and




(B) to the extent such net cash proceeds are actually contributed to
the Issuer, Equity Interests of any direct or indirect parent company of the
Issuer (excluding contributions of the proceeds from the sale of Designated
Preferred Stock of such company or contributions to the extent such amounts
have been applied to Restricted Payments made in accordance with clause (iv)
of Section 4.07(b) hereof); or




(ii) debt securities of the Issuer that have been converted into or
exchanged for such Equity Interests of the Issuer; provided that this clause
(B) shall not include the proceeds from (W) Refunding Capital Stock, (X)
Equity Interests or convertible debt securities of the Issuer sold to a Restricted Subsidiary, (Y) Disqualified
Stock or debt securities that have been converted into Disqualified Stock or
(Z) Excluded Contributions; plus


 


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(3) 100% of the aggregate amount of cash and the fair market value of
marketable securities or other property contributed to the capital of the Issuer
following the Issue Date (other than by a Restricted Subsidiary and other than any
Excluded Contributions); plus




(4) 100% of the aggregate amount received in cash and the fair market value of
marketable securities or other property received by means of:




(i) the sale or other disposition (other than to the Issuer or a
Restricted Subsidiary) of Restricted Investments made by the Issuer or its
Restricted Subsidiaries and repurchases and redemptions of such Restricted
Investments from the Issuer or its Restricted Subsidiaries (other than by
the Issuer or a Restricted Subsidiary) and repayments of loans or advances
which constitute Restricted Investments made by the Issuer or its Restricted
Subsidiaries, in each case after the Issue Date not to exceed the amount of
such Investments previously made in such Person; or




(ii) the sale (other than to the Issuer or a Restricted Subsidiary) of
the stock of an Unrestricted Subsidiary or a distribution from an
Unrestricted Subsidiary (other than, in each case, to the extent the
Investment in such Unrestricted Subsidiary was made by the Issuer or a
Restricted Subsidiary pursuant to clause s(ix) of Section 4.07(b) hereof or
to the extent such Investment constituted a Permitted Investment) or a
dividend from an Unrestricted Subsidiary after the Issue Date; plus




(5) in the case of the redesignation of an Unrestricted Subsidiary as a
Restricted Subsidiary after the Issue Date, the fair market value of the Investment
in such Unrestricted Subsidiary (which, if the fair market value of such Investment
shall exceed $10 million, shall be determined by the board of directors of the
Issuer whose resolution with respect thereto shall be delivered to the Trustee) at
the time of the redesignation of such Unrestricted Subsidiary as a Restricted
Subsidiary, other than to the extent the Investment in such Unrestricted Subsidiary
was made by the Issuer or a Restricted Subsidiary pursuant to clause (ix) of Section
4.07(b) hereof or to the extent such Investment constituted a Permitted Investment
and not to exceed the amount of such Investments previously made in such Person.



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




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




(ii) (A) the redemption, repurchase, retirement or other acquisition of any Equity
Interests (“Treasury Capital Stock”) or Subordinated Indebtedness of the Issuer or any
Equity Interests of any direct or indirect parent company of the Issuer, in exchange for, or
out of the proceeds of the substantially concurrent sale (other than to a Restricted
Subsidiary) of, Equity Interests of the Issuer or any direct or indirect parent company of
the Issuer to the extent contributed to the Issuer (in each case, other than any
Disqualified Stock) (“Refunding Capital Stock”) and (B) if immediately prior to the
retirement of Treasury Capital Stock, the declaration and payment of dividends thereon was
permitted under clause (vi) of this Section 4.07(b), the declaration and payment of dividend
on the Refunding Capital Stock (other than Refunding Capital Stock the proceeds of which
were used to redeem, repurchase, retire or otherwise acquire any Equity Interests of any
direct or indirect parent company of the Issuer) in an aggregate amount per year no greater
than the aggregate amount of dividends per annum that were declarable and payable on such
Treasury Capital Stock immediately prior to such retirement;


 


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(iii) the defeasance, redemption, repurchase, exchange or other acquisition or
retirement of (1) Subordinated Indebtedness of the Issuer or a Guarantor made by exchange
for, or out of the proceeds of a sale made within 90 days of, new Indebtedness of the Issuer
or a Guarantor or (2) Disqualified Stock of the Issuer or a Guarantor made by exchange for,
or out of the proceeds of a sale made within 90 days of, Disqualified Stock of the Issuer or
a Guarantor, that, in each case, is incurred in compliance with Section 4.09 hereof so long
as:




(A) the principal amount (or accreted value, if applicable) of such new
Indebtedness or the liquidation preference of such new Disqualified Stock does not
exceed the principal amount of (or accreted value, if applicable), plus any accrued
and unpaid interest on, the Subordinated Indebtedness or the liquidation preference
of, plus any accrued and unpaid dividends on, the Disqualified Stock being so
defeased, redeemed, repurchased, exchanged, acquired or retired for value, plus the
amount of any reasonable tender premium, defeasance costs and any fees and expenses
incurred in connection with the issuance of such new Indebtedness or Disqualified
Stock;




(B) such new Indebtedness is subordinated to the Notes or the applicable
Guarantee at least to the same extent as such Subordinated Indebtedness so defeased,
redeemed, repurchased, exchanged, acquired or retired;




(C) such new Indebtedness or Disqualified Stock has a final scheduled maturity
date equal to or later than the final scheduled maturity date of the Subordinated
Indebtedness or Disqualified Stock being so defeased, redeemed, repurchased,
exchanged, acquired or retired; and




(D) such new Indebtedness or Disqualified Stock has a Weighted Average Life to
Maturity equal to or greater than the remaining Weighted Average Life to Maturity of
the Subordinated Indebtedness or Disqualified Stock being so defeased, redeemed,
repurchased, exchanged, acquired or retired;




(iv) a Restricted Payment to pay for the repurchase, retirement or other acquisition or
retirement for value of Equity Interests (other than Disqualified Stock) of the Issuer or
any direct or indirect parent company of the Issuer held by any future, present or former
employee, director, officer, manager or consultant (including trustees, administrators,
executors, powers of attorney, heirs, assignees, estates and beneficiaries of any of the
foregoing) of the Issuer, any of its Subsidiaries or any of its direct or indirect parent
companies pursuant to any management equity plan or stock option plan or any other
management or employee benefit plan or agreement, or any stock subscription or shareholder
agreement (including, for the avoidance of doubt, any principal and interest payable on any
notes issued by the Issuer or any direct or indirect parent company of the Issuer in
connection with such repurchase, retirement or other acquisition); provided that the
aggregate amount of Restricted Payments made under this clause does not exceed $2.5 million
in the first fiscal year following the Issue Date (with unused amounts in any fiscal year
being carried over to succeeding fiscal years); provided, further, that each of the amounts
in any fiscal year under this clause may be increased by an amount not to exceed:




(A) the cash proceeds from the sale of Equity Interests (other than
Disqualified Stock) of the Issuer and, to the extent contributed to the Issuer, the
cash proceeds from the sale of Equity Interests of any direct or indirect parent
company of the Issuer, in each case to any future, present or former employees,
directors, officers, managers or consultants of the Issuer, any of its Subsidiaries
or any of its direct or indirect parent companies that occurs after the Issue Date,
to the extent the cash proceeds from the sale of such Equity Interests have not
otherwise been applied to the payment of Restricted Payments by virtue of clause (C)
of Section 4.07(a)(iv) hereof; plus




(B) the cash proceeds of key man life insurance policies received by the Issuer
or its Restricted Subsidiaries after the Issue Date; less


 


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(C) the amount of any Restricted Payments previously made with the cash
proceeds described in clauses (A) and (B) of this clause (iv); and provided,
further, that cancellation of Indebtedness owing to the Issuer from any future,
present or former employees, directors, officers,
managers or consultants (and the successors listed above) of the Issuer, any
direct or indirect parent company of the Issuer or any of the Issuer’s Restricted
Subsidiaries in connection with a repurchase of Equity Interests of the Issuer or
any of its direct or indirect parent companies shall not be deemed to constitute a
Restricted Payment for purposes of this Section 4.07 or any other provision of this
Indenture;




(v) the declaration and payment of dividends to holders of any class or series of
Disqualified Stock of the Issuer or any of its Restricted Subsidiaries or any class or
series of Preferred Stock of any Restricted Subsidiary issued in accordance with Section
4.09 hereof to the extent such dividends are included in the definition of “Fixed Charges”;




(vi) (A) the declaration and payment of dividends to holders of any class or series of
Designated Preferred Stock (other than Disqualified Stock) issued by the Issuer or any of
its Restricted Subsidiaries after the Issue Date;




(B) the declaration and payment of dividends to any direct or indirect parent company
of the Issuer, the proceeds of which shall be used to fund the payment of dividends to
holders of any class or series of Designated Preferred Stock (other than Disqualified Stock)
issued by such parent company after the Issue Date, provided that the amount of dividends
paid pursuant to this clause (b) shall not exceed the aggregate amount of cash actually
contributed to the Issuer from the sale of such Designated Preferred Stock; or




(C) the declaration and payment of dividends on Refunding Capital Stock that is
Preferred Stock in excess of the dividends declarable and payable thereon pursuant to clause
(ii) of this Section 4.07(b);




provided, in the case of each of (A), (B) and (C) of this clause (vi), that for the most
recently ended four full fiscal quarters for which internal financial statements are
available immediately preceding the date of issuance of such Designated Preferred Stock or
the declaration of such dividends on Refunding Capital Stock that is Preferred Stock, after
giving effect to such issuance or declaration on a pro forma basis, the Issuer could incur
at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test
under Section 4.09(a);




(vii) payments made or expected to be made by the Issuer or any Restricted Subsidiary
in respect of withholding or similar taxes payable upon exercise of Equity Interests by any
future, present or former employee, director, officer, manager or consultant and any
repurchases of Equity Interests deemed to occur upon exercise of stock options, warrants, or
other convertible, exchangeable or exercisable instruments if such Equity Interests
represent a portion of the exercise price of such instruments or required withholding or
similar taxes;




(viii) Restricted Payments in an amount equal to the amount of Excluded Contributions
previously received;




(ix) other Restricted Payments in an aggregate amount taken together with all other
Restricted Payments made pursuant to this clause (ix) not to exceed the greater of (a) $20.0
million and (b) 2.5% of Consolidated Total Assets;




(x) distributions or payments of Securitization Fees;




(xi) the repurchase, redemption or other acquisition or retirement for value of any
Subordinated Indebtedness pursuant to the provisions similar to those described under
Section 4.10 and Section 4.14 hereof; provided that all Notes validly tendered by Holders in
connection with a Change of Control Offer or Asset Sale Offer, as applicable, have been
repurchased, redeemed, acquired or retired for value;


 


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(xii) the declaration and payment of dividends or distributions by the Issuer to, or
the making of loans to, any direct or indirect parent company of the Issuer in amounts
required for any direct or indirect parent company of the Issuer to pay, in each case
without duplication,




(A) franchise and excise taxes and other fees, taxes and expenses required to
maintain their corporate existence;




(B) foreign, federal, state and local income and similar taxes, to the extent
such income taxes are attributable to the income of the Issuer and its Restricted
Subsidiaries and, to the extent of the amount actually received from its
Unrestricted Subsidiaries, in amounts required to pay such taxes to the extent
attributable to the income of such Unrestricted Subsidiaries; provided that in each
case the amount of such payments in any fiscal year does not exceed the amount that
the Issuer and its Restricted Subsidiaries would be required to pay in respect of
foreign, federal, state and local taxes for such fiscal year were the Issuer, its
Restricted Subsidiaries and its Unrestricted Subsidiaries (to the extent described
above) to pay such taxes separately from any such parent company;




(C) general corporate operating and overhead costs and expenses (including
customary salary, bonus and other benefits payable to employees, directors, officers
and managers of any direct or indirect parent company of the Issuer to the extent
such costs and expenses are attributable to the ownership or operation of the Issuer
and its Restricted Subsidiaries, including the Issuer’s proportionate share of such
amounts relating to such parent entity being a public company, not to exceed $5
million in the aggregate in any fiscal year;




(xiii) the distribution, by dividend or otherwise, of shares of Capital Stock of, or
Indebtedness owed to the Issuer or a Restricted Subsidiary by, Unrestricted Subsidiaries
(other than Unrestricted Subsidiaries, the primary assets of which are Cash Equivalents);
provided that at the time of, and after giving effect to, any Restricted Payment permitted
under clause (ix), no Default shall have occurred and be continuing or would occur as a
consequence thereof; and




(xiv) (A) the distributions or other deposits into the (x) CVR Escrow Account or (y)
the Excess Employee Escrow Account in each case pursuant to the terms of the CVR Documents
or the Merger Agreement, and (B) any distribution, in accordance with the terms of the CVR
Documents or the Merger Agreement, from: (i) the CVR Escrow Account; (ii) the Excess
Employee Escrow Account or; (iii) the 280G Escrow Account.



(c) As of the Issue Date, all of the Issuer’s Subsidiaries shall be Restricted Subsidiaries
except as expressly set forth in the definition of “Unrestricted Subsidiary”. The Issuer shall not
permit any Unrestricted Subsidiary to become a Restricted Subsidiary except pursuant to the next to
the last sentence of the definition of “Unrestricted Subsidiary.” For purposes of designating any
Restricted Subsidiary as an Unrestricted Subsidiary, all outstanding Investments by the Issuer and
its Restricted Subsidiaries (except to the extent repaid) in the Subsidiary so designated shall be
deemed to be Restricted Payments in an amount determined as set forth in the penultimate sentence
of the definition of “Investments.” Such designation shall be permitted only if a Restricted
Payment in such amount would be permitted at such time, whether pursuant to Section 4.07(a) hereof
or under clause (ix) of Section 4.07(b), or pursuant to the definition of “Permitted Investments,”
and if such Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. Unrestricted
Subsidiaries shall not be subject to any of the restrictive covenants set forth in this Indenture.



Section 4.08 Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries.



(a) The Issuer shall not, and shall not permit any of its Restricted Subsidiaries that is not
a Guarantor to, directly or indirectly, create or otherwise cause or suffer to exist or become
effective any consensual encumbrance or consensual restriction on the ability of any such
Restricted Subsidiary to:


 


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(i) (A) pay dividends or make any other distributions to the Issuer or any of its
Restricted Subsidiaries on its Capital Stock or with respect to any other interest or
participation in, or measured by, its profits, or




(B) pay any Indebtedness owed to the Issuer or any of its Restricted
Subsidiaries that is a Guarantor;




(ii) make loans or advances to the Issuer or any of its Restricted Subsidiaries that is
a Guarantor; or




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



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




(i) contractual encumbrances or restrictions in effect on the Issue Date, including
pursuant to the ABL Facility and the related documentation and Hedging Obligations and Bank
Products;




(ii) this Indenture, the Notes and the guarantees thereof and the Collateral Documents;




(iii) purchase money obligations for property acquired in the ordinary course of
business and Capital Lease Obligations that impose restrictions of the nature discussed in
clause (iii) of Section 4.08(a) hereof on the property so acquired;




(iv) applicable law or any applicable rule, regulation or order;




(v) any agreement or other instrument of a Person acquired by or merged or consolidated
with or into the Issuer or any of its Restricted Subsidiaries in existence at the time of
such acquisition or at the time it merges with or into the Issuer or any of its Restricted
Subsidiaries or assumed in connection with the acquisition of assets from such Person (but,
in any such case, not created in contemplation thereof), which encumbrance or restriction is
not applicable to any Person, or the properties or assets of any Person, other than the
Person so acquired and its Subsidiaries, or the property or assets of the Person so acquired
and its Subsidiaries or the property or assets so acquired;




(vi) contracts for the sale of assets, including customary restrictions with respect to
a Subsidiary of the Issuer pursuant to an agreement that has been entered into for the sale
or disposition of all or substantially all of the Capital Stock or assets of such
Subsidiary;




(vii) Permitted Additional Parity Debt and other Secured Indebtedness otherwise
permitted to be incurred pursuant to Section 4.09 and Section 4.12 hereof that limit the
right of the debtor to dispose of the assets securing such Indebtedness;




(viii) restrictions on cash or other deposits or net worth imposed by (i) customers,
lenders or suppliers or (ii) other third parties under contracts entered into in the
ordinary course of business;




(ix) customary provisions in joint venture agreements and other similar agreements
relating solely to such joint venture;




(x) customary provisions contained in leases, sub-leases, licenses, sub-licenses or
similar agreements, including with respect to intellectual property and other agreements, in
each case, entered into in the ordinary course of business;



 


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(xi) restrictions created in connection with any Qualified Securitization
Facility that, in the good faith determination of the Issuer are necessary or advisable to
effect such Qualified Securitization Facility;




(xii) restrictions or conditions contained in any trading, netting, operating,
construction, service, supply, purchase, sale or other agreement to which the Issuer or any
of its Restricted Subsidiaries is a party entered into in the ordinary course of business;
provided that such agreement prohibits the encumbrance of solely the property or assets of
the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment
rights arising thereunder or the proceeds thereof and does not extend to any other asset or
property of the Issuer or such Restricted Subsidiary or the assets or property of another
Restricted Subsidiary;




(xiii) any encumbrance or restriction with respect to a Guarantor or Securitization
Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an
agreement that such Subsidiary is a party to or entered into before the date on which such
Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into
in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such
encumbrance or restriction does not extend to any assets or property of the Issuer or any
other Restricted Subsidiary other than the assets and property of such Subsidiary;




(xiv) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be
incurred subsequent to the Issue Date pursuant to Section 4.09; provided that, in the
judgment of the Issuer, such incurrence shall not materially impair the Issuer’s ability to
make payments on the Notes when due;




(xv) any encumbrances or restrictions of the type referred to in clauses (i), (ii) and
(iii) of Section 4.08(a) hereof imposed by any amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacements or refinancings of the contracts,
instruments or obligations referred to in clauses (i) through (xiv) of this Section 4.08(b);
provided that such amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements or refinancings are, in the good faith judgment of the
Issuer, no more restrictive in any material respect with respect to such encumbrance and
other restrictions taken as a whole than those prior to such amendment, modification,
restatement, renewal, increase, supplement, refunding, replacement or refinancing; and




(xvi) any encumbrance or restriction imposed by the CVR Documents or the Merger
Agreement.



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



(a) The Issuer shall not, and shall 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 (collectively, “incur” and collectively, an “incurrence”) with
respect to any Indebtedness (including Acquired Indebtedness) and the Issuer shall not issue any
shares of Disqualified Stock and shall not permit any Restricted Subsidiary to issue any shares of
Disqualified Stock or Preferred Stock; provided that the Issuer may incur Indebtedness (including
Acquired Indebtedness) or issue shares of Disqualified Stock, and any Guarantor may incur
Indebtedness (including Acquired Indebtedness), issue shares of Disqualified Stock and issue shares
of Preferred Stock, if the Fixed Charge Coverage Ratio on a consolidated basis for the Issuer and
its Restricted Subsidiaries for the Issuer’s most recently ended four 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 Preferred Stock is issued would have been at
least 2.00 to 1.00, 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 Preferred Stock had been issued, as the case may be, and the application of proceeds therefrom
had occurred at the beginning of such four-quarter period.



(b) The provisions of Section 4.09(a) hereof shall not apply to:


 


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(i) the incurrence of Indebtedness pursuant to Credit Facilities by the Issuer or any
Restricted Subsidiary and the issuance and creation of letters of credit and bankers’
acceptances thereunder (with letters of credit and bankers’ acceptances being deemed to have
a principal amount equal to the face amount thereof); provided that the aggregate principal
amount of such Indebtedness outstanding pursuant to this Section 4.09(b)(i) without
duplication, does not exceed an amount equal to the greater of (A) $65.0 million and (B) the
Borrowing Base at the time such debt is incurred;




(ii) the incurrence by the Issuer and any Guarantor of Indebtedness represented by the
Notes (including any guarantee thereof) and the exchange notes and related exchange
guarantees to be issued in exchange for the Notes and the Guarantees pursuant to the
Registration Rights Agreement (but excluding any Additional Notes);




(iii) Indebtedness of the Issuer and its Restricted Subsidiaries in existence on the
Issue Date (other than Indebtedness described in clauses (i) and (ii) of this Section
4.09(b)) outstanding on the Issue Date);




(iv) Indebtedness (including Capitalized Lease Obligations and Purchase Money
Obligations) and Disqualified Stock incurred or issued by the Issuer or any Restricted
Subsidiary and Preferred Stock issued by any Restricted Subsidiary, to finance the purchase,
restoration, lease or improvement of property (real or personal), equipment or other
assets, including assets that are used or useful in a Similar Business, whether through the
direct purchase of assets or the Capital Stock of any Person owning such assets in an
aggregate principal amount, together with any Refinancing Indebtedness in respect thereof
and all other Indebtedness, Disqualified Stock and/or Preferred Stock incurred or issued and
outstanding under this clause (iv), not to exceed the greater of (a) $15.0 million and (b)
2.5% of Consolidated Total Assets at any time outstanding;




(v) Indebtedness incurred by the Issuer or any of its Restricted Subsidiaries
constituting reimbursement obligations with respect to letters of credit, bank guarantees,
banker’s acceptances, warehouse receipts, or similar instruments issued or created in the
ordinary course of business, including letters of credit in respect of workers’ compensation
claims, health, disability or other employee benefits or property, casualty or liability
insurance or self-insurance or other Indebtedness with respect to reimbursement type
obligations regarding workers’ compensation claims, health, disability or other employee
benefits or property, casualty or liability insurance or self-insurance; provided that upon
the drawing of such letters of credit or the incurrence of such Indebtedness, such
obligations are reimbursed within 30 days following such drawing or incurrence;




(vi) Indebtedness arising from agreements of the Issuer or its Restricted Subsidiaries
providing for indemnification, adjustment of purchase price or similar obligations, in each
case, incurred or assumed in connection with the disposition of any business, assets or a
Subsidiary, other than guarantees of Indebtedness incurred by any Person acquiring all or
any portion of such business, assets or a Subsidiary for the purpose of financing such
acquisition; provided that such Indebtedness is not reflected on the balance sheet of the
Issuer, or any of its Restricted Subsidiaries (contingent obligations referred to in a
footnote to financial statements and not otherwise reflected on the balance sheet shall not
be deemed to be reflected on such balance sheet for purposes of this clause (vi));




(vii) Indebtedness of the Issuer to a Restricted Subsidiary; provided that any such
Indebtedness owing to a Restricted Subsidiary that is not a Guarantor is expressly
subordinated in right of payment to the Notes; provided, further, that any subsequent
issuance or transfer of any Capital Stock or any other event which results in any such
Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer
of any such Indebtedness (except to the Issuer or another Restricted Subsidiary or any
pledge of such Indebtedness constituting a Permitted Lien (but not foreclosure thereon))
shall be deemed, in each case, to be an incurrence of such Indebtedness not permitted by
this clause;


 


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(viii) Indebtedness of a Restricted Subsidiary to the Issuer or another Restricted
Subsidiary; provided that if a Guarantor incurs such Indebtedness to a Restricted Subsidiary
that is not a Guarantor, such Indebtedness is expressly subordinated in right of payment to
the Guarantee of the Notes of such Guarantor; provided, further, that any subsequent transfer of any such Indebtedness
(except to the Issuer or another Restricted Subsidiary or any pledge of such Indebtedness
constituting a Permitted Lien (but not foreclosure thereon)) shall be deemed, in each case,
to be an incurrence of such Indebtedness not permitted by this clause;




(ix) shares of Preferred Stock of a Restricted Subsidiary issued to the Issuer or
another Restricted Subsidiary; provided that any subsequent issuance or transfer of any
Capital Stock or any other event which results in any such Restricted Subsidiary ceasing to
be a Restricted Subsidiary or any other subsequent transfer of any such shares of Preferred
Stock (except to the Issuer or another of its Restricted Subsidiaries) shall be deemed, in
each case, to be an issuance of such shares of Preferred Stock not permitted by this clause;




(x) Hedging Obligations (excluding Hedging Obligations entered into for speculative
purposes);




(xi) obligations in respect of self-insurance and obligations in respect of
performance, bid, appeal and surety bonds and performance and completion guarantees and
similar obligations provided by the Issuer or any of its Restricted Subsidiaries or
obligations in respect of letters of credit, bank guarantees or similar instruments related
thereto, in each case in the ordinary course of business;




(xii) Indebtedness or Disqualified Stock of the Issuer and Indebtedness, Disqualified
Stock or Preferred Stock of the Issuer or any Restricted Subsidiary not otherwise permitted
hereunder in an aggregate principal amount or liquidation preference which, when aggregated
with the principal amount and liquidation preference of all other Indebtedness, Disqualified
Stock and Preferred Stock then outstanding and incurred pursuant to this clause (xii), does
not at any one time outstanding exceed $20.0 million (it being understood that any
Indebtedness, Disqualified Stock or Preferred Stock incurred pursuant to this clause (xii)
shall cease to be deemed incurred or outstanding for purposes of this clause (xii) but shall
be deemed incurred for the purposes of the first paragraph of this covenant from and after
the first date on which the Issuer or such Restricted Subsidiary could have incurred such
Indebtedness, Disqualified Stock or Preferred Stock under Section 4.09(a) hereof without
reliance on this clause (xii));




(xiii) the incurrence by the Issuer or any Restricted Subsidiary of Indebtedness, the
issuance by the Issuer or any Restricted Subsidiary of Disqualified Stock or the issuance by
any Restricted Subsidiary of Preferred Stock which serves to extend, replace, refund,
refinance, renew or defease any Indebtedness incurred or Disqualified Stock or Preferred
Stock issued as permitted under Section 4.09(a) hereof and clauses (ii) and (iii) of this
Section 4.09(b) and clauses (xiii) and (xiv) of this Section 4.09(b) or any Indebtedness
incurred or Disqualified Stock or Preferred Stock issued to so extend, replace, refund,
refinance, renew or defease such Indebtedness, Disqualified Stock or Preferred Stock
including additional Indebtedness, Disqualified Stock or Preferred Stock incurred to pay
premiums (including reasonable tender premiums), defeasance costs and fees in connection
therewith (the “Refinancing Indebtedness”) prior to its respective maturity; provided that
such Refinancing Indebtedness:




(A) has a Weighted Average Life to Maturity at the time such Refinancing
Indebtedness is incurred which is not less than the remaining Weighted Average Life
to Maturity of the Indebtedness, Disqualified Stock or Preferred Stock being
extended, replaced, refunded, refinanced, renewed or defeased;




(B) to the extent such Refinancing Indebtedness extends, replaces, refunds,
refinances, renews or defeases (i) Indebtedness subordinated to the Notes or any
Guarantee thereof, such Refinancing Indebtedness is subordinated to the Notes or the
Guarantee thereof at least to the same extent as the Indebtedness being extended,
replaced, refunded, refinanced, renewed or defeased or (ii) Disqualified Stock or
Preferred Stock, such Refinancing Indebtedness must be Disqualified Stock or
Preferred Stock, respectively; and




(C) shall not include:


 


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(1) Indebtedness, Disqualified Stock or Preferred Stock of a Subsidiary
of the Issuer that is not a Guarantor that refinances Indebtedness or
Disqualified Stock of the Issuer;




(2) Indebtedness, Disqualified Stock or Preferred Stock of a Subsidiary
of the Issuer that is not a Guarantor that refinances Indebtedness,
Disqualified Stock or Preferred Stock of a Guarantor; or




(3) Indebtedness or Disqualified Stock of the Issuer or Indebtedness,
Disqualified Stock or Preferred Stock of a Restricted Subsidiary that
refinances Indebtedness, Disqualified Stock or Preferred Stock of an
Unrestricted Subsidiary;




and, provided, further, that subclause (A) of this clause (xiii) shall not apply to any
extension, replacement, refunding, refinancing, renewal or defeasance of any Secured
Indebtedness (other than Additional Parity Debt or any Secured Indebtedness secured on a
junior priority basis to the Notes).




(xiv) (A) Indebtedness or Disqualified Stock of the Issuer or Indebtedness,
Disqualified Stock or Preferred Stock of a Restricted Subsidiary incurred or issued to
finance an acquisition or (B) Indebtedness, Disqualified Stock or Preferred Stock of Persons
that are acquired by the Issuer or any Restricted Subsidiary or merged into or consolidated
with the Issuer or a Restricted Subsidiary in accordance with the terms of this Indenture;
provided that in the case of (A) and (B), after giving effect to such acquisition, merger,
amalgamation or consolidation either




(1) the Issuer would be permitted to incur at least $1.00 of additional
Indebtedness pursuant to the Fixed Charge Coverage Test, or




(2) the Fixed Charge Coverage Ratio for the Issuer is greater than the Fixed
Charge Coverage Ratio of the Issuer immediately prior to such acquisition, merger,
amalgamation or consolidation;




(xv) Indebtedness arising from the honoring by a bank or other financial institution of
a check, draft or similar instrument drawn against insufficient funds in the ordinary course
of business, provided that such Indebtedness is extinguished within ten (10) Business Days
of its incurrence;




(xvi) Indebtedness of the Issuer or any of its Restricted Subsidiaries supported by a
letter of credit issued pursuant to Credit Facilities that is incurred under clause (i) of
this Section 4.09(b), in a principal amount not in excess of the stated amount of such
letter of credit;




(xvii) (A) any guarantee by the Issuer or a Restricted Subsidiary of Indebtedness or
other obligations of any Restricted Subsidiary so long as the incurrence of such
Indebtedness incurred by such Restricted Subsidiary is permitted under the terms of this
Indenture, or




(B) any guarantee by a Restricted Subsidiary of Indebtedness of the Issuer; provided
that such guarantee is incurred in accordance with Section 4.15 hereof;




(xviii) Indebtedness consisting of Indebtedness issued by the Issuer or any of its
Restricted Subsidiaries to future, present or former employees, directors, officers,
managers and consultants thereof (including trustees, administrators, executors, powers of
attorney, heirs, assignees, estates and beneficiaries), in each case to finance the purchase
or redemption of Equity Interests of the Issuer or any direct or indirect parent company of
the Issuer to the extent described in clause (iv) of Section 4.07(b) hereof;




(xix) customer deposits and advance payments received in the ordinary course of
business from customers for goods purchased in the ordinary course of business;


 


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(xx) Indebtedness in respect of Bank Products provided by banks or other financial
institutions to the Issuer and its Restricted Subsidiaries in the ordinary course of
business;




(xxi) Indebtedness incurred by a Restricted Subsidiary in connection with bankers’
acceptances, discounted bills of exchange or the discounting or factoring of receivables for
credit management purposes, in each case incurred or undertaken in the ordinary course of
business on arm’s length commercial terms on a recourse basis;




(xxii) Indebtedness of the Issuer or any of its Restricted Subsidiaries consisting of
(A) the financing of insurance premiums or (B) take-or-pay obligations contained in supply
arrangements in each case, incurred in the ordinary course of business; and




(xxiii) Indebtedness of the Issuer or any of its Restricted Subsidiaries undertaken in
connection with cash management and related activities with respect to any Subsidiary or
joint venture in the ordinary course of business.



(c) For purposes of determining compliance with this Section 4.09:




(i) in the event that an item of Indebtedness, Disqualified Stock or Preferred Stock
(or any portion thereof) meets the criteria of more than one of the categories of Permitted
Indebtedness, Disqualified Stock or Preferred Stock described in clauses (i) through (xxiii)
of Section 4.09(b) hereof or is entitled to be incurred pursuant to Section 4.09(a) hereof,
the Issuer, in its sole discretion, may classify or reclassify such item of Indebtedness,
Disqualified Stock or Preferred Stock (or any portion thereof) and shall only be required to
include the amount and type of such Indebtedness, Disqualified Stock or Preferred Stock in
one of the above clauses or under Section 4.09(a) hereof; provided that all Indebtedness
outstanding under the ABL Facility on the Issue Date shall be treated as incurred on the
Issue Date under clause (i) of Section 4.09(b) hereof; and




(ii) at the time of incurrence, the Issuer shall be entitled to divide and classify an
item of Indebtedness in more than one of the types of Indebtedness described in Section
4.09(a) and Section 4.09(b) hereof.



Accrual of interest or dividends, the accretion of accreted value, the accretion or
amortization of original issue discount and the payment of interest or dividends in the form of
additional Indebtedness, Disqualified Stock or Preferred Stock, as the case may be, of the same
class shall not be deemed to be an incurrence or issuance of Indebtedness, Disqualified Stock or
Preferred Stock for purposes of this Section 4.09.



For purposes of determining compliance with any U.S. dollar-denominated restriction on the
incurrence of Indebtedness, the U.S. dollar-equivalent principal amount of Indebtedness denominated
in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on
the date such Indebtedness was incurred, in the case of term debt, or first committed, in the case
of revolving credit debt; provided that if such Indebtedness is incurred to refinance other
Indebtedness denominated in a foreign currency, and such refinancing would cause the applicable
U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange
rate in effect on the date of such refinancing, such U.S. dollar-denominated restriction shall be
deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness
does not exceed (A) the principal amount of such Indebtedness being refinanced plus (B) the
aggregate amount of fees, underwriting discounts, premiums and other costs and expenses incurred in
connection with such refinancing.



The principal amount of any Indebtedness incurred to refinance other Indebtedness, if incurred
in a different currency from the Indebtedness being refinanced, shall be calculated based on the
currency exchange rate applicable to the currencies in which such respective Indebtedness is
denominated that is in effect on the date of such refinancing.


 


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Notwithstanding anything to the contrary, the Issuer shall not, and shall not permit any
Guarantor to, directly or indirectly, incur any Indebtedness (including Acquired Indebtedness) that
is subordinated or junior in right of
payment to any Indebtedness of the Issuer or such Guarantor, as the case may be, unless such
Indebtedness is expressly subordinated in right of payment to the Notes or such Guarantor’s
Guarantee to the extent and in the same manner as such Indebtedness is subordinated to other
Indebtedness of the Issuer or such Guarantor, as the case may be.



This Indenture shall not treat (1) unsecured Indebtedness as subordinated or junior to Secured
Indebtedness merely because it is unsecured or (2) Indebtedness as subordinated or junior to any
other Indebtedness merely because it has a junior priority with respect to the same collateral.



Section 4.10 Asset Sales.



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




(i) the Issuer or such Restricted Subsidiary, as the case may be, receives
consideration at the time of such Asset Sale at least equal to the fair market value (such
fair market value to be determined by the Issuer at the time of contractually agreeing to
such Asset Sale) of the assets sold or otherwise disposed of;




(ii) except in the case of a Permitted Asset Swap, at least 75% of the consideration
therefor received by the Issuer or such Restricted Subsidiary, as the case may be, is in the
form of Cash Equivalents; provided that the following amounts shall be deemed to be Cash
Equivalents for the purposes of this provision:




(A) any liabilities (as shown on the Issuer’s or such Restricted Subsidiary’s
most recent balance sheet or in the footnotes thereto) of the Issuer or such
Restricted Subsidiary, other than liabilities that are by their terms subordinated
to the Notes, that are assumed by the transferee of any such assets and for which
the Issuer and all of its Restricted Subsidiaries have been validly released by all
applicable creditors in writing;




(B) any securities, notes or other obligations or assets received by the Issuer
or such Restricted Subsidiary from such transferee that are converted by the Issuer
or such Restricted Subsidiary into Cash Equivalents (to the extent of the Cash
Equivalents received) within 180 days following the closing of such Asset Sale; and




(C) the amount of any Designated Non-cash Consideration received by the Issuer
or any of its Restricted Subsidiaries in the Asset Sale; provided that the aggregate
of such Designated Non-cash Consideration received in connection with Asset Sales
(and still held) shall not exceed $5 million at any one time (with the fair market
value in each case being measured at the time received and without giving effect to
subsequent changes in value); and




(iii) if such Asset Sale involves the disposition of Collateral, the Issuer or such
Guarantor has complied with the provisions of this Indenture and the Collateral Documents.



(b) Within 365 days after the receipt of any Net Proceeds of any Asset Sale, the Issuer or
such Restricted Subsidiary, at its option, may apply the Net Proceeds from such Asset Sale,




(i) to reduce indebtedness as follows:




(A) if the assets subject to such Asset Sale constitute Notes Collateral, to
permanently reduce (or offer to reduce) Obligations under the Notes and any
Additional Parity Debt on a pro rata basis, provided that all reductions of or
offers to reduce Obligations under the Notes shall be made as provided under Section
3.07 hereof or by making an offer (in accordance with the procedures set forth in
Section 3.09 and Section 4.10(c) hereof) to all Holders to purchase their Notes at
100.0% of the principal amount thereof, plus the amount of accrued but unpaid
interest, if any, on the amount of Notes to be repurchased; or


 


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(B) if the assets subject to such Asset Sale constitutes ABL Collateral, to
repay any Indebtedness under the ABL Facility secured by such ABL Collateral as
required under the ABL Facility; or




(C) if the assets subject to such Asset Sale do not constitute Collateral to
permanently reduce (or offer to reduce) obligations under other Senior Indebtedness
(and to correspondingly reduce commitments with respect thereto), provided that the
Issuer shall equally and ratably reduce Obligations under the Notes and any
Additional Parity Debt on a pro rata basis, provided that all reductions of or
offers to reduce Obligations under the Notes shall be made as provided under Section
3.07 hereof or by making an offer (in accordance with the procedures set forth in
Section 3.09 and Section 4.10(c) hereof) to all Holders to purchase their Notes at
100.0% of the principal amount thereof, plus the amount of accrued but unpaid
interest, if any, on the amount of Notes to be repurchased; or




(D) if the assets subject to such Asset Sale are the property or assets of a
Restricted Subsidiary that is not a Guarantor, to permanently reduce Indebtedness of
such Restricted Subsidiary that is not a Guarantor, other than Indebtedness owed to
the Issuer or another Restricted Subsidiary; or




(ii) to make (A) an Investment in any one or more businesses, provided that such
Investment in any business is in the form of the acquisition of Capital Stock and results in
the Issuer or any of its Restricted Subsidiaries, as the case may be, owning an amount of
the Capital Stock of such business such that it constitutes a Restricted Subsidiary, (B)
capital expenditures or (C) acquisitions of other assets that are not classified as current
assets under GAAP and that are used or useful in a Similar Business; provided that the
assets (including Capital Stock) acquired with the Net Proceeds of a disposition of
Collateral are pledged as Collateral to the extent required under the Collateral Documents
(except to the extent the Lien thereon is released by the lenders under the ABL Facility);



provided that, in the case of clause (ii) above, a binding commitment entered into not later than
such 365th day shall extend the period for such Investment or other payment for an additional 180
days after the end of such 365-day period so long as the Issuer or such other Restricted Subsidiary
enters into such commitment with the good faith expectation that such Net Proceeds shall be applied
to satisfy such commitment within 180 days of such commitment (an “Acceptable Commitment”) and, in
the event any Acceptable Commitment is later cancelled or terminated for any reason before the Net
Proceeds are applied in connection therewith then such Net Proceeds shall constitute Excess
Proceeds on the date of such cancellation or termination, or such 180th day, as applicable.




(c) Any Net Proceeds from the Asset Sale that are not invested or applied as provided and
within the time period set forth in Section 4.10(b) hereof shall be deemed to constitute “Excess
Proceeds.” When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Issuer shall
make an offer to all Holders and, if required by the terms of any Indebtedness that is pari passu
with the Notes (“Pari Passu Indebtedness”), to the holders of such Pari Passu Indebtedness (an
“Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Notes and such Pari
Passu Indebtedness that is in an amount equal to at least $2,000, that may be purchased out of the
Excess Proceeds at an offer price in cash in an amount equal to 100.0% of the principal amount
thereof (or accreted value thereof, if less), plus accrued and unpaid interest, if any, to the date
fixed for the closing of such offer, in accordance with the procedures set forth in this Indenture.
The Issuer shall commence an Asset Sale Offer with respect to Excess Proceeds within ten Business
Days after the date that Excess Proceeds exceed $10.0 million by delivering the notice required
pursuant to the terms of this Indenture, with a copy to the Trustee. The Issuer may satisfy the
foregoing obligations with respect to any Net Proceeds from an Asset Sale by making an Asset Sale
Offer with respect to such Net Proceeds prior to the expiration of the relevant 365 days (or such
longer period provided above) or with respect to Excess Proceeds of $10.0 million or less.


 


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To the extent that the aggregate amount of Notes and such Pari Passu Indebtedness tendered
pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Issuer may use any remaining
Excess Proceeds for general
corporate purposes, subject to other covenants contained in this Indenture. If the aggregate
principal amount of Notes or the Pari Passu Indebtedness surrendered by such holders thereof
exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the Issuer shall
select such Pari Passu Indebtedness to be purchased on a pro rata basis (with adjustments as needed
for selection of authorized minimum denominations) based on the accreted value or principal amount
of the Notes or such Pari Passu Indebtedness tendered. Upon completion of any such Asset Sale
Offer, the amount of Excess Proceeds that resulted in the Asset Sale Offer shall be reset to zero.



(d) Pending the final application of any Net Proceeds pursuant to this Section 4.10, the
holder of such Net Proceeds may apply such Net Proceeds temporarily to reduce Indebtedness
outstanding under a revolving credit facility or otherwise invest such Net Proceeds in any manner
not prohibited by this Indenture.



(e) The Issuer shall comply with the requirements of Rule 14e-1 under the Exchange Act and any
other securities laws and regulations thereunder to the extent such laws or regulations are
applicable in connection with the repurchase of the Notes pursuant to an Asset Sale Offer. To the
extent that the provisions of any securities laws or regulations conflict with the provisions of
this Indenture, the Issuer shall comply with the applicable securities laws and regulations and
shall not be deemed to have breached its obligations described in this Indenture by virtue thereof.



The provisions of this Section 4.10 may be waived or modified with the written consent of the
Holders of a majority in principal amount of the Notes then outstanding.



Section 4.11 Transactions With Affiliates.



(a) The Issuer shall not, and shall 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 Issuer (each of the foregoing, an “Affiliate Transaction”) involving aggregate payments or
consideration in excess of $10.0 million, unless:




(i) such Affiliate Transaction is on terms that are not materially less favorable to
the Issuer or its relevant Restricted Subsidiary than those that would have been obtained in
a comparable transaction by the Issuer or such Restricted Subsidiary with an unrelated
Person on an arm’s-length basis; and




(ii) the Issuer delivers to the Trustee with respect to any Affiliate Transaction or
series of related Affiliate Transactions involving aggregate payments or consideration in
excess of $15.0 million, a resolution adopted by the majority of independent directors (as
determined pursuant to Section 5605(a)(2) of the NASDAQ Listing Rules) the board of
directors of the Issuer approving such Affiliate Transaction and set forth in an Officer’s
Certificate certifying that such Affiliate Transaction complies with clause (i) of this
Section 4.11(a).



(b) The provisions of Section 4.11(a) hereof shall not apply to the following:




(i) transactions between or among the Issuer or any of its Restricted Subsidiaries or
any entity that becomes a Restricted Subsidiary as a result of such transaction;




(ii) Restricted Payments permitted by Section 4.07 hereof and the definition of
“Permitted Investments”;




(iii) the payment of management, consulting, monitoring, advisory and other fees and
related expenses (including indemnification and other similar amounts) pursuant to the
Management Advisory Agreement (plus any unpaid management, consulting, monitoring, advisory
and other fees and related expenses (including indemnification and similar amounts) accrued
in any prior year) and the termination fees pursuant to the Management Advisory Agreement,
or, in each case, any amendment thereto so long as any such amendment is not materially
disadvantageous in the good faith judgment of the board of directors of
the Issuer to the Holders when taken as a whole, as compared to the Management Advisory
Agreement as in effect on the Issue Date;


 


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(iv) the payment of reasonable and customary fees and compensation paid to, and
indemnities and reimbursements and employment and severance arrangements provided on behalf
of or for the benefit of, current or former employees, directors, officers, managers,
distributors or consultants of the Issuer, any of its direct or indirect parent companies or
any of its Restricted Subsidiaries;




(v) transactions in which the Issuer or any of its Restricted Subsidiaries, as the case
may be, delivers to the Trustee a letter from an Independent Financial Advisor stating that
such transaction is fair to the Issuer or such Restricted Subsidiary from a financial point
of view or stating that the terms are not materially less favorable to the Issuer or its
relevant Restricted Subsidiary than those that would have been obtained in a comparable
transaction by the Issuer or such Restricted Subsidiary with an unrelated Person on an
arm’s-length basis;




(vi) any agreement as in effect as of the Issue Date, or any amendment thereto (so long
as any such amendment is not disadvantageous in any material respect in the good faith
judgment of the board of directors of the Issuer to the Holders when taken as a whole as
compared to the applicable agreement as in effect on the Issue Date);




(vii) the existence of, or the performance by the Issuer or any of its Restricted
Subsidiaries of its obligations under the terms of, any stockholders agreement (including
any registration rights agreement or purchase agreement related thereto) to which it is a
party as of the Issue Date and any similar agreements which it may enter into thereafter;
provided that the existence of, or the performance by the Issuer or any of its Restricted
Subsidiaries of obligations under any future amendment to any such existing agreement or
under any similar agreement entered into after the Issue Date shall only be permitted by
this clause (vii) to the extent that the terms of any such amendment or new agreement are
not otherwise disadvantageous in any material respect in the good faith judgment of the
board of directors of the Issuer to the Holders when taken as a whole;




(viii) transactions with customers, clients, suppliers, contractors, joint venture
partners or purchasers or sellers of goods or services that are Affiliates, in each case in
the ordinary course of business and otherwise in compliance with the terms of this Indenture
which are fair to the Issuer and its Restricted Subsidiaries, in the reasonable
determination of the board of directors of the Issuer or the senior management thereof, or
are on terms at least as favorable as might reasonably have been obtained at such time from
an unaffiliated party;




(ix) the issuance of Equity Interests (other than Disqualified Stock) of the Issuer to
any direct or indirect parent company of the Issuer or to any Permitted Holder or to any
employee, director, officer, manager, distributor or consultant of the Issuer, any of its
direct or indirect parent companies or any of its Restricted Subsidiaries;




(x) sales of accounts receivable, or participations therein, or Securitization Assets
or related assets in connection with or any Qualified Securitization Facility;




(xi) payments by the Issuer or any of its Restricted Subsidiaries to any of the
Investors made for any financial advisory, financing, underwriting or placement services or
in respect of other investment banking activities, including, without limitation, in
connection with acquisitions or divestitures which payments are either (a) approved by a
majority of the board of directors of the Issuer in good faith or (b) made pursuant to an
agreement existing as of the Issue Date;


 


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(xii) payments and Indebtedness and Disqualified Stock (and cancellation of any
thereof) of the Issuer and its Restricted Subsidiaries and Preferred Stock (and cancellation
of any thereof) of any Restricted Subsidiary to any future, current or former employee,
director, officer, manager or consultant (including trustees, administrators, executors,
powers of attorney, heirs, assignees, estates and beneficiaries of
any of the foregoing) of the Issuer, any of its Subsidiaries or any of its direct or
indirect parent companies pursuant to any management equity or other incentive plan or stock
option plan or any other management or employee benefit plan or agreement or any stock
subscription or shareholder agreement; and any employment agreements, severance agreements,
stock option plans and other compensatory arrangements (and any successor plans thereto) and
any supplemental executive retirement benefit plans or arrangements with any such employees,
directors, officers, managers or consultants that are, in each case, approved by the Issuer
in good faith;




(xiii) payments by the Issuer (and any direct or indirect parent company thereof) and
its Subsidiaries pursuant to tax sharing agreements among the Issuer (and any such parent
company) and its Subsidiaries; provided that in each case the amount of such payments in any
fiscal year does not exceed the amount that the Issuer, its Restricted Subsidiaries and its
Unrestricted Subsidiaries (to the extent of amount received from Unrestricted Subsidiaries)
would be required to pay in respect of foreign, federal, state and local taxes for such
fiscal year were the Issuer, its Restricted Subsidiaries and its Unrestricted Subsidiaries
(to the extent described above) to pay such taxes separately from any such parent entity;
and




(xiv) any transaction with a Person that is an Affiliate of the Issuer solely because
the Issuer directly or indirectly owns Equity Interests in or controls such Person entered
into in the ordinary course of business.



Section 4.12 Liens. The Issuer shall not, and shall not permit any Restricted Subsidiary to, directly or
indirectly, create, incur, assume or suffer to exist any Lien that secures Obligations under any
Indebtedness or any related Guarantee of Indebtedness, on any asset or property of the Issuer or
any Restricted Subsidiary, or any income or profits therefrom, or assign or convey any right to
receive income therefrom, except that the foregoing shall not apply to (A) Liens securing the Notes
and the related Guarantees (and the Exchange Notes and the related guarantees in respect thereof)
but, except as otherwise permitted hereunder, excluding Additional Notes and (B) (i) Permitted
Liens and (ii) Liens securing (x) Indebtedness and other Obligations permitted to be incurred
under Credit Facilities, including any letter of credit facility relating thereto, that was
incurred pursuant to clause (i) of Section 4.09(b) hereof and (y) obligations of the Issuer or any
Subsidiary in respect of any Bank Products or Hedging Obligations provided by any arranger, agent
or lender party to any Credit Facility or any Affiliate of such arranger, agent or lender (or any
Person that was an arranger, agent or lender or an Affiliate of an arranger, agent or lender at the
time the applicable agreements pursuant to which such Bank Products or Hedging Obligations are
provided or were entered into); provided, however, that this subclause (B)(ii) shall not permit
simultaneous first-priority Liens in respect of such Indebtedness on both the ABL Collateral and
the Notes Collateral.



Section 4.13 Company Existence. Subject to Article 5 hereof, the Issuer shall do or cause to be done all
things necessary to preserve and keep in full force and effect its company existence (for the
avoidance of doubt the Issuer may convert into a limited liability company; provided that there is
a corporate co-issuer entity), and the corporate, partnership, limited liability company 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); provided that the Issuer shall not be
required to preserve the corporate, partnership, limited liability company or other existence of
its Restricted Subsidiaries, if the Issuer in good faith shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Issuer and its Restricted
Subsidiaries, taken as a whole.



Section 4.14 Offer to Repurchase upon Change of Control. If a Change of Control occurs, unless the Issuer
has previously or concurrently sent a redemption notice with respect to all the outstanding Notes
as described under Section 3.07 hereof, the Issuer shall make an offer to purchase all of the Notes
pursuant to the offer described below (the “Change of Control Offer”) at a price in cash (the
“Change of Control Payment”) equal to 101.0% of the aggregate principal amount thereof plus accrued
and unpaid interest, if any, to the date of purchase, subject to the right of Holders of record on
the relevant Record Date to receive interest due on the relevant Interest Payment Date. Within 30
days following any Change of Control, the Issuer shall send notice of such Change of Control Offer
electronically or by first-class mail, with a copy to the Trustee, to each Holder to the address of
such Holder appearing in the Security Register or otherwise in accordance with the Applicable
Procedures with the following information:


 


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(a) that a Change of Control Offer is being made pursuant to this Section 4.14 and that
all Notes properly tendered pursuant to such Change of Control Offer shall be accepted for
payment by the Issuer;




(b) the purchase price and the purchase date, which shall be no earlier than 30 days
nor later than 60 days from the date such notice is mailed (the “Change of Control Payment
Date”);




(c) that any Note not properly tendered shall remain outstanding and continue to accrue
interest;




(d) that unless the Issuer defaults in the payment of the Change of Control Payment,
all Notes accepted for payment pursuant to the Change of Control Offer shall cease to accrue
interest on the Change of Control Payment Date;




(e) that Holders electing to have any Notes purchased pursuant to a Change of Control
Offer shall be required to surrender such Notes, with the form entitled “Option of Holder to
Elect Purchase” on the reverse of such Notes completed, to the paying agent specified in the
notice 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;




(f) that Holders shall be entitled to withdraw their tendered Notes and their election
to require the Issuer to purchase such Notes, provided that the Paying Agent receives, not
later than the close of business on the expiration date of the Change of Control Offer, a
facsimile transmission, electronic transmission or letter setting forth the name of the
Holder, the principal amount of Notes tendered for purchase, and a statement that such
Holder is withdrawing its tendered Notes and its election to have such Notes purchased;




(g) that Holders whose Notes are being purchased only in part shall be issued new Notes
and such new Notes shall be equal in principal amount to the unpurchased portion of the
Notes surrendered. The unpurchased portion of the Notes must be equal to at least $2,000 or
any integral multiple of $1,000 in excess of $2,000;




(h) if such notice is delivered prior to the occurrence of a Change of Control, stating
that the Change of Control Offer is conditional on the occurrence of such Change of Control;
and




(i) the other instructions, as determined by the Issuer, consistent with this Section
4.14 that a Holder must follow.



The notice, if sent in a manner herein provided, shall be conclusively presumed to have been
given, whether or not the Holder receives such notice. If (a) the notice is mailed in a manner
herein provided and (b) any Holder fails to receive such notice or a Holder receives such notice
but it is defective, such Holder’s failure to receive such notice or such defect shall not affect
the validity of the proceedings for the purchase of the Notes as to all other Holders that properly
received such notice without defect. The Issuer shall comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations thereunder to the extent such
laws or regulations are applicable in connection with the repurchase of Notes pursuant to a Change
of Control Offer. To the extent that the provisions of any securities laws or regulations conflict
with the provisions of this Section 4.14, the Issuer shall comply with the applicable securities
laws and regulations and shall not be deemed to have breached its obligations described in this
Indenture by virtue thereof.



On the Change of Control Payment Date, the Issuer shall, to the extent permitted by law:




(i) accept for payment all Notes issued by it or portions thereof properly tendered
pursuant to the Change of Control Offer;


 


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




(iii) deliver, or cause to be delivered, to the Trustee for cancellation the Notes so
accepted together with an Officer’s Certificate to the Trustee stating that such Notes or
portions thereof have been tendered to and purchased by the Issuer.



The Issuer shall not be required to make a Change of Control Offer following a Change of
Control if 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 Issuer and purchases all Notes validly tendered and not withdrawn under
such Change of Control Offer.



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.



Other than as specifically provided in this Section 4.14, any purchase pursuant to this
Section 4.14 shall be made pursuant to the provisions of Sections 3.02, 3.05 and 3.06, hereof, and
references therein to “redeem,” “redemption” and similar words shall be deemed to refer to
“purchase,” “repurchase” and similar words, as applicable.



The provisions of this Section 4.14, and the definition of “Change of Control,” may be waived
or modified with the written consent of the Holders of a majority in principal amount of the Notes
then outstanding.



Section 4.15 Limitation on Guarantees of Indebtedness by Restricted Subsidiaries. The Issuer shall not
permit any of its Wholly-Owned Subsidiaries that are Restricted Subsidiaries (and non-Wholly-Owned
Subsidiaries if such non-Wholly-Owned Subsidiaries guarantee other capital markets debt securities
of the Issuer or any Guarantor), other than a Guarantor or a Securitization Subsidiary, to
guarantee the payment of any Indebtedness of the Issuer or any other Guarantor unless:




(a) such Restricted Subsidiary within 30 days executes and delivers (x) a supplemental
indenture to this Indenture, the form of which is attached as Exhibit D hereto, providing
for a Guarantee by such Restricted Subsidiary, except that with respect to a guarantee of
Indebtedness of the Issuer or any Guarantor, if such Indebtedness is by its express terms
subordinated in right of payment to the Notes or such Guarantor’s Guarantee, any such
guarantee by such Restricted Subsidiary with respect to such Indebtedness shall be
subordinated in right of payment to such Guarantee substantially to the same extent as such
Indebtedness is subordinated to the Notes and (y) supplements to the applicable Collateral
Documents in order to grant a Lien in the Collateral owned by such Restricted Subsidiary and
takes all actions required by such Collateral Documents to perfect the Liens created
thereunder; and




(b) such Restricted Subsidiary waives and shall not in any manner whatsoever claim or
take the benefit or advantage of, any rights of reimbursement, indemnity or subrogation or
any other rights against the Issuer or any other Restricted Subsidiary as a result of any
payment by such Restricted Subsidiary under its Guarantee;



The Issuer may elect, in its sole discretion, to cause any Subsidiary that is not otherwise
required to be a Guarantor to become a Guarantor, in which case such Subsidiary shall not be
required to comply with the 30 day period described in clause (1) above.




Section 4.16 Impairment of Security Interests; Further Assurances.



(a) Subject to the rights of the holders of Permitted Liens and the limitations set forth in
this Indenture and the Collateral Documents, neither the Issuer nor any of the Guarantors shall
take any action, or knowingly or negligently omit to take any action, which action or omission
might or would or could be reasonably expected to have the result of materially impairing the
security interest with respect to the Collateral for the benefit of the Trustee and the Holders in
contravention of the provisions of this Indenture. Notwithstanding the foregoing, the Trustee
and the Holders acknowledge and agree that any release of the Liens pursuant to this Indenture
and the Collateral Documents shall not be deemed to impair the security under this Indenture and
that any Person may rely on such provision in delivering a certificate requesting release so long
as all other provisions of this Indenture with respect to such release have been complied with.


 


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(b) Subject to the limitations set forth in this Indenture and the Collateral Documents, the
Issuer and each of the Guarantors shall execute any and all further documents, financing statements
(including amendments thereto and continuations thereof), agreements and instruments, and take all
further action that may be reasonably required under applicable law, or that the Notes Collateral
Agent may reasonably request, in order to grant, preserve, protect and perfect the validity and
priority of the security interests and Liens created or intended to be created by the Collateral
Documents in the Collateral.



Section 4.17 After-Acquired Property. Promptly following the acquisition by the Issuer or any Guarantor of
any After-Acquired Property (but subject to the limitations, if applicable, described in Article 13
and the Collateral Documents), the Issuer or such Guarantor shall execute and deliver such
mortgages, deeds of trust, security instruments, financing statements and, in the case of interests
in real property, certificates and opinions of counsel, as shall be reasonably necessary to vest in
the Notes Collateral Agent a perfected security interest in such After-Acquired Property and to
have such After-Acquired Property added to the Notes Collateral or the ABL Collateral, as
applicable, and thereupon all provisions of this Indenture and Collateral Documents relating to the
Notes Collateral or the ABL Collateral, as applicable, shall be deemed to relate to such
After-Acquired Property to the same extent and with the same force and effect.



Section 4.18 Insurance. The Issuer and the Guarantors shall, and shall cause each Restricted Subsidiary
to, maintain, with financially sound and reputable insurance companies (a) insurance in such
amounts and against such risks, as are customarily maintained by similarly situated companies
engaged in the same or similar businesses operating in the same or similar locations (after giving
effect to any self-insurance reasonable and customary for similarly situated companies) and (b) all
insurance required pursuant to the Collateral Documents (and shall cause the Notes Collateral Agent
to be listed as a lenders’ loss payee (together with any other lenders’ loss payee in accordance
with the Intercreditor Agreement) on property and casualty policies covering loss or damage to
Collateral and as an additional insured on liability policies). The Issuer shall furnish to the
Notes Collateral Agent, upon request, information in reasonable detail as to the insurance so
maintained. The Issuer and each Guarantor shall name the Trustee and the Notes Collateral Agent as
a co-loss payee on property and casualty policies and as an additional insured as its interests may
appear on the liability policies listed in this Section 4.18. The Issuer shall provide evidence of
such fact to the Trustee.



Section 4.19 Payment for Consent. The Issuer shall not, and shall 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 4.20 Post-Closing Actions. Subject to the limitations set forth in this Indenture or the
Collateral Documents, the parties hereto acknowledge and agree that within ninety (90) days after
the Issue Date, provided, that such efforts may take longer than ninety (90) days, the Issuer shall
use commercially reasonable efforts to cause the Notes Collateral Agent to have received evidence
that documents duly executed by the Issuer or applicable Guarantor and the Notes Collateral Agent
have been filed with the United States Patent and Trademark Office or the United States Copyright
Office, as applicable, as may be necessary or advisable for the purpose of perfecting, confirming,
enforcing or protecting the Notes Collateral Agent’s security interest over the Issuer’s and each
Guarantor’s patents, trademarks and copyrights registered in the United States.



ARTICLE 5




SUCCESSORS



Section 5.01 Merger, Consolidation or Sale of All or Substantially All Assets.


 


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(a) The Issuer may not consolidate or merge with or into or wind up into (whether or not the
Issuer is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of
all or substantially all of its properties or assets, in one or more related transactions, to any
Person unless:




(i) the Issuer is the surviving Person or the Person formed by or surviving any such
consolidation, amalgamation or merger (if other than the Issuer) or to which such sale,
assignment, transfer, lease, conveyance or other disposition shall have been made, is a
Person organized or existing under the laws of the United States, any state thereof, the
District of Columbia, or any territory thereof (such Person, as the case may be, being
herein called the “Successor Company”); provided that in the case where the surviving Person
is not a corporation, a co-obligor of the Notes is a corporation;




(ii) the Successor Company, if other than the Issuer, expressly assumes all the
obligations of the Issuer under this Indenture, the Notes and the Collateral Documents
pursuant to supplemental indenture or other documents or instruments;




(iii) immediately after such transaction, no Default exists;




(iv) immediately after giving pro forma effect to such transaction and any related
financing transactions, as if such transactions had occurred at the beginning of the
applicable four-quarter period,




(A) the Successor Company or the Issuer would be permitted to incur at least
$1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Test hereof,
or




(B) the Fixed Charge Coverage Ratio immediately after giving pro forma effect
to such transaction is greater than the Fixed Charge Coverage Ratio immediately
prior to giving pro forma effect to such transaction;




(v) each Guarantor, unless it is a Guarantor that is the other party to the
transactions described above, in which case Section 5.01(c)(i)(B) shall apply, shall have by
supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations
under this Indenture, the Notes, the Collateral Documents and the Registration Rights
Agreement; and




(vi) the Issuer shall have delivered to the Trustee an Officer’s Certificate and
Opinion of Counsel stating that such consolidation, merger, amalgamation or transfer and
such supplemental indenture, if any, comply with this Indenture.



(b) The Successor Company shall succeed to, and be substituted for the Issuer under this
Indenture, the Security Documents, the Guarantees and the Notes, as applicable. Notwithstanding
clauses (iii) and (iv) of Section 5.01(a) hereof,




(i) any Restricted Subsidiary that is not a Guarantor may consolidate or amalgamate
with or merge into or transfer all or part of its properties and assets to the Issuer or any
Restricted Subsidiary;




(ii) any Guarantor may consolidate or amalgamate with or merge into or transfer all or
part of its properties and assets to the Issuer or a Guarantor (or to a Restricted
Subsidiary if that Restricted Subsidiary becomes a Guarantor); and




(iii) the Issuer may merge with an Affiliate of the Issuer solely for the purpose of
reincorporating the Issuer in the United States, the District of Columbia or any territory
thereof so long as the amount of Indebtedness of the Issuer and its Restricted Subsidiaries
is not increased thereby.



(c) Subject to Section 10.06 hereof, no Guarantor shall, and the Issuer shall not permit any
Guarantor to, consolidate, amalgamate or merge with or into or wind up into (whether or not such
Guarantor is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose
of all or substantially all of its properties or assets, in one or more related transactions, to
any Person unless:


 


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(i) (A) such Guarantor is the surviving Person or the Person formed by or surviving any
such consolidation, amalgamation or merger (if other than such Guarantor) or to which such
sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a
Person organized or existing under the laws of the jurisdiction of organization of such
Guarantor, as applicable, or the laws of the United States, any state thereof, the District
of Columbia, or any territory thereof (such surviving Guarantor or such Person, as the case
may be, being herein called the “Successor Person”);




(B) the Successor Person, if other than such Guarantor, expressly assumes all the
obligations of such Guarantor under this Indenture, the Collateral Documents and such
Guarantor’s related Guarantee pursuant to supplemental indenture or other documents or
instruments;




(C) immediately after such transaction, no Default exists; and




(D) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an
Opinion of Counsel, each stating that such consolidation, merger, amalgamation or transfer
and such supplemental indenture, if any, comply with this Indenture; or




(ii) with respect to the Guarantors, the transaction is made in compliance with Section
4.10 hereof.



(d) Subject to Section 10.06 hereof, the Successor Person shall succeed to, and be substituted
for, such Guarantor under this Indenture, the Collateral Documents and such Guarantor’s Guarantee.
Notwithstanding the foregoing, any Guarantor may (1) merge or consolidate with or into, wind up
into or transfer all or part of its properties and assets to another Guarantor or the Issuer, (2)
merge with an Affiliate of the Issuer solely for the purpose of reincorporating the Guarantor in
the United States, any state thereof, the District of Columbia or any territory thereof or (3)
convert into a corporation, partnership, limited partnership, limited liability corporation or
trust organized or existing under the laws of the jurisdiction of organization of such Guarantor.



Section 5.02 Successor Person Substituted. Upon any consolidation, amalgamation or merger, or any sale,
assignment, transfer, lease, conveyance or other disposition of all or substantially all of the
assets of the Issuer or a Guarantor in accordance with Section 5.01 hereof, the successor Person
formed by such consolidation or into or with which the Issuer or such Guarantor, as applicable, is
merged or to which such sale, assignment, transfer, lease, conveyance or other disposition is made
shall succeed to, and be substituted for (so that from and after the date of such consolidation,
merger, sale, lease, conveyance or other disposition, the provisions of this Indenture referring to
the Issuer or such Guarantor, as applicable, shall refer instead to the Successor Person and not to
the Issuer or such Guarantor, as applicable), and may exercise every right and power of the Issuer
or such Guarantor, as applicable, under this Indenture with the same effect as if such successor
Person had been named as the Issuer or a Guarantor, as applicable, herein; provided that the
predecessor Issuer shall not be relieved from the obligation to pay the principal of and interest
on the Notes except in the case of a sale, assignment, transfer, conveyance or other disposition of
all of the Issuer’s assets that meets the requirements of Section 5.01 hereof.



ARTICLE 6




DEFAULTS AND REMEDIES



Section 6.01 Events of Default.



An “Event of Default,” wherever used herein, means any one of the following events (whatever
the reason for such Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of any court or any
order, rule or regulation of any administrative or governmental body):




(a) default in payment when due and payable, upon redemption, acceleration or
otherwise, of principal of, or premium, if any, on the Notes;


 


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(b) default for 30 days or more in the payment when due of interest or Additional
Interest on or with respect to the Notes;




(c) failure by the Issuer or any Guarantor for 60 days after receipt of written notice
given by the Trustee or the Holders of not less than 25.0% in principal amount of the then
outstanding Notes to comply with any of its obligations, covenants or agreements (other than
a default referred to in clause (i) or (ii) above) contained in this Indenture, the Notes or
the Collateral Documents;




(d) default under any mortgage, indenture or instrument under which there is issued or
by which there is secured or evidenced any Indebtedness for money borrowed by the Issuer or
any of its Restricted Subsidiaries or the payment of which is guaranteed by the Issuer or
any of its Restricted Subsidiaries, other than Indebtedness owed to the Issuer or a
Restricted Subsidiary, whether such Indebtedness or guarantee now exists or is created after
the issuance of the Notes, if both:




(i) such default either results from the failure to pay any principal of such
Indebtedness at its stated final maturity (after giving effect to any applicable
grace periods) or relates to an obligation other than the obligation to pay
principal of any such Indebtedness at its stated final maturity and results in the
holder or holders of such Indebtedness causing such Indebtedness to become due prior
to its stated maturity; and




(ii) the principal amount of such Indebtedness, together with the principal
amount of any other such Indebtedness in default for failure to pay principal at
stated final maturity (after giving effect to any applicable grace periods), or the
maturity of which has been so accelerated, aggregate $15.0 million or more at any
one time outstanding;




(e) failure by the Issuer or any Significant Subsidiary (or any group of Restricted
Subsidiaries that together would constitute a Significant Subsidiary) (in each case
determined as of the most recent consolidated financial statements of the Issuer for a
fiscal quarter end provided as required under Section 4.03) to pay final judgments
aggregating in excess of $15.0 million (net of amounts covered by insurance policies issued
by reputable insurance companies), which final judgments remain unpaid, undischarged and
unstayed for a period of more than 60 days after such judgment becomes final, and in the
event such judgment is covered by insurance, an enforcement proceeding has been commenced by
any creditor upon such judgment or decree which is not promptly stayed;




(f) the Issuer or any of its Subsidiaries that is a Significant Subsidiary (or any
group of Restricted Subsidiaries that, taken together, would constitute a Significant
Subsidiary) (in each case determined as of the most recent consolidated financial statements
of the Issuer for a fiscal quarter end provided as required under Section 4.03), pursuant to
or within the meaning of any Bankruptcy Law:




(i) commences proceedings to be adjudicated bankrupt or insolvent;




(ii) consents to the institution of bankruptcy or insolvency proceedings
against it, or the filing by it of a petition or answer or consent seeking
reorganization or relief under applicable Bankruptcy Law;




(iii) consents to the appointment of a receiver, liquidator, assignee, trustee,
sequestrator or other similar official of it or for all or substantially all of its
property;




(iv) makes a general assignment for the benefit of its creditors; or




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




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


 


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(i) is for relief against the Issuer or any of its Subsidiaries that is a
Significant Subsidiary (or any group of Restricted Subsidiaries that, taken
together, would constitute a Significant Subsidiary) (in each case determined as of
the most recent consolidated financial statements of the Issuer for a fiscal quarter
end provided as required under Section 4.03), in a proceeding in which the Issuer or
any such Subsidiary or such group of Restricted Subsidiaries is to be adjudicated
bankrupt or insolvent;




(ii) appoints a receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Issuer or any of its Subsidiaries that is a Significant
Subsidiary (or any group of Restricted Subsidiaries that, taken together, would
constitute a Significant Subsidiary) (in each case determined as of the most recent
consolidated financial statements of the Issuer for a fiscal quarter end provided as
required under Section 4.03), or for all or substantially all of the property of the
Issuer or any such Subsidiary or such group of Restricted Subsidiaries; or




(iii) orders the liquidation of the Issuer or any of its Subsidiaries that is a
Significant Subsidiary (or any group of Restricted Subsidiaries that, taken
together, would constitute a Significant Subsidiary) (in each case determined as of
the most recent consolidated financial statements of the Issuer for a fiscal quarter
end provided as required under Section 4.03);




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




(h) the Guarantee of any Significant Subsidiary (or any group of Restricted
Subsidiaries that together would constitute a Significant Subsidiary) (in each case
determined as of the most recent consolidated financial statements of the Issuer for a
fiscal quarter end provided as required under Section 4.03) shall for any reason cease to be
in full force and effect or be declared null and void or any responsible officer of any
Guarantor that is a Significant Subsidiary) (or the responsible officers of any group of
Restricted Subsidiaries that together would constitute a Significant Subsidiary) (in each
case determined as of the most recent consolidated financial statement of the Issuer for a
fiscal quarter end), as the case may be, denies in writing that it has any further liability
under its Guarantee or gives written notice to such effect, other than by reason of the
termination of this Indenture or the release of any such Guarantee in accordance with this
Indenture; or




(i) with respect to any Collateral, individually or in the aggregate, having a fair
market value in excess of $15.0 million, any of the Collateral Documents ceases to be in
full force and effect, or any of the Collateral Documents ceases to give the Holders the
Liens in such Collateral purported to be created thereby, or any of the Collateral Documents
is declared null and void or the Issuer or any Restricted Subsidiary denies in writing that
it has any further liability under any Collateral Document or gives written notice to such
effect (in each case (i) other than in accordance with the terms of this Indenture or the
terms of the ABL Facility or the Collateral Documents or (ii) unless waived by the requisite
lenders under the ABL Facility), except to the extent that any such loss of perfection or
priority results from the failure of the Trustee to maintain possession of certificates
actually delivered to it representing securities pledged under the Collateral Documents;
provided that if a failure of the sort described in this clause (i) is susceptible of cure,
no Event of Default shall arise under this clause (i) with respect thereto until 30 days
after notice of such failure shall have been given to the Issuer by the Trustee or the
Holders of at least 25% in principal amount of the then outstanding Notes issued under this
Indenture.



Section 6.02 Acceleration. If any Event of Default (other than a type specified in clause (f) or (g) of
Section 6.01 hereof) occurs and is continuing under this Indenture, the Trustee or the Holders of
at least 25.0% in principal amount of the then total outstanding Notes may declare the principal,
premium, if any, interest and any other monetary obligations on all the then outstanding Notes to
be due and payable immediately.



Upon the effectiveness of such declaration, such principal of and premium, if any, and
interest shall be due and payable immediately.



Notwithstanding the foregoing, in the case of an Event of Default arising under clause (f) or
(g) of Section 6.01 hereof, all outstanding Notes shall become due and payable immediately without
further action or notice. Trustee may
withhold from the Holders notice of any continuing Default, except a Default relating
to the payment of principal, premium, if any, or interest, if it determines that withholding notice
is in their interest.


 


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The Holders of a majority in aggregate principal amount of the then outstanding Notes by
notice to the Trustee may on behalf of all the Holders rescind any acceleration with respect to the
Notes and its consequences under this Indenture (except if such rescission would conflict with any
judgment of a court of competent jurisdiction) provided all existing Events of Default (except
nonpayment of interest on, premium, if any, or the principal of any Note held by a non-consenting
Holder that has become due solely because of the acceleration) have been cured or waived.



In the event of any Event of Default specified in clause (d) of Section 6.01 hereof, such
Event of Default and all consequences thereof (excluding any resulting payment default, other than
as a result of acceleration of the Notes) shall be annulled, waived and rescinded, automatically
and without any action by the Trustee or the Holders, if within 20 days after such Event of Default
arose:




(a) the Indebtedness or guarantee that is the basis for such Event of Default has been
discharged; or




(b) holders thereof have rescinded or waived the acceleration, notice or action (as the
case may be) giving rise to such Event of Default; or




(c) the default that is the basis for such Event of Default has been cured.



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, 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 all the Holders waive any
existing Default and its consequences hereunder (except a continuing Default in the payment of the
principal of, premium, if any, or interest on, any Note held by a non-consenting Holder) (including
in connection with an Asset Sale Offer or a Change of Control Offer). 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 principal amount of the then total outstanding
Notes (excluding any Notes directly or indirectly held by the Issuer or its Affiliates) may direct
the time, method and place of conducting any proceeding for any remedy available to the Trustee or
of exercising any trust or power conferred on the Trustee. The Trustee, however, may refuse to
follow any direction that conflicts with law or this Indenture or that the Trustee determines is
unduly prejudicial to the rights of any other Holder of a Note or that would involve the Trustee in
personal liability.



Section 6.06 Limitation on Suits. Subject to Section 6.07 hereof, no Holder of a Note may pursue any
remedy with respect to this Indenture or the Notes unless:




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




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


 


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




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




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



Section 6.07 Rights of Holders to Receive Payment. Notwithstanding any other provision of this Indenture,
the right of any Holder of a Note to receive payment of principal of, premium, if any, and interest
on the Note, on or after the respective due dates expressed in the Note (including in connection
with an Asset Sale Offer or a Change of Control Offer), or to bring suit for the enforcement of any
such payment on or after such respective dates, shall not be impaired or affected without the
consent of such Holder.



Section 6.08 Collection Suit by Trustee. If an Event of Default specified in Section 6.01(a) or (b) hereof
occurs and is continuing, the Trustee is authorized to recover judgment in its own name and as
trustee of an express trust against the Issuer for the whole amount of principal of, premium, if
any, and interest remaining unpaid on the Notes and interest on overdue principal and, to the
extent lawful, interest and such further amount as shall be sufficient to cover the costs and
expenses of collection, including the compensation, reasonable expenses, disbursements and advances
of the Trustee, its agents and counsel.



Section 6.09 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 such case, subject to any determination in such proceedings, the
Issuer, the Trustee and the Holders shall be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall
continue as though no such proceeding has been instituted.



Section 6.10 Rights and Remedies Cumulative. Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Notes in Section 2.07 hereof, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of
any other right or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.



Section 6.11 Delay or Omission Not Waiver. No delay or omission of the Trustee or of any Holder of any
Note to exercise any right or remedy accruing upon any Event of Default shall impair any such right
or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every
right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised
from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as
the case may be.



Section 6.12 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 compensation, reasonable expenses, disbursements and advances
of the Trustee, its agents and counsel) and the Holders allowed in any judicial proceedings
relative to the Issuer (or any other obligor upon the Notes including the Guarantors), its
creditors or its property and shall be entitled and empowered to participate as a member in any
official committee of creditors appointed in such matter and 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 compensation, reasonable expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07 hereof. To the extent that the payment of any such compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 7.07 hereof out of the estate in any such proceeding, shall be denied for any
reason, payment of the


 


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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 6.13 Priorities. If the Trustee or any Agent collects any money or property pursuant to this
Article 6 or receives any money from the Notes Collateral Agent as the distribution of proceeds
received upon realization of any Collateral, it shall pay out the money or property in the
following order:




(a) to the Trustee, such Agent, their agents and attorneys for amounts due under
Section 7.07 hereof, including payment of all compensation, expenses and liabilities
incurred, and all advances made, by the Trustee or such Agent and the costs and expenses of
collection;




(b) to Holders for amounts due and unpaid on the Notes for principal, premium, 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, if any, and interest, respectively; and




(c) to the Issuer or to such party as a court of competent jurisdiction shall direct
including a Guarantor, if applicable.



The Trustee may fix a record date and payment date for any payment to Holders pursuant to this
Section 6.13.



Section 6.14 Undertaking for Costs. In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by it as a Trustee, a
court in its discretion may require the filing by any party litigant in the suit of an undertaking
to pay the costs of the suit, and the court in its discretion may assess reasonable costs,
including reasonable attorneys’ fees and expenses, against any party litigant in the suit, having
due regard to the merits and good faith of the claims or defenses made by the party litigant. This
Section 6.14 does not apply to a suit by the Trustee, a suit by a Holder of a Note pursuant to
Section 6.07 hereof, or a suit by Holders of more than 10.0% in principal amount of the then
outstanding Notes.



ARTICLE 7




TRUSTEE



Section 7.01 Duties of Trustee.



(a) If an Event of Default has occurred and is continuing, the Trustee shall 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:




(i) the duties of the Trustee shall be determined solely by the express provisions of
this Indenture and the Trustee need perform only those duties that are specifically set
forth in this Indenture and no others, and no implied covenants or obligations shall be read
into this Indenture against the Trustee; and




(ii) 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 shall examine
the certificates and opinions to determine whether or not they conform
to the form requirements of this Indenture (but need not investigate or confirm the
accuracy of mathematical calculations or other facts stated therein).


 


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(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:




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




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




(iii) the Trustee shall not be liable with respect to any action it takes or omits to
take in good faith in accordance with a direction received by it pursuant to Section 6.02,
6.04 or 6.05 hereof.



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



(e) The Trustee shall be under no obligation to exercise any of its rights or powers under
this Indenture at the request or direction of any of the Holders unless the Holders have offered to
the Trustee indemnity or security satisfactory to it against any loss, liability or expense.



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



Section 7.02 Rights of Trustee.



(a) The Trustee may conclusively rely upon any document believed by it to be genuine and to
have been signed or presented by the proper Person. The Trustee need not investigate any fact or
matter stated in the document, but the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the books, records and
premises of the Issuer and its Restricted Subsidiaries, personally or by agent or attorney at the
sole cost of the Issuer and shall incur no liability or additional liability of any kind by reason
of such inquiry or investigation.



(b) Before the Trustee acts or refrains from acting, it may require an Officer’s Certificate
or an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits
to take in good faith in reliance on such Officer’s Certificate or Opinion of Counsel. The Trustee
may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel
shall 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 shall not be responsible for the
misconduct or negligence of any agent or attorney appointed with due care.



(d) The Trustee shall 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 Issuer shall be sufficient if signed by an Officer of the Issuer.



(f) None of the provisions of this Indenture shall require the Trustee to expend or risk its
own funds or otherwise to incur any liability, financial or otherwise, 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 indemnity satisfactory to it against such
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(g) The Trustee shall not be deemed to have notice of any Default or Event of Default unless a
Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any
event which is in fact such a Default is received by the Trustee at the Corporate Trust Office, and
such notice references the Notes and this Indenture.



(h) In no event shall the Trustee be responsible or liable for special, indirect, or
consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit)
irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and
regardless of the form of action.



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



(j) In the event the Issuer is required to pay Additional Interest, the Issuer shall provide
written notice to the Trustee of the Issuer’s obligation to pay Additional Interest no later than
15 days prior to the next Interest Payment Date, which notice shall set forth the amount of the
Additional Interest to be paid by the Issuer. The Trustee shall not at any time be under any duty
or responsibility to any Holders to determine whether the Additional Interest is payable and the
amount thereof.



(k) Delivery of reports, information and documents (including without limitation reports
contemplated under Section 4.03 hereof) to the Trustee is for informational purposes only and the
Trustee’s receipt of such shall not constitute constructive notice of any information contained
therein or determinable from information contained therein, including the Issuer’s compliance with
any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on
Officer’s Certificates).



(l) The permissive rights of the Trustee to take certain actions under this Indenture shall
not be construed as a duty unless so specified herein.



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 Issuer or any of its Affiliates with
the same rights it would have if it were not Trustee. However, in the event that the Trustee
acquires any conflicting interest it must eliminate such conflict within 90 days or apply to the
SEC for permission to continue or resign. Any Agent may do the same with like rights and duties.
The Trustee is also subject to Sections 7.10 and 7.11 hereof.



Section 7.04 Trustee’s Disclaimer. The Trustee shall 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
Issuer’s use of the proceeds from the Notes or any money paid to the Issuer or upon the Issuer’s
direction under any provision of this Indenture, it shall not be responsible for the use or
application of any money received by any Paying Agent other than the Trustee, and it shall not be
responsible for any statement or recital herein or any statement in the Notes or any other document
in connection with the sale of the Notes or pursuant to this Indenture other than its certificate
of authentication.



Section 7.05 Notice of Defaults. If a Default occurs and is continuing and if it is known to the Trustee,
the Trustee shall deliver to Holders a notice of the Default within 90 days after it occurs.
Except in the case of a Default relating to the payment of principal, premium, if any, or interest
on any Note, the Trustee may withhold from the Holders notice of any continuing Default if and so
long as a committee of its Responsible Officers in good faith determines that withholding the
notice is in the interests of the Holders.



Section 7.06 Reports by Trustee to Holders. Within 60 days after each May 15th, beginning with the May
15th following the date of this Indenture, and for so long as Notes remain outstanding, the Trustee
shall mail to the Holders a brief report dated as of such reporting date that complies with Trust
Indenture Act Section 313(a) (but if no event described in Trust Indenture Act Section 313(a) has
occurred within the twelve months preceding the reporting date, no report need be transmitted).
The Trustee also shall comply with Trust Indenture Act Section 313(b). The Trustee shall also
transmit by mail all reports as required by Trust Indenture Act Section 313(c).


 


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A copy of each report at the time of its mailing to the Holders shall be mailed to the Issuer
and filed with the SEC and each stock exchange on which the Notes are listed (known to the Trustee)
in accordance with Trust Indenture Act Section 313(d). The Issuer shall promptly notify the
Trustee in writing when the Notes are listed on any stock exchange or delisted therefrom.



Section 7.07 Compensation and Indemnity. The Issuer shall pay to the Trustee from time to time such
compensation for its acceptance of this Indenture and services hereunder as the parties shall agree
in writing from time to time. The Trustee’s compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Issuer shall reimburse the Trustee promptly
upon request for all reasonable out-of-pocket disbursements, advances and expenses incurred or made
by it in addition to the compensation for its services. Such expenses shall include the reasonable
compensation, disbursements and expenses of the Trustee’s agents and counsel.



The Issuer and the Guarantors, jointly and severally, shall indemnify the Trustee and its
officers, directors, employees, agents and any predecessor trustee and its officers, directors,
employees and agents for, and hold the Trustee harmless against, any and all loss, damage, claims,
liability or expense (including reasonable attorneys’ fees) incurred by it in connection with the
acceptance or administration of this trust and the performance of its duties hereunder (including
the costs and expenses of enforcing this Indenture against the Issuer or any of the Guarantors
(including this Section 7.07) or defending itself against any claim whether asserted by any Holder,
the Issuer or any Guarantor, or liability in connection with the acceptance, exercise or
performance of any of its powers or duties hereunder). The Trustee shall notify the Issuer
promptly of any claim of which a Responsible Officer has received written notice for which it may
seek indemnity. Failure by the Trustee to so notify the Issuer shall not relieve the Issuer of its
obligations hereunder. The Issuer shall defend the claim and the Trustee may have separate counsel
and the Issuer shall pay the reasonable fees and expenses of such counsel. The Issuer need not
reimburse any expense or indemnify against any loss, liability or expense incurred by the Trustee
through the Trustee’s own willful misconduct or negligence.



The obligations of the Issuer under this Section 7.07 shall survive the satisfaction and
discharge of this Indenture or the earlier resignation or removal of the Trustee.



To secure the payment obligations of the Issuer and the Guarantors in this Section 7.07, the
Trustee shall 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
shall survive the satisfaction and discharge of this Indenture.



When the Trustee incurs expenses or renders services after an Event of Default specified in
Section 6.01(f) or Section 6.01(g) 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.



The Trustee shall comply with the provisions of Trust Indenture Act Section 313(b) to the
extent applicable.



Section 7.08 Replacement of Trustee. A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee’s acceptance of
appointment as provided in this Section 7.08. The Trustee may resign in writing at any time and be
discharged from the trust hereby created by so notifying the Issuer. The Holders of a majority in
principal amount of the then-outstanding Notes may remove the Trustee by so notifying the Trustee
and the Issuer in writing. The Issuer may remove the Trustee if:




(a) the Trustee fails to comply with Section 7.10 hereof or Trust Indenture Act Section
310;




(b) 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;




(c) a custodian or public officer takes charge of the Trustee or its property; or




(d) the Trustee becomes incapable of acting.


 


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If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any
reason, the Issuer shall promptly appoint a successor Trustee. Within one year after the successor
Trustee takes office, the Holders of a majority in principal amount of the then-outstanding Notes
may appoint a successor Trustee to replace the successor Trustee appointed by the Issuer.



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



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.



A successor Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Issuer. Thereupon, the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to
Holders. The retiring Trustee shall 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 Issuer’s obligations under Section 7.07 hereof shall continue for the
benefit of the retiring Trustee.



Section 7.09 Successor Trustee by Merger, Etc. If the Trustee consolidates, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another corporation, the
successor corporation without any further act shall be the successor Trustee.



Section 7.10 Eligibility; Disqualification. There shall at all times be a Trustee hereunder that is a
corporation organized and doing business under the laws of the United States of America or of any
state thereof that is authorized under such laws to exercise corporate trustee power, that is
subject to supervision or examination by federal or state authorities and that has, together with
its parent, a combined capital and surplus of at least $50,000,000 as set forth in its most recent
published annual report of condition.



This Indenture shall always have a Trustee who satisfies the requirements of Trust Indenture
Act Sections 310(a)(1), (2) and (5). The Trustee is subject to Trust Indenture Act Section 310(b).



Section 7.11 Preferential Collection of Claims Against Issuer. The Trustee is subject to Trust Indenture
Act Section 311(a), excluding any creditor relationship listed in Trust Indenture Act Section
311(b). A Trustee who has resigned or been removed shall be subject to Trust Indenture Act Section
311(a) to the extent indicated therein.



ARTICLE 8




LEGAL DEFEASANCE AND COVENANT DEFEASANCE



Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance. The Issuer may, at its option and
at any time, elect to have either Section 8.02 or 8.03 hereof applied to all outstanding Notes and
all obligations of the Guarantors with respect to the Guarantees upon compliance with the
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Section 8.02 Legal Defeasance and Discharge. Upon the Issuer’s exercise under Section 8.01 hereof of the
option applicable to this Section 8.02, the Issuer and the Guarantors shall, 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 and Guarantees, the Collateral
released and all Events of Default cured on the date the conditions set forth below are satisfied
(“Legal Defeasance”). For this purpose, Legal Defeasance means that the Issuer and the Guarantors
shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding
Notes, which shall 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 (a) and (b) below, and to have
satisfied all its other obligations under such Notes and this Indenture including that of the
Guarantors (and the Trustee, on demand of and at the expense of the Issuer, shall execute proper
instruments acknowledging the same), except for the following provisions which shall survive until
otherwise terminated or discharged hereunder:




(a) the rights of Holders to receive payments in respect of the principal of, premium,
if any, and interest on the Notes when such payments are due solely out of the trust created
pursuant to this Indenture referred to in Section 8.04 hereof;




(b) the Issuer’s obligations with respect to Notes concerning issuing temporary Notes,
registration of such Notes, mutilated, destroyed, lost or stolen Notes and the maintenance
of an office or agency for payment and money for security payments held in trust;




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




(d) this Section 8.02.



Subject to compliance with this Article 8, the Issuer 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 Issuer’s exercise under Section 8.01 hereof of the option
applicable to this Section 8.03, the Issuer and the Guarantors shall, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, be released from their obligations under the
covenants contained in Sections 4.03, 4.04, 4.05, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14,
4.15, 4.16, 4.17, 4.18, 4.19 and 4.20 hereof, clauses (iv) and (v) of Section 5.01(a), Section
5.01(c) and 5.01(d) and Article 13 hereof with respect to the outstanding Notes on and after the
date the conditions set forth in Section 8.04 hereof are satisfied (“Covenant Defeasance”), and the
Notes shall 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 shall continue to be deemed “outstanding” for all other purposes hereunder (it
being understood that such Notes may not be deemed outstanding for accounting purposes). For this
purpose, Covenant Defeasance means that, with respect to the outstanding Notes and the Guarantees,
the Issuer and the Guarantors may omit to comply with and shall have no liability in respect of any
term, condition or limitation set forth in any such covenant, whether directly or indirectly, by
reason of any reference elsewhere herein to any such covenant or by reason of any reference in any
such covenant to any other provision herein or in any other document and such omission to comply
shall 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 the Guarantees shall be
unaffected thereby. In addition, upon the Issuer’s exercise under Section 8.01 hereof of the
option applicable to this Section 8.03 hereof, subject to the satisfaction of the conditions set
forth in Section 8.04 hereof, Section 6.01(c) (solely with respect to the covenants that are
released upon a Covenant Defeasance), 6.01(d), 6.01(e), 6.01(f) (solely with respect to Restricted
Subsidiaries subject thereto), 6.01(g) (solely with respect to Restricted Subsidiaries subject
thereto), 6.01(h) and 6.01(i) hereof shall not constitute Events of Default.



Section 8.04 Conditions to Legal or Covenant Defeasance. The following shall be the conditions to the
application of either Section 8.02 or 8.03 hereof to the outstanding Notes:



In order to exercise either Legal Defeasance or Covenant Defeasance with respect to the Notes:


 


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(a) the Issuer must irrevocably deposit with the Trustee, in trust, for the benefit of
the Holders, cash in U.S. dollars, U.S. dollar-denominated Government Securities, or a
combination thereof, in such amounts as shall be sufficient, in the opinion of a nationally
recognized firm of independent public accountants, to pay the principal of, premium, if any,
and interest due on the Notes on the stated maturity date or on the Redemption Date, as the
case may be, of such principal, premium, if any, or interest on such Notes and the Issuer
must specify whether such Notes are being defeased to maturity or to a particular Redemption
Date, provided that upon any redemption that requires the payment of the Applicable Premium,
the amount deposited shall be sufficient for purpose of this Indenture to the extent that
an amount is deposited with the Trustee equal to the Applicable Premium calculated as of the
date of the notice of redemption, with any deficit as the date of redemption (any such
amount, the “Applicable Premium Deficit”) only required to be deposited with the Trustee on
or prior to the date of redemption. Any Applicable Premium Deficit shall be set forth in an
Officer’s Certificate delivered to the Trustee simultaneously with the deposit of such
Applicable Premium Deficit that confirms that such Applicable Premium Deficit shall be
applied toward such redemption (it being understood that any defeasance shall be subject to
the condition subsequent that such deficit is in fact paid);




(b) in the case of Legal Defeasance, the Issuer shall have delivered to the Trustee an
Opinion of Counsel confirming that, subject to customary assumptions and exclusions,




(i) the Issuer has received from, or there has been published by, the United
States Internal Revenue Service a ruling, or




(ii) since the issuance of the Notes, there has been a change in the applicable
U.S. federal income tax law;




(c) in the case of Legal Defeasance, the Issuer shall have delivered to the Trustee an
Opinion of Counsel confirming that, subject to customary assumptions and exclusions, the
Holders and beneficial owners of the Notes shall not recognize income, gain or loss for U.S.
federal income tax purposes, as applicable, as a result of such Legal Defeasance and shall
be subject to U.S. 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;




(d) in the case of Covenant Defeasance, the Issuer shall have delivered to the Trustee
an Opinion of Counsel confirming that, subject to customary assumptions and exclusions, the
Holders and beneficial owners of the Notes shall not recognize income, gain or loss for U.S.
federal income tax purposes as a result of such Covenant Defeasance and shall be subject to
such 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;




(e) no Default (other than that resulting from borrowing funds to be applied to make
such deposit and any similar and simultaneous deposit relating to other Indebtedness and, in
each case, the granting of Liens in connection therewith) shall have occurred and be
continuing on the date of such deposit;




(f) such Legal Defeasance or Covenant Defeasance shall not result in a breach or
violation of, or constitute a default under the ABL Facility, or any other material
agreement or instrument (other than this Indenture) to which, the Issuer or any Guarantor is
a party or by which the Issuer or any Guarantor is bound (other than that resulting from any
borrowing of funds to be applied to make the deposit required to effect such Legal
Defeasance or Covenant Defeasance and any similar and simultaneous deposit relating to other
Indebtedness, and, in each case, the granting of Liens in connection therewith);




(g) the Issuer shall have delivered to the Trustee an Opinion of Counsel to the effect
that, as of the date of such opinion and subject to customary assumptions and exclusions
following the deposit, the trust funds shall not be subject to the effect of Section 547 of
Title 11 of the United States Code;




(h) the Issuer shall have delivered to the Trustee an Officer’s Certificate stating
that the deposit was not made by the Issuer with the intent of defeating, hindering,
delaying or defrauding any creditors of the Issuer or any Guarantor or others; and




(i) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an
Opinion of Counsel (which Opinion of Counsel may be subject to customary assumptions and
exclusions) each stating that all conditions precedent provided for or relating to the Legal
Defeasance or the Covenant Defeasance, as the case may be, have been complied with.


 


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Section 8.05 Deposited Money and Government Securities to be Held in Trust; other Miscellaneous Provisions.
Subject to Section 8.06 hereof, all money and Government Securities (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this
Section 8.05, the “Trustee”) pursuant to Section 8.04 hereof in respect of the outstanding Notes
shall be held in trust and applied by the Trustee, in accordance with the provisions of such Notes
and this Indenture, to the payment, either directly or through any Paying Agent (including the
Issuer or a Guarantor 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 interest, but
such money need not be segregated from other funds except to the extent required by law.



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



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



Section 8.06 Repayment to Issuer. Subject to any applicable abandoned property law, any money deposited
with the Trustee or any Paying Agent, or then held by the Issuer, in trust for the payment of the
principal of, premium, if any, or interest on any Note and remaining unclaimed for two years after
such principal, and premium, if any, or interest has become due and payable shall be paid to the
Issuer on its request or (if then held by the Issuer) shall be discharged from such trust; and the
Holder of such Note shall thereafter look only to the Issuer for payment thereof, and all liability
of the Trustee or such Paying Agent with respect to such trust money, and all liability of the
Issuer as trustee thereof, shall thereupon cease.



Section 8.07 Reinstatement. If the Trustee or Paying Agent is unable to apply any United States dollars or
Government Securities in accordance with Section 8.02 or 8.03 hereof, as the case may be, by reason
of any order or judgment of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Issuer’s and the Guarantors’ obligations under this
Indenture and the Notes and the Guarantees shall 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 that, if the Issuer makes any payment of principal of, premium, if any, or interest on
any Note following the reinstatement of its obligations, the Issuer shall be subrogated to the
rights of the Holders of such Notes to receive such payment from the money held by the Trustee or
Paying Agent.



ARTICLE 9




AMENDMENT, SUPPLEMENT AND WAIVER



Section 9.01 Without Consent of Holders. Notwithstanding Section 9.02 hereof, the Issuer, the Guarantors
and the Trustee may amend or supplement this Indenture, the Collateral Documents and any Guarantee
or Notes without the consent of any Holder:




(a) to cure any ambiguity, omission, mistake, defect or inconsistency;




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




(c) to comply with Section 5.01 hereof;




(d) to provide the assumption of the Issuer’s or any Guarantor’s obligations to the
Holders;


 


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




(f) to add covenants for the benefit of the Holders or to surrender any right or power
conferred upon the Issuer or any Guarantor;




(g) to comply with requirements of the SEC in order to effect or maintain the
qualification of this Indenture under the Trust Indenture Act;




(h) to evidence and provide for the acceptance and appointment under this Indenture of
a successor Trustee hereunder pursuant to the requirements hereof;




(i) to provide for the issuance of exchange notes or private exchange notes, which are
identical to exchange notes except that they are not freely transferable;




(j) to add or release (as permitted under this Indenture) a Guarantor under this
Indenture or Collateral under the Collateral Documents;




(k) to add or release any Collateral as permitted under this Indenture;




(l) to add any Additional Parity Debt as permitted under this Indenture and the
Collateral Documents;




(m) to conform the text of this Indenture, Guarantees or the Notes to any provision of
the “Description of Notes” section of the Offering Memorandum to the extent that such
provision in such “Description of Notes” section was intended to be a verbatim recitation of
a provision of this Indenture, Guarantee or Notes, as certified to the Trustee in an
Officer’s Certificate from the Issuer; or




(n) to make any amendment to the provisions of this Indenture relating to the transfer
and legending of Notes as permitted by this Indenture, including, without limitation, to
facilitate the issuance and administration of the Notes; provided that (a) compliance with
this Indenture as so amended would not result in Notes being transferred in violation of the
Securities Act or any applicable securities law and (b) such amendment does not materially
and adversely affect the rights of Holders to transfer Notes.



Upon the request of the Issuer accompanied by a resolution of its board of directors
authorizing the execution of any such amended or supplemental indenture, and upon receipt by the
Trustee of the documents described in Section 7.02 hereof, the Trustee shall join with the Issuer
and the Guarantors in the execution of any amended or supplemental indenture authorized or
permitted by the terms of this Indenture and to make any further appropriate agreements and
stipulations that may be therein contained, but the Trustee shall have the right, but not be
obligated to, enter into such amended or supplemental indenture that affects its own rights, duties
or immunities under this Indenture or otherwise. Notwithstanding the foregoing, neither an Opinion
of Counsel nor an Officer’s Certificate shall be required in connection with the addition of a
Guarantor under this Indenture (other than as required by Section 4.15 hereof) upon execution and
delivery by such Guarantor and the Trustee of a supplemental indenture to this Indenture, the form
of which is attached as Exhibit D hereto.



Section 9.02 With Consent of Holders. Except as provided in Section 9.01 and this Section 9.02, the
Issuer, the Guarantors and the Trustee may amend or supplement this Indenture, the Notes, the
Guarantees and the Collateral Documents with the consent of the Holders of at least a majority in
principal amount of the Notes then outstanding, including consents obtained in connection with a
purchase of, or tender offer or exchange offer for Notes, and, subject to Section 6.04 and 6.07
hereof, any existing Default or Event of Default (other than a Default or Event of Default in the
payment of the principal of, premium, if any, or interest on the Notes, except a payment default
resulting from an acceleration that has been rescinded) or compliance with any provision of this
Indenture, the Collateral Documents or the Notes issued thereunder may be waived with the consent
of the Holders of a majority in principal amount of the then outstanding Notes (including consents
obtained in connection with a purchase of or tender offer or exchange offer for the Notes), other
than Notes beneficially owned by the Issuer or its Affiliates.
Section 2.08 hereof and Section 2.09 hereof shall determine which Notes are considered to be
“outstanding” for the purposes of this Section 9.02.


 


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Upon the request of the Issuer accompanied by a resolution of its board of directors
authorizing the execution of any such amended or supplemental indenture, and upon the filing with
the Trustee of evidence of the consent of the Holders as aforesaid, the Trustee shall join with the
Issuer and the Guarantors in the execution of such amended or supplemental indenture unless such
amended or supplemental indenture directly affects the Trustee’s own rights, duties or immunities
under this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not
be obligated to, enter into such amended or supplemental indenture.



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



After an amendment, supplement or waiver under this Section 9.02 becomes effective, the Issuer
shall mail to the Holders affected thereby a notice briefly describing the amendment, supplement or
waiver. Any failure of the Issuer to mail such notice, or any defect therein, shall not, however,
in any way impair or affect the validity of any such amended or supplemental indenture or waiver.



Without the consent of each affected Holder of Notes, an amendment or waiver under this
Section 9.02 may not (with respect to any Notes held by a non-consenting Holder):




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




(b) reduce the principal of or change the fixed final maturity of any such Note or
alter or waive the provisions with respect to the redemption of such Notes (for the
avoidance of doubt, the provisions relating to Section 3.09, Section 4.10 and Section 4.14
hereof are not redemptions of the Notes);




(c) reduce the rate of or change the time for payment of interest on any Note;




(d) waive a Default in the payment of principal of or premium, if any, or interest on
the Notes, except a rescission of acceleration of the Notes by the Holders of at least a
majority in aggregate principal amount of the Notes and a waiver of the payment default that
resulted from such acceleration, or in respect of a covenant or provision contained in this
Indenture or any Guarantee which cannot be amended or modified without the consent of all
Holders;




(e) make any Note payable in money other than that stated therein;




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




(g) make any change in these amendment and waiver provisions;




(h) impair the right of any Holder to receive payment of principal of, or premium, if
any, or interest on such Holder’s Notes on or after the due dates therefor or to institute
suit for the enforcement of any payment on or with respect to such Holder’s Notes;




(i) make any change to or modify the ranking of the Notes that would adversely affect
the Holders; or




(j) except as expressly permitted by this Indenture, modify the Guarantees of any
Significant Subsidiary in any manner materially adverse to the Holders.


 


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In addition, without the consent of the Holders of at least 66 2/3% in principal amount of
Notes then outstanding, no amendment, supplement or waiver may (1) modify any Collateral Document,
the Intercreditor Agreement or the provisions in this Indenture dealing with the Collateral or the Collateral
Documents that would release all or substantially all of the Collateral from the Liens of the
Collateral Documents (except as permitted by the terms of this Indenture, the Collateral Documents
and the Intercreditor Agreement) or change or alter the priority of the security interests in the
Collateral, (2) make any change in any Collateral Document, any Intercreditor Agreement or the
provisions of this Indenture dealing with the Collateral or the Collateral Documents or the
application of trust proceeds of the Collateral that would adversely affect the Holders in any
material respect or (3) modify the Intercreditor Agreement in any manner adverse to the Holders in
any material respect other than in accordance with the terms of this Indenture, Collateral
Documents and the Intercreditor Agreement.



Section 9.03 Compliance with Trust Indenture Act. From the date on which this Indenture is required to be
qualified under the Trust Indenture Act, every amendment or supplement to this Indenture or the
Notes shall be set forth in an amended or supplemental indenture that complies in all material
respects with the Trust Indenture Act as then in effect.



Section 9.04 Revocation and Effect of Consents. Until an amendment, supplement or waiver becomes
effective, a consent to it by a Holder 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. However, 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 waiver, supplement or amendment
becomes effective. An amendment, supplement or waiver becomes effective in accordance with its
terms and thereafter binds every Holder.



The Issuer may, but shall not be obligated to, fix a record date for the purpose of
determining the Holders entitled to consent to any amendment, supplement, or waiver. If a record
date is fixed, then, notwithstanding the preceding paragraph, those Persons who were Holders at
such record date (or their duly designated proxies), and only such Persons, shall be entitled to
consent to such amendment, supplement, or waiver or to revoke any consent previously given, whether
or not such Persons continue to be Holders after such record date. No such consent shall be valid
or effective for more than 120 days after such record date unless the consent of the requisite
number of Holders has been obtained.



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 Issuer 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 shall not affect the validity and
effect of such amendment, supplement or waiver.



Section 9.06 Trustee to Sign Amendments, Etc. The Trustee shall sign any amendment, supplement or waiver
authorized pursuant to this Article 9 if the amendment or supplement does not adversely affect the
rights, duties, liabilities or immunities of the Trustee. The Issuer may not sign an amendment,
supplement or waiver until the board of directors of the Issuer approves it. In executing any
amendment, supplement or waiver, the Trustee shall be provided with, upon request, and (subject to
Section 7.01 hereof) shall be fully protected in relying upon, in addition to the documents
required by Section 12.04 hereof, an Officer’s Certificate and an Opinion of Counsel each stating
that the execution of such amended or supplemental indenture is authorized or permitted by this
Indenture and that such amendment, supplement or waiver is the legal, valid and binding obligation
of the Issuer and any Guarantors party thereto, enforceable against them in accordance with its
terms, subject to customary exceptions, and complies with the provisions hereof (including Section
9.03 hereof). Notwithstanding the foregoing, neither an Opinion of Counsel nor an Officer’s
Certificate shall be required (other than as required by Section 4.15 hereof) for the Trustee to
execute any a supplemental indenture to this Indenture, the form of which is attached as
Exhibit D hereto, adding a new Guarantor under this Indenture.



 


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ARTICLE 10




GUARANTEES



Section 10.01 Guarantee. Subject to this Article 10, each of the Guarantors hereby, jointly and severally,
irrevocably and 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 Issuer hereunder or
thereunder, that: (a) the principal of and interest and premium, if any, on the Notes shall be
promptly paid in full when due, 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 Issuer to the Holders or the Trustee hereunder or thereunder shall be promptly
paid in full, all in accordance with the terms hereof and thereof; and (b) in case of any extension
of time of payment or renewal of any Notes or any of such other obligations, that same shall be
promptly paid in full when due in accordance with the terms of the extension or renewal, whether at
stated maturity, by acceleration or otherwise. Failing payment when due of any amount so
guaranteed for whatever reason, the Guarantors shall 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.



The Guarantors hereby agree that their obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the
absence of any action to enforce the same, any waiver or consent by any Holder with respect to any
provisions hereof or thereof, the recovery of any judgment against the Issuer, 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 Issuer,
any right to require a proceeding first against the Issuer, protest, notice and all demands
whatsoever and covenants that this Guarantee shall not be discharged except by full payment of the
obligations contained in the Notes and this Indenture.



Each Guarantor also agrees to pay any and all costs and expenses (including reasonable
attorneys’ fees) incurred by the Trustee or any Holder in enforcing any rights under this Section
10.01.



If any Holder or the Trustee is required by any court or otherwise to return to the Issuer,
the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation
to either the Issuer or the Guarantors, any amount paid either to the Trustee or such Holder, this
Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect.



Each Guarantor agrees that it shall 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, (x) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes
of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (y) 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) shall forthwith become due and payable by the Guarantors for the
purpose of this Guarantee. The Guarantors shall have the right to seek contribution from any
nonpaying Guarantor so long as the exercise of such right does not impair the rights of the Holders
under the Guarantees.



Each Guarantee shall remain in full force and effect and continue to be effective should any
petition be filed by or against the Issuer for liquidation, reorganization, should the Issuer
become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee
be appointed for all or any significant part of the Issuer’s assets, and shall, to the fullest
extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any
time payment of the Notes is, pursuant to applicable law, rescinded or reduced in amount, or must
otherwise be restored or returned by any obligee on the Notes or Guarantees, whether as a “voidable
preference,” “fraudulent transfer” or otherwise, all as though such payment had not been made. In
the event that any payment or any part thereof is rescinded, reduced, restored or returned, the
Notes shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such
amount paid and not so rescinded, reduced, restored or returned.


 


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In case any provision of any Guarantee shall be invalid, illegal or unenforceable, the
validity, legality, and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.



The Guarantee issued by any Guarantor shall be a general secured senior obligation of such
Guarantor and shall rank equally in right of payment with all existing and future Senior
Indebtedness of such Guarantor, if any.



Each payment to be made by a Guarantor in respect of its Guarantee shall be made without
set-off, counterclaim, reduction or diminution of any kind or nature.



Section 10.02 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 Guarantee of such Guarantor not constitute a fraudulent
transfer or conveyance, or similar limitation, 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 Guarantee. To effectuate the foregoing intention, the Trustee, the
Holders and the Guarantors hereby irrevocably agree that the obligations of each Guarantor shall be
limited to the maximum amount as shall, 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 10, result in the obligations of such Guarantor under its Guarantee not constituting a
fraudulent conveyance or fraudulent transfer, or similar limitation, under applicable law. Each
Guarantor that makes a payment under its Guarantee shall be entitled upon payment in full of all
guaranteed obligations under this Indenture to a contribution from each other Guarantor in an
amount equal to such other Guarantor’s pro rata portion of such payment based on the respective net
assets of all the Guarantors at the time of such payment determined in accordance with GAAP.



Section 10.03 Execution and Delivery. To evidence its Guarantee set forth in Section 10.01 hereof, each Guarantor hereby agrees
that this Indenture shall be executed on behalf of such Guarantor by its President or Treasurer,
one of its Vice Presidents or one of its Assistant Vice Presidents or other authorized signatory.



Each Guarantor hereby agrees that its Guarantee set forth in Section 10.01 hereof shall remain
in full force and effect notwithstanding the absence of the endorsement of any notation of such
Guarantee on the Notes.



If an Officer whose signature is on this Indenture no longer holds that office at the time the
Trustee authenticates the Note, the Guarantee shall be valid nevertheless.



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



If required by Section 4.15 hereof, the Issuer shall cause any Restricted Subsidiary to comply
with the provisions of Section 4.15 hereof and this Article 10, to the extent applicable.



Section 10.04 Subrogation. Each Guarantor shall be subrogated to all rights of Holders against the Issuer in respect
of any amounts paid by any Guarantor pursuant to the provisions of Section 10.01 hereof; provided
that, if an Event of Default has occurred and is continuing, no Guarantor shall be entitled to
enforce or receive any payments arising out of, or based upon, such right of subrogation until all
amounts then due and payable by the Issuer under this Indenture or the Notes shall have been paid
in full.



Section 10.05 Benefits Acknowledged. Each Guarantor acknowledges that it shall receive direct and indirect benefits from the
financing arrangements contemplated by this Indenture and that the guarantee and waivers made by it
pursuant to its Guarantee are knowingly made in contemplation of such benefits.



Section 10.06 Release of Guarantees by Guarantors. Each Guarantee by a Guarantor shall provide by its terms that it shall be automatically and
unconditionally released and discharged, and no further action by such Guarantor, the Issuer or the
Trustee is required for the release of the such Guarantor’s Guarantee, upon:


 


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(a) (i) any sale, exchange, disposition or transfer (by merger, amalgamation,
consolidation or otherwise) of (x) the Capital Stock of such Guarantor, after which the
applicable Guarantor is no longer a Restricted Subsidiary or (y) all or substantially all
the assets of such Guarantor, in each case if such sale, exchange, disposition or transfer
is made in compliance with the applicable provisions of this Indenture;




(ii) in the case of a Restricted Subsidiary which after the Issue Date is required to
become a Guarantor, the release or discharge of the guarantee by such Guarantor of
Indebtedness under a guarantee that resulted in the creation of such Guarantee, except a
discharge or release by or as a result of payment under such guarantee (it being understood
that a release subject to a contingent reinstatement is still a release, and that if any
such Guarantee is so reinstated, such Guarantee shall also be reinstated to the extent that
such Guarantor would then be required to provide a Guarantee pursuant to Section 4.15)
(notwithstanding the foregoing, a Guarantee provided by a Guarantor on the Issue Date may
not be released and discharged pursuant to this Section 10.06(a)(ii));




(iii) the designation of any Restricted Subsidiary that is a Guarantor as an
Unrestricted Subsidiary in compliance with the applicable provisions of this Indenture; or




(iv) the exercise by the Issuer of its Legal Defeasance option or Covenant Defeasance
option in accordance with Article 8 hereof or the satisfaction and discharge of the Issuer’s
obligations under this Indenture in accordance with the terms of this Indenture; and




(b) such Guarantor delivering to the Trustee an Officer’s Certificate and an Opinion of
Counsel, each stating that all conditions precedent provided for in this Indenture relating
to such transaction have been complied with.



ARTICLE 11




SATISFACTION AND DISCHARGE



Section 11.01 Satisfaction and Discharge. This Indenture shall be discharged and shall cease to be of further effect as to all Notes,
when either:




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




(b) (i) all Notes not theretofore delivered to the Trustee for cancellation have
become due and payable by reason of the making of a notice of redemption or otherwise, shall
become due and payable within one year or are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Issuer, and the Issuer or any Guarantor has
irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust
solely for the benefit of the Holders, cash in U.S. dollars, U.S. dollar-denominated
Government Securities, or a combination thereof, in such amounts as shall be sufficient
without consideration of any reinvestment of interest to pay and discharge the entire
indebtedness on the Notes not theretofore delivered to the Trustee for cancellation for principal, premium, if any, and accrued
interest to the date of maturity or redemption; provided that upon any redemption that
requires the payment of the Applicable Premium, the amount deposited shall be sufficient for
purposes of this Indenture to the extent that an amount is deposited with the Trustee equal
to the Applicable Premium calculated as of the date of the notice of redemption, with any
Applicable Premium Deficit only required to be deposited with the Trustee on or prior to the
date of redemption. Any Applicable Premium Deficit shall be set forth in an Officer’s
Certificate delivered to the Trustee simultaneously with the deposit of such Applicable
Premium Deficit that confirms that such Applicable Premium Deficit shall be applied toward
such redemption (it being understood that any satisfaction and discharge shall be subject to
the condition subsequent that such deficit is in fact paid);


 


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(ii) no Default (other than that resulting from borrowing funds to be applied to make
such deposit or any similar and simultaneous deposit relating to other Indebtedness and the
granting of Liens in connection therewith) with respect to this Indenture or the Notes shall
have occurred and be continuing on the date of such deposit or shall occur as a result of
such deposit and such deposit shall not result in a breach or violation of, or constitute a
default under the ABL Facility (other than resulting from any borrowing of funds to be
applied to make such deposit and any similar and simultaneous deposit relating to other
Indebtedness and, in each case, the granting of Liens in connection therewith);




(iii) the Issuer has paid or caused to be paid all sums payable by it under this
Indenture; and




(iv) the Issuer has delivered irrevocable instructions to the Trustee to apply the
deposited money toward the payment of the Notes at maturity or the Redemption Date, as the
case may be.



In addition, the Issuer must deliver an Officer’s 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 shall have been
deposited with the Trustee pursuant to subclause (i) of clause (b) of this Section 11.01, the
provisions of Section 11.02 and Section 8.06 hereof shall survive such satisfaction and discharge.



Section 11.02 Application of Trust Money. Subject to the provisions of Section 8.06 hereof, all money deposited with the Trustee
pursuant to Section 11.01 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 Issuer or a Guarantor acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, 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 applicable law.



If the Trustee or Paying Agent is unable to apply any money or Government Securities in
accordance with Section 11.01 hereof by reason of any legal proceeding or by reason of any order or
judgment of any court or Governmental Authority enjoining, restraining or otherwise prohibiting
such application, the Issuer’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 Issuer has made any payment of principal of, premium, if any, or interest on
any Notes because of the reinstatement of its obligations, the Issuer shall be subrogated to the
rights of the Holders to receive such payment from the money or Government Securities held by the
Trustee or Paying Agent.



ARTICLE 12




MISCELLANEOUS



Section 12.01 Trust Indenture Act Controls. From the date on which this Indenture is required to be qualified under the Trust Indenture
Act, if any provision of this Indenture limits, qualifies or conflicts with the duties imposed by
Trust Indenture Act Section 318(c), the imposed duties shall control.



Section 12.02 Notices. Any notice or communication by the Issuer, any Guarantor or the Trustee to the others is
duly given if in writing and delivered in person or mailed by first-class mail (registered or
certified, return receipt requested), fax or overnight air courier guaranteeing next day delivery,
to the others’ address:



If to the Issuer and/or any Guarantor:



Cambium Learning Group, Inc.

17855 North Dallas Parkway, Suite 400

Dallas, Texas 75287

Attention: Todd W. Buchardt, General Counsel

Fax No.: 214-424-6425


 


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with a copy to:



Lowenstein Sandler PC

1251 Avenue of the Americas

New York, New York 10021

Fax No.: 973-422-6809

Attention: Lowell A. Citron, Esq.



If to the Trustee:



Wells Fargo Bank, National Association

MAC N9311-110

625 Marquette Avenue

Minneapolis, MN 55479

Fax No.: 612-667-2160

Attention: Cambium Administrator



The Issuer, any Guarantor or the Trustee, by notice to the others, may designate additional or
different addresses for subsequent notices or communications.



All notices and communications (other than those sent to Holders) shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five calendar days after being
deposited in the mail, postage prepaid, if mailed by first-class mail; when receipt acknowledged,
if faxed or sent electronically; and the next Business Day after timely delivery to the courier, if
sent by overnight air courier guaranteeing next day delivery; provided that any notice or
communication delivered to the Trustee shall be deemed effective upon actual receipt thereof and,
subject to compliance with the Trust Indenture Act, on the final date on which publication is made,
if given by publication.



Any notice or communication to a Holder shall be electronically delivered, mailed by
first-class mail, certified or registered, return receipt requested, or by overnight air courier
guaranteeing next day delivery to its address shown on the Note Register kept by the Registrar.
Any notice or communication shall also be so mailed to any Person described in Trust Indenture Act
Section 313(c), to the extent required by the Trust Indenture Act. Failure to deliver a notice or
communication to a Holder or any defect in it shall not affect its sufficiency with respect to
other Holders.



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 or repurchase) to a
Holder of a Global Note
(whether by mail or otherwise), such notice shall be sufficiently given if given to the
Depositary (or its designee) pursuant to the standing instructions from the Depositary or its
designee, including by electronic mail in accordance with accepted practices at the Depositary.



If a notice or communication is mailed or otherwise delivered in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee receives it.



If the Issuer mails a notice or communication to Holders, it shall mail a copy to the Trustee
and each Agent at the same time.



Section 12.03 Communication by Holders with Other Holders. Holders may communicate pursuant to Trust Indenture Act Section 312(b) with other Holders
with respect to their rights under this Indenture or the Notes. The Issuer, the Trustee, the
Registrar and anyone else shall have the protection of Trust Indenture Act Section 312(c).


 


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Section 12.04 Certificate and Opinion as to Conditions Precedent. Upon any request or application by the Issuer or any of the Guarantors to the Trustee to
take any action under this Indenture, the Issuer or such Guarantor, as the case may be, shall
furnish to the Trustee:




(a) An Officer’s Certificate in form reasonably satisfactory to the Trustee (which
shall include the statements set forth in Section 12.05 hereof) stating that, in the opinion
of the signers, all conditions precedent and covenants, if any, provided for in this
Indenture relating to the proposed action have been satisfied; and/or




(b) An Opinion of Counsel in form reasonably satisfactory to the Trustee (which shall
include the statements set forth in Section 12.05 hereof) stating that, in the opinion of
such counsel, all such conditions precedent and covenants have been satisfied.



Section 12.05 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 Section 4.04 hereof
or Trust Indenture Act Section 314(a)(4)) shall comply with the provisions of Trust Indenture Act
Section 314(e) and shall include:




(a) a statement that the Person making such certificate or opinion has read such
covenant or condition;




(b) 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;




(c) a statement that, in the opinion of such Person, he or she has made such
examination or investigation as is necessary to enable him to express an informed opinion as
to whether or not such covenant or condition has been complied with (and, in the case of an
Opinion of Counsel, may be limited to reliance on an Officer’s Certificate as to matters of
fact); and




(d) a statement as to whether or not, in the opinion of such Person, such condition or
covenant has been complied with; provided, however, that with respect to matters of fact an
Opinion of Counsel may rely on an Officer’s Certificate or certificates of public officials.



Section 12.06 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 12.07 No Personal Liability of Directors, Officers, Employees and Stockholders. No past, present or future director, officer, employee, incorporator, member, partner or
stockholder of the Issuer or any Guarantor or any of their direct or indirect parent companies
(other than the Issuer and the Guarantors) shall have any liability, for any obligations of the
Issuer or the Guarantors under the Notes, the Guarantees or this Indenture or for any claim based
on, in respect of, or by reason of such obligations or their creation. Each Holder by accepting
Notes waives and releases all such liability. The waiver and release are part of the consideration
for issuance of the Notes.



Section 12.08 Governing Law. THIS INDENTURE, THE NOTES AND ANY GUARANTEE WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.



Section 12.09 Waiver of Jury Trial. EACH OF THE ISSUER, THE GUARANTORS AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTIONS CONTEMPLATED
HEREBY.


 


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Section 12.10 Force Majeure. In no event shall the Trustee be responsible or liable for any failure or delay in the
performance of its obligations under this Indenture arising out of or caused by, directly or
indirectly, forces beyond its reasonable control, including without limitation strikes, work
stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural
catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications
or computer (software or hardware) services.



Section 12.11 No Adverse Interpretation of Other Agreements. This Indenture may not be used to interpret any other indenture, loan or debt agreement of
the Issuer or its Restricted Subsidiaries or of any other Person. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.



Section 12.12 Successors. All agreements of the Issuer in this Indenture and the Notes shall bind its successors.
All agreements of the Trustee in this Indenture shall bind its successors. All agreements of each
Guarantor in this Indenture shall bind its successors, except as otherwise provided in Section
10.06 or Section 10.07 hereof.



Section 12.13 Severability. In case any provision in this Indenture or in the Notes shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.



Section 12.14 Counterpart Originals. The parties may sign any number of copies of this Indenture. Each signed copy shall be an
original, but all of them together represent the same agreement. This Indenture may be executed in
multiple counterparts which, when taken together, shall constitute one instrument.



Section 12.15 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 shall in no way modify or restrict any of the terms or provisions
hereof.



Section 12.16 Qualification of Indenture. The Issuer and the Guarantors shall qualify this Indenture under the Trust Indenture Act in
accordance with the terms and conditions of the Registration Rights Agreement and shall pay all
reasonable costs and expenses (including attorneys’ fees and expenses for the Issuer, the
Guarantors and the Trustee) incurred in connection therewith, including, but not limited to, costs
and expenses of qualification of this Indenture and the Notes and printing this Indenture and the
Notes. The Trustee shall be provided with such Officer’s Certificates, Opinions of Counsel or
other documentation as is necessary in connection with any such qualification of this Indenture
under the Trust Indenture Act.



ARTICLE 13




COLLATERAL DOCUMENTS



Section 13.01 Collateral and Collateral Documents.



(a) The due and punctual payment of the principal of and interest (including Additional
Interest, if any) on the Notes when and as the same shall be due and payable, whether on an
Interest Payment Date, at maturity, by acceleration, repurchase, redemption or otherwise, and
interest on the overdue principal of and interest (including Additional Interest, if any) on the
Notes and performance of all other Indenture Obligations of the Issuer and the Guarantors to the
Holders, the Trustee or the Notes Collateral Agent under this Indenture, the Notes (excluding, for
the avoidance of doubt, any Hedging Obligations and guarantees thereof secured under the ABL
Facility) and the Collateral Documents, according to the terms hereunder or thereunder, shall be
secured as provided in the Collateral Documents, which define the terms of the Liens that secure
the Notes and such other Obligations, subject to the terms of the Intercreditor Agreement. The
Trustee and the Issuer hereby acknowledge and agree that the Notes Collateral Agent holds the
Collateral in trust for the benefit of the Notes Collateral Agent, the Trustee and the Holders, in
each case pursuant to the terms of the Collateral Documents and the Intercreditor Agreement. Each
Holder, by accepting a Note, consents and agrees to the terms of the Collateral Documents
(including the provisions providing for the possession, use, release and foreclosure of Collateral)
and the Intercreditor Agreement as the same may be in effect or may be amended from time to time in
accordance with their terms and this Indenture and the Intercreditor Agreement, and authorizes and
directs the Notes Collateral Agent to enter into the Collateral Documents and the Intercreditor
Agreement and to perform its obligations and exercise its rights thereunder in accordance
therewith;



 


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provided, however, that if any of the provisions of the Collateral Documents limit,
qualify or conflict with the mandatory duties imposed by the provisions of the Trust Indenture Act,
the Trust Indenture Act shall control. Subject to the terms and provisions hereof, the Issuer
shall deliver to the Notes Collateral Agent copies of all documents pursuant to the Collateral
Documents, and shall do or cause to be done all such acts and things as may be reasonably required
by the next sentence of this Section 13.01 to assure and confirm to the Notes Collateral Agent the
security interest in the Collateral contemplated hereby, by the Collateral Documents or any part
thereof, as from time to time constituted, so as to render the same available for the security and
benefit of this Indenture and of the Notes secured hereby, according to the intent and purposes
herein expressed. The Issuer shall, and shall cause the Restricted Subsidiaries of the Issuer to,
use its and their commercially reasonable efforts to take any and all actions reasonably required
to cause the Collateral Documents to create and maintain, as security for the Indenture
Obligations, a valid and enforceable perfected Lien and security interest in and on all of the
Collateral (subject to the terms of the Intercreditor Agreement), in favor of the Notes Collateral
Agent for the benefit of the Notes Secured Parties.



(b) Notwithstanding the foregoing,




(i) the Capital Stock of the Restricted Subsidiaries of the Issuer that is owned by the
Issuer or any Guarantor (other than the Capital Stock of the Issuer) shall constitute Notes
Collateral only to the extent that such Capital Stock can secure the Notes without Rule 3-16
of Regulation S-X under the Securities Act (“Rule 3-16”) (or any other law, rule or regulation) requiring separate
financial statements of such Subsidiary to be filed with the SEC (or any other Governmental
Agency);




(ii) in the event that Rule 3-16 requires or is amended, modified or interpreted by the
SEC to require (or is replaced with another rule or regulation, or any other law, rule or
regulation is adopted, which would require) the filing with the SEC (or any other
Governmental Agency) of separate financial statements of any Restricted Subsidiary (other
than the Issuer) due to the fact that such Restricted Subsidiary’s Capital Stock secures the
Notes, then the Capital Stock of such Restricted Subsidiary shall automatically be deemed
not to be part of the Notes Collateral, but only to the extent necessary to not be subject
to such requirement (in such event, the Collateral Documents may be amended or modified,
without the consent of any Holder of the Notes, to the extent necessary to release the
security interests in the shares of Capital Stock and other securities that are so deemed to
no longer constitute part of the Notes Collateral); and




(iii) in the event that either Rule 3-16 is amended, modified or interpreted by the SEC
to permit (or is replaced with another rule or regulation, or any other law, rule or
regulation is adopted, which would permit) the Capital Stock of a Restricted Subsidiary that
was previously excluded to secure the Notes in excess of the amount then pledged without the
filing with the SEC (or any other Governmental Agency) of separate financial statements of
such Restricted Subsidiary, then the Capital Stock of such Restricted Subsidiary shall
automatically be deemed to be a part of the Notes Collateral but only to the extent
necessary to not be subject to any such financial statement requirement (in such event, the
Collateral Documents may be amended or modified, without the consent of any Holder of Notes,
to the extent necessary to subject to the Liens under the Collateral Documents such
additional Capital Stock).



(c) In addition to the limitations described in Section 13.01(b), the Notes Collateral shall
not include (i) property or assets as to which the Issuer has notified the Notes Collateral Agent
in writing that it has reasonably determined that the costs of obtaining a security interest are
excessive in relation to the value of the security to be afforded thereby and (ii) the Excluded
Assets.



(d) In the case of any Foreign Subsidiary, the Notes Collateral shall be limited to 100% of
the non-voting Capital Stock and 65% of the voting Capital Stock of such Foreign Subsidiary.



(e) Each Holder of the Notes, by its acceptance of the Notes, (i) consents to the
subordination of Liens provided for in the Intercreditor Agreement, (ii) agrees that it shall be
bound by, and shall take no actions contrary to, the provisions of the Intercreditor Agreement and
(iii) authorizes and instructs the Noteholder Collateral Agent (as defined in the Intercreditor
Agreement) on behalf of each holder of Indenture Noteholder Lien Obligations (as defined in the
Intercreditor Agreement) to enter into the Intercreditor Agreement as Noteholder Collateral Agent
on behalf of such holders of Indenture Noteholder Lien Obligations. The foregoing provisions of
this Section 13.01(e) are intended as an inducement to the holders of Indenture Noteholder Lien
Obligations to acquire the Notes and such Holders of Notes are intended third party beneficiaries
of such provisions and of the Intercreditor Agreement.


 


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(f) In addition, notwithstanding anything to the contrary contained in this Indenture or the
Collateral Documents, the Issuer and its Subsidiaries shall not be required to obtain any landlord
waivers, estoppels or collateral access letters and shall not be required to (i) take actions to
perfect by control or possession in any collateral, other than stock pledges and control agreements
relating to ABL Collateral delivery of, promissory notes, and control over letter of credit rights,
in each case in excess of $1.0 million, (ii) take any action with respect to any intellectual
property which is (x) not registered or registered outside of the United States Patent and
Trademark Office or the United States Copyright Office (other than the filing of Uniform Commercial
Code Financing Statements) or, (y) in respect of intellectual property registered in the United
States Patent and Trademark Office or the United States Copyright Office, (1) not used in the
business of the Issuer or any Guarantor and (2) immaterial to the Issuer and the Guarantors (as
determined by Issuer in good faith), or (iii) take any actions under any laws outside of the United
States to grant, perfect or enforce any security interest.



Section 13.02 Recordings and Opinions. To the extent required under the mandatory provisions of the Trust Indenture Act, the
Issuer shall comply with the provisions of § 314(b) of the Trust Indenture Act following
qualification of this Indenture pursuant to the
Trust Indenture Act, except to the extent not required as set forth in any SEC regulation or
interpretation (including any no-action letter issued by the Staff of the SEC, whether issued to
the Issuer or any other Person), subject to the requirements of the Trust Indenture Act. Following
such qualification, to the extent the Issuer is required to furnish to the Trustee an Opinion of
Counsel pursuant to Trust Indenture Act Section 314(b)(2), the Issuer shall furnish such opinion as
required by such Section.



Section 13.03 Release of Liens on Collateral.



(a) Subject to Sections 13.03(b) and 13.04 hereof, 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, the Intercreditor Agreement or as
provided hereby. The Issuer and the Guarantors shall be entitled to a release of property and
other assets included in the Collateral from the Liens securing the Notes, and the Trustee (subject
to its receipt of an Officer’s Certificate and Opinion of Counsel as provided below) shall release,
or instruct the Notes Collateral Agent to release, as applicable, the same from such Liens at the
Issuer’s sole cost and expense, under one or more of the following circumstances:




(i) in whole, upon payment in full and discharge of all obligations under this
Indenture, the Guarantees and the Collateral Documents




(ii) to enable the Issuer or any Guarantor to sell, exchange or otherwise dispose of
any of the Collateral to the extent not prohibited under Section 4.10 hereof to a Person
that is not the Issuer or a Guarantor;




(iii) automatically as to any Equity Interests of any Subsidiary of the Issuer (other
than the initial Issuer and its successors), if at any time Rule 3-16 of Regulation S-X
under the Securities Act, or any other law, rule or regulation requires or is interpreted by
the SEC to require the filing with the SEC (or any other U.S. federal governmental agency)
of separate financial statements of such Subsidiary due to the fact that such Subsidiary’s
Equity Interests are pledged to secure the Notes or any Guarantee by a Guarantor;




(iv) in the case of a Guarantor that is released from its Guarantee with respect to all
of the Notes, on the property and assets of such Guarantor;




(v) to the extent property is subject to a lease from a third party that is not an
Issuer or a Guarantor, upon termination of the lease;




(vi) pursuant to an amendment or waiver in accordance with Article 9 hereof;




(vii) if all of the Notes have been defeased pursuant to Article 8 hereof or satisfied
and discharged pursuant to Article 11 hereof; or


 


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(viii) upon payment in full of the principal of, together with accrued and unpaid
interest (including Additional Interest, if any) on, all of the Notes and all other
Obligations related thereto under this Indenture, the Guarantees and the Collateral
Documents with respect thereto, that are due and payable at or prior to the time such
principal, together with accrued and unpaid interest (including Additional Interest, if any)
are paid.



(b) Subject to the provisions contained in the Intercreditor Agreement, in general the
second-priority lien on the ABL Collateral securing the Notes shall remain in full force and effect
notwithstanding the termination and repayment in full of the ABL Facility and the release by the
ABL Agent of the first-priority liens on the ABL Collateral. The second-priority lien on the ABL
Collateral securing the Notes shall terminate and be released automatically if the first-priority
liens on the ABL Collateral are released by the ABL Agent (unless, at the time of such release of
such first-priority liens, an Event of Default shall have occurred and be continuing under this
Indenture). Notwithstanding the existence of an Event of Default, the second-priority lien on the
ABL Collateral securing the
Notes shall also terminate and be released automatically to the extent the first-priority
liens on the ABL Collateral are released by the ABL Agent in connection with a sale, transfer or
disposition of ABL Collateral that is either not prohibited under this Indenture or occurs in
connection with the foreclosure of, or other exercise of remedies with respect to, such ABL
Collateral by the ABL Agent (except with respect to any proceeds of such sale, transfer or
disposition that remain after satisfaction in full of the ABL Lenders Debt). Notwithstanding the
foregoing, in the event of a release of liens by the ABL Agent on all or substantially all of the
ABL Collateral (other than in connection with a foreclosure upon or other exercise of rights and
remedies by the ABL Agent with respect to such ABL Collateral), no release of the second-priority
liens on the ABL Collateral securing the Notes shall be made unless (i) consent to such release has
been given by the requisite percentage or number of the holders of the Notes at the time
outstanding, in accordance with Section 9.02 hereof, as provided for in the Notes, this Indenture,
the Guarantees or the Collateral Documents and (ii) the Issuer has delivered an Officer’s
Certificate to the Notes Collateral Agent certifying that all such consents have been obtained.
The second priority Liens in the ABL Collateral securing the Notes that otherwise would have been
released pursuant to the second sentence of this clause (b) but for the occurrence and continuation
of an Event of Default shall be released when such Event of Default and all other Events of Default
under this Indenture cease to exist.



(c) Upon receipt of an Officer’s Certificate and an Opinion of Counsel certifying that all
conditions precedent under this Indenture and the Collateral Documents, if any, to such release
have been met and any necessary or proper instruments of termination, satisfaction or release
prepared by the Issuer, the Trustee shall, or shall cause the Notes Collateral Agent, to execute,
deliver or acknowledge (at the Issuer’s expense) such instruments or releases to evidence the
release of any Collateral permitted to be released pursuant to this Indenture or the Collateral
Documents or the Intercreditor Agreement. Neither the Trustee nor the Notes Collateral Agent shall
be liable for any such release undertaken in good faith in reliance upon any such Officer’s
Certificate or Opinion of Counsel, and notwithstanding any term hereof or in any Collateral
Document to the contrary, the Trustee and Notes Collateral Agent shall not be under any obligation
to release any such Lien and security interest, or execute and deliver any such instrument of
release, satisfaction or termination, unless and until it receives such Officer’s Certificate and
Opinion of Counsel.



Section 13.04 Permitted Releases Not to Impair Lien; Trust Indenture Act Requirements.



(a) To the extent applicable, and if required under the mandatory provisions of the Trust
Indenture Act, and subject to the limitations set forth in this Indenture, the Issuer shall cause §
314(d) of the Trust Indenture Act, relating to the release of property or securities subject to the
Lien of the Collateral Documents, to be complied with.



(b) Any release of Collateral permitted by Section 13.03 hereof shall be deemed not to impair
the Liens under this Indenture and subject to the limitations set forth in this Indenture, the
Issuer shall cause the Collateral Documents in contravention thereof. Any certificate or opinion
required by § 314(d) of the Trust Indenture Act may be made by an officer or legal counsel, as
applicable, of the Issuer except in cases where § 314(d) of the Trust Indenture Act requires that
such certificate or opinion be made by an independent Person, which Person shall be an independent
engineer, appraiser or other expert.


 


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(c) Notwithstanding anything to the contrary in this Section 13.04, the Issuer shall not be
required to comply with all or any portion of § 314(d) of the Trust Indenture Act if it determines,
in good faith based on the written advice of counsel, a copy of which written advice shall be
provided to the Trustee, that under the terms of § 314(d) of the Trust Indenture Act or any
interpretation or guidance as to the meaning thereof issued by the SEC and its staff, including “no
action” letters or exemptive orders, all or any portion of § 314(d) of the Trust Indenture Act is
inapplicable to any release or series of releases of Collateral.



Section 13.05 Certificates of the Trustee. In the event that the Issuer wishes to release Collateral in accordance with this
Indenture, the Collateral Documents and the Intercreditor Agreement and the Issuer has delivered
the certificates and documents required by the Collateral Documents and Section 13.03 hereof, if §
314(d) of the Trust Indenture Act is applicable to such releases (the applicability of which shall be established to the reasonable satisfaction of the
Trustee pursuant to Section 13.04 hereof or otherwise), the Trustee shall determine whether it has
received all documentation required by § 314(d) of the Trust Indenture Act in connection with such
release (which determination may be based upon the Opinion of Counsel hereafter described) and,
based on an Opinion of Counsel pursuant to Section 12.04 hereof, shall deliver a certificate to the
Notes Collateral Agent setting forth such determination. The Trustee, however, shall have no duty
to confirm the legality, genuineness, accuracy, contents or validity of such documents (or any
signature appearing therein), its sole duty being to certify its receipt of such documents which,
on their face (and assuming that they are what they purport to be), conform to § 314(d) of the
Trust Indenture Act.



Section 13.06 Suits to Protect the Collateral. Subject to the provisions of Article 7 hereof and the Intercreditor Agreement, the Trustee
in its sole discretion and without the consent of the Holders, on behalf of the Holders, may direct
the Notes Collateral Agent to take all actions it deems necessary or appropriate in order to:




(a) enforce any of the terms of the Collateral Documents; and




(b) collect and receive any and all amounts payable in respect of the Obligations
hereunder.



Subject to the provisions of the Collateral Documents and the Intercreditor Agreement, the
Trustee shall have power to institute and to maintain such suits and proceedings as it may deem
expedient to prevent any impairment of the Collateral by any acts which may be unlawful or in
violation of any of the Collateral Documents or this Indenture, and such suits and proceedings as
the Trustee, in its sole discretion, may deem expedient to preserve or protect its interests and
the interests of the Holders in the Collateral (including power to institute and maintain suits or
proceedings to restrain the enforcement of or compliance with any legislative or other governmental
enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of,
or compliance with, such enactment, rule or order would impair the Lien on the Collateral or be
prejudicial to the interests of the Holders or the Trustee). Nothing in this Section 13.06 shall
be considered to impose any such duty or obligation to act on the part of the Trustee.



Section 13.07 Authorization of Receipt of Funds by the Trustee Under the Collateral Documents.
Subject to the provisions of the Intercreditor Agreement, the Trustee is authorized to
receive any funds for the benefit of the Holders distributed under the Collateral Documents, and to
make further distributions of such funds to the Holders according to the provisions of this
Indenture.



Section 13.08 Purchaser Protected. In no event shall any purchaser in good faith of any property purported to be released
hereunder be bound to ascertain the authority of the Notes Collateral Agent or the Trustee to
execute the release or to inquire as to the satisfaction of any conditions required by the
provisions hereof for the exercise of such authority or to see to the application of any
consideration given by such purchaser or other transferee; nor shall any purchaser or other
transferee of any property or rights permitted by this Article 13 to be sold be under any
obligation to ascertain or inquire into the authority of the Issuer or the applicable Guarantor to
make any such sale or other transfer.



Section 13.09 Powers Exercisable by Receiver or Trustee.
In case the Collateral shall be in the possession of a receiver or trustee, lawfully
appointed, the powers conferred in this Article 13 upon the Issuer or a Guarantor with respect to
the release, sale or other disposition of such property may be exercised by such receiver or
trustee, and an instrument signed by such receiver or trustee shall be deemed the equivalent of any
similar instrument of the Issuer or a Guarantor or of any Officer or Officers thereof required by
the provisions of this Article 13; and if the Trustee shall be in the possession of the Collateral
under any provision of this Indenture, then such powers may be exercised by the Trustee.


 


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Section 13.10 Release upon Termination of the Issuer’s Obligations.
In the event that the Issuer delivers to the Trustee, an Officer’s Certificate certifying
that (a) payment in full of the principal of, together with accrued and unpaid interest (including
Additional Interest, if any) on, all of the Notes and all other Obligations under this Indenture,
the Guarantees and the Collateral Documents with respect thereto, that are due and payable at or
prior to the time such principal, together with accrued and unpaid interest (including Additional
Interest, if any), are paid or (b) the Issuer shall have exercised its legal defeasance option or
its covenant defeasance option, in compliance with the provisions of Article 8, or its satisfaction
and discharge option, in compliance with the provisions of Article 11 hereof, in each case with
respect to all of the Notes, the Trustee shall deliver to the Issuer and the Notes Collateral Agent
a notice stating that the Trustee, on behalf of the Holders, disclaims and gives up any and all
rights it has in or to the Collateral (other than with respect to funds held by the Trustee
pursuant to Article 8 and Article 11), and any rights it has under the Collateral Documents, and
upon receipt by the Notes Collateral Agent of such notice, the Notes Collateral Agent shall be
deemed not to hold a Lien in the Collateral on behalf of the Trustee and shall do or cause to be
done all acts reasonably necessary at the Issuer’s cost to release such Lien as soon as is
reasonably practicable.



Section 13.11 Notes Collateral Agent.



(a) The Trustee and each of the Holders by acceptance of the Notes hereby designates and
appoints the Notes Collateral Agent as its agent under this Indenture, the Collateral Documents and
the Intercreditor Agreement and the Trustee and each of the Holders, by acceptance of the Notes,
hereby irrevocably authorizes the Notes Collateral Agent to take such action on its behalf under
the provisions of this Indenture, the Collateral Documents and the Intercreditor Agreement and to
exercise such powers and perform such duties as are expressly delegated to the Notes Collateral
Agent by the terms of this Indenture, the Collateral Documents and the Intercreditor Agreement,
together with such powers as are reasonably incidental thereto. The provisions of this Section
13.11 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the
Holders, the Issuer nor any of the Guarantors shall have any rights as a third party beneficiary of
any of the provisions contained herein other than as expressly provided in Section 13.03.
Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Collateral
Documents and the Intercreditor Agreement, the Notes Collateral Agent shall not have any duties or
responsibilities hereunder, nor shall the Notes Collateral Agent have or be deemed to have any
fiduciary relationship with the Trustee, any Holder or any Guarantor, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture,
the Collateral Documents and the Intercreditor Agreement or otherwise exist against the Notes
Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term
“agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote
any fiduciary or other implied (or express) obligations arising under agency doctrine of any
applicable law. Instead, such term is used merely as a matter of market custom, and is intended to
create or reflect only an administrative relationship between independent contracting parties.
Except as expressly otherwise provided in this Indenture, the Notes Collateral Agent shall have and
may use its sole discretion with respect to exercising or refraining from exercising any
discretionary rights or taking or refraining from taking any actions which the Notes Collateral
Agent is expressly entitled to take or assert under this Indenture, the Collateral Documents and
the Intercreditor Agreement, including the exercise of remedies pursuant to Article 6, and any
action so taken or not taken shall be deemed consented to by the Trustee and the Holders.



(b) None of the Notes Collateral Agent or any of its Affiliates shall (i) be liable for any
action taken or omitted to be taken by any of them under or in connection with this Indenture or
the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or
under or in connection with any Collateral Document or the Intercreditor Agreement or the
transactions contemplated thereby (except for its own gross negligence or willful misconduct), or
(ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement,
representation, warranty, covenant or agreement made by the Issuer or any Guarantor, or any officer
or Affiliate of any of the foregoing, contained in this or any Indenture, or in any certificate,
report, statement or other document referred to or provided for in, or received by the Notes
Collateral Agent under or in connection with, this or any other Indenture, the Collateral Documents
or the Intercreditor Agreement, or the validity, effectiveness, genuineness, enforceability or
sufficiency of this or any other Indenture, the Collateral Documents or the Intercreditor
Agreement, or for any failure of the Issuer, any Guarantor or any other party to this Indenture,
the Collateral Documents or the Intercreditor Agreement to perform its obligations hereunder or
thereunder. None of the Notes Collateral Agent or any of its Affiliates shall be under any
obligation to the Trustee or any Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions
of, this or any other Indenture, the Collateral Documents or the Intercreditor Agreement or to
inspect the properties, books, or records of the Issuer, any Guarantor or any Guarantor’s
Affiliates.


 


-102-









 





(c) The Notes Collateral Agent and its Affiliates may make loans to, issue letters of credit
for the account of, accept deposits from, acquire equity interests in and generally engage in any
kind of banking, trust, financial advisory, underwriting, or other business with the Issuer, any
Guarantor and their Affiliates as though it was not the Notes Collateral Agent hereunder and
without notice to or consent of the Trustee. The Trustee and the Holders acknowledge that,
pursuant to such activities, the Notes Collateral Agent or its Affiliates may receive information
regarding the Issuer, any Guarantor or its Affiliates (including information that may be subject to
confidentiality obligations in favor of the Issuer, any such Guarantor or such Affiliate) and
acknowledge that the Notes Collateral Agent shall not be under any obligation to provide such
information to the Trustee or the Holders. Nothing herein shall impose or imply any obligation on
the part of the Notes Collateral Agent to advance funds.



(d) The Notes Collateral Agent is authorized and directed to (i) enter into the Collateral
Documents, (ii) enter into the Intercreditor Agreement, (iii) bind the Holders on the terms as set
forth in the Collateral Documents and the Intercreditor Agreement and (iv) perform and observe its
obligations under the Collateral Documents and the Intercreditor Agreement.



(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or
otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising
under, or relating to, this Indenture, except for any such proceeds or payments received by the
Trustee from the Notes Collateral Agent pursuant to the terms of this Indenture, or (ii) payments
from the Notes Collateral Agent in excess of the amount required to be paid to the Trustee pursuant
to Article 6, the Trustee shall promptly turn the same over to the Notes Collateral Agent, in kind,
and with such endorsements as may be required to negotiate the same to the Notes Collateral Agent.



(f) The Trustee is each Holder’s agent for the purpose of perfecting the Holders’ security
interest in assets which, in accordance with Article 9 of the Uniform Commercial Code, can be
perfected only by possession. Should the Trustee obtain possession of any such Collateral, upon
request from the Issuer, the Trustee shall notify the Notes Collateral Agent thereof, and, promptly
upon the Notes Collateral Agent’s written request therefor shall deliver such Collateral to the
Notes Collateral Agent or otherwise deal with such Collateral in accordance with the Notes
Collateral Agent’s instructions.



(g) The Notes Collateral Agent shall have no obligation whatsoever to the Trustee or any of
the Holders to assure that the Collateral exists or is owned by the Issuer or any Guarantor or is
cared for, protected, or insured or has been encumbered, or that the Notes Collateral Agent’s Liens
have been properly or sufficiently or lawfully created, perfected, protected, maintained or
enforced or are entitled to any particular priority, or to determine whether all of the Issuer or
any Guarantor’s property constituting Collateral intended to be subject to the Lien and security
interest of the Collateral Documents has been properly and completely listed or delivered, as the
case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto,
or to exercise at all or in any particular manner or under any duty of care, disclosure, or
fidelity, or to continue exercising, any of the rights, authorities, and powers granted or
available to the Notes Collateral Agent pursuant to this Indenture, any Collateral Document or the
Intercreditor Agreement, it being understood and agreed that in respect of the Collateral, or any
act, omission, or event related thereto, the Notes Collateral Agent may act in any manner it may
deem appropriate, in its sole discretion given the Notes Collateral Agent’s own interest in the
Collateral and that the Notes Collateral Agent shall have no other duty or liability whatsoever to
the Trustee or any Holder as to any of the foregoing.



(h) No provision of this Indenture, the Intercreditor Agreement or any Collateral Document
shall require the Notes Collateral Agent (or the Trustee) 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 to take or omit to take any action hereunder or thereunder or take any action at the
request or direction of Holders (or the Trustee in the case of the Notes Collateral Agent) if it
shall have reasonable grounds for believing that repayment of such funds is not assured to it.


 


-103-









 





(i) The Notes Collateral Agent (i) shall not be liable for any action it takes or omits to
take in good faith which it reasonably believes to be authorized or within its rights or powers, or
for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the
Notes Collateral Agent was grossly negligent in
ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received
by it except as the Notes Collateral Agent may agree in writing with the Issuer (and money held in
trust by the Notes Collateral Agent need not be segregated from other funds except to the extent
required by law), (iii) the Notes Collateral Agent may consult with counsel of its selection and
the advice or opinion of such counsel as to matters of law shall be full and complete authorization
and protection from liability in respect of any action taken, omitted or suffered by it in good
faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights
or powers to the Notes Collateral Agent shall not be construed to impose duties to act.



(j) Neither the Notes Collateral Agent nor the Trustee shall be liable for delays or failures
in performance resulting from acts beyond its control. Such acts shall include but not be limited
to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations
superimposed after the fact, fire, communication line failures, computer viruses, power failures,
earthquakes or other disasters. Neither the Notes Collateral Agent nor the Trustee shall be liable
for any indirect, special or consequential damages (including but not limited to lost profits)
whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of
action.



Section 13.12 Designations.
Except as provided in the next sentence, for purposes of the provisions hereof and the
Intercreditor Agreement requiring the Issuer to designate Indebtedness for the purposes of the term
“ABL Lenders Debt” or any other such designations hereunder or under the Intercreditor Agreement,
any such designation shall be sufficient if the relevant designation is set forth in writing,
signed on behalf of the Issuer by an Officer and delivered to the Trustee, the Notes Collateral
Agent and the ABL Agent. For all purposes hereof and the Intercreditor Agreement, the Issuer
hereby designates the Obligations pursuant to the ABL Facility as “ABL Lenders Debt.”



Section 13.13 Additional Collateral.



(a) (i) Subject to the limitations set forth or referenced in this Indenture, applicable law
and any exceptions set forth in the Collateral Documents, the Issuer and each Guarantor will cause
the issued and outstanding Capital Stock (other than Excluded Capital Stock) of each Subsidiary
directly owned by the Issuer or any Guarantor to be subject at all times to a first priority
(subject to the Intercreditor Agreement and to other Permitted Liens), perfected Lien in favor of
the Notes Collateral Agent pursuant to the terms and conditions of this Indenture and the other
Collateral Documents.



(ii) Subject to the limitations set forth or referenced in this Indenture, applicable law and
any exceptions set forth in the Collateral Documents, the Issuer and each Guarantor will cause,
except with respect to intercompany Indebtedness, all evidences of Indebtedness for borrowed money
that is owing to the Issuer or any Guarantor to be evidenced by a duly executed promissory note and
pledged and delivered to the Notes Collateral Agent under the Security Agreement and accompanied by
instruments of transfer with respect thereto endorsed in blank.



(iii) Each of the Issuer and each Guarantor agrees that all Indebtedness of the Issuer and
each of its Subsidiaries that is owing to the Issuer or any Guarantor shall be evidenced by an
intercompany note, which promissory note shall be required to be pledged and delivered to the Notes
Collateral Agent under the Security Agreement and accompanied by instruments of transfer with
respect thereto endorsed in blank.



(b) In furtherance of Section 4.16(b) hereof, but subject to the limitations set forth or
referenced in this Indenture, applicable law and any exceptions set forth in the Collateral
Documents, and without limiting the foregoing, the Issuer and each Guarantor will execute and
deliver to the Notes Collateral Agent such documents, agreements and instruments, and will take or
cause to be taken such further actions (including the filing and recording of financing statements,
fixture filings, mortgages, deeds of trust and other documents and such other actions or
deliveries, as applicable (including the delivery of the Real Property Collateral Requirements),
which may be required by law or which the Notes Collateral Agent may, from time to time, reasonably
request to carry out the terms and conditions of this Indenture and the other Collateral Documents
and to ensure perfection and priority of the
Liens created or intended to be created by the Collateral Documents, all at the expense of the
Issuer and the Guarantors.


 


-104-









 





(c) Subject to the limitations set forth or referred to in this Indenture, applicable law and
any exceptions set forth in the Collateral Documents, if any material assets (including any real
property or improvements thereto or any interest therein) are acquired by the Issuer or any
Guarantor after the Issue Date (other than assets constituting Collateral under the Collateral
Documents that become subject to the Lien in favor of the Notes Collateral Agent upon acquisition
thereof), the Issuer will, as soon as reasonably practicable, notify the Notes Collateral Agent in
writing thereof, and the Issuer or such Guarantor will cause such assets to be subjected to a Lien
securing the Secured Obligations and will take such actions as shall be necessary or reasonably
requested by the Notes Collateral Agent to grant and perfect such Liens, including actions
described in paragraph (b) of this Section 13.13, all at the expense of the Issuer and the
Guarantors.



(d) [Reserved].



(e) Notwithstanding anything to the contrary contained herein, the Issuer and the Guarantors
shall not be required to include as Collateral any Excluded Assets.



[Signatures on following page]



 


-105-









 





IN WITNESS WHEREOF, the undersigned have executed this Indenture as of the closing date.



	 	 	 	 	 
	 	CAMBIUM LEARNING GROUP, INC.

 	 
	 	By:  	/s/ Ronald Klausner	 
	 	 	Name:  	Ronald Klausner	 
	 	 	Title:  	Chief Executive Officer	 
	 
	 	VSS-CAMBIUM HOLDINGS II CORP.

 	 
	 	By:  	/s/ Scott J. Troeller	 
	 	 	Name:  	Scott J. Troeller	 
	 	 	Title:  	President	 
	 
	 	VSS-CAMBIUM HOLDINGS, LLC

 	 
	 	By:	VSS-Cambium Holdings II Corp., its sole member

 	 
	 	By:  	/s/ Scott J. Troeller	 
	 	 	Name:  	Scott J. Troeller	 
	 	 	Title:  	President	 
	 
	 	VSS-CAMBIUM HOLDINGS IV, LLC

 	 
	 	By:	VSS-Cambium Holdings, LLC, its sole member

 	 
	 	By:	VSS-Cambium Holdings II Corp., its sole member

 	 
	 	By:  	/s/ Scott J. Troeller	 
	 	 	Name:  	Scott J. Troeller	 
	 	 	Title:  	President	 
	 
	 	CAMBIUM LEARNING, INC.

 	 
	 	By:  	/s/ Ronald Klausner	 
	 	 	Name:  	Ronald Klausner	 
	 	 	Title:  	Chief Executive Officer	 
	 
	 	KURZWEIL/INTELLITOOLS, INC.

 	 
	 	By:  	/s/ Brad Almond	 
	 	 	Name:  	Brad Almond	 
	 	 	Title:  	Chief Financial Officer	 
	 
	 	LAZEL, INC.

 	 
	 	By:  	/s/ Brad Almond	 
	 	 	Name:  	Brad Almond	 
	 	 	Title:  	Chief Financial Officer	 
	 
	 	CAMBIUM EDUCATION, INC.

 	 
	 	By:  	/s/ Brad Almond	 
	 	 	Name:  	Brad Almond	 
	 	 	Title:  	Chief Financial Officer	 



[Signature Page to Indenture]



 


 









 








	 	 	 	 	 
	 	WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee

 	 
	 	By:  	/s/
Richard Prokosch 	 
	 	 	Name:  	Richard Prokosch 	 
	 	 	Title:  	Vice President 	 
	 	 	Date:  	February 17, 2011 	 
	 



[Signature Page to Indenture]



 


 









 








EXHIBIT A




[Face of Senior Secured Note]




[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]



 


A-1









 








CUSIP
13201A AB3 / U1308J AB8




ISIN
US13201AAB35 / USU1308JAB80




[RULE 144A][REGULATION S] [GLOBAL] NOTE




representing



9.75% Senior Secured Note due 2017



No.





Cambium Learning Group, Inc., a Delaware corporation, promises to pay to           
or registered assigns, the principal sum [set forth on the Schedule of Exchanges of Interests in
the Global Senior Note attached hereto] [of           United States Dollars] on February
15, 2017.



Interest Payment Dates: February 15 and August 15, commencing on August 15, 2011



Record Dates: February 1 and August 1


 


A-2









 





IN WITNESS HEREOF, the Issuer has caused this instrument to be duly executed.



Dated:




	 	 	 	 	 
	 	CAMBIUM LEARNING GROUP, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 


 


A-3









 






	 	 	 	 	 




This is one of the Notes referred to in the within-mentioned Indenture:



Dated:




	 	 	 	 	 
	 	WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



 


A-4











 





[Back of Senior Secured Note]

9.75% Senior Secured Note due 2017




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



(1) Interest. Cambium Learning Group, Inc., a Delaware corporation, promises to pay interest
on the principal amount of this Note at a rate per annum of 9.75% from February 17, 2011 until
maturity and to pay the Additional Interest, if any, payable pursuant to the Registration Rights
Agreement referred to below. The Issuer shall pay interest on this Note semi-annually in arrears
on February 15 and August 15 of each year beginning August 15, 2011, or, if any such day is not a
Business Day, on the next succeeding Business Day (each, an “Interest Payment Date”). The Issuer
shall make each interest payment to the Holder of record of this Note on the immediately preceding
February 1 and August 1 (each, a “Record Date”). Interest on this Note shall accrue from the most
recent date to which interest has been paid or, if no interest has been paid, from and including
February 17, 2011. The Issuer shall 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 the rate borne by this Note; it shall pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue installments of interest (without regard to any
applicable grace periods) from time to time on demand at the rate borne by this Note. Interest
shall be computed on the basis of a 360-day year comprised of twelve 30-day months.



(2) Method of Payment. The Issuer shall pay interest on this Note to the Person who is the
registered Holder of this Note at the close of business on the Record Date (whether or not a
Business Day) next preceding the Interest Payment Date, even if this Note is cancelled 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. Payment of interest may be made by check mailed to
the Holders at their addresses set forth in the Note Register of Holders, provided that (a) all
cash payments of principal, premium, if any, and interest on, Notes represented by Global Notes
registered in the name of or held by DTC or its nominee shall be made by wire transfer of
immediately available funds to the accounts specified by the Holder or Holders thereof and (b) all
payments of principal, premium, if any, and interest with respect to certificated Notes shall be
made by wire transfer to a U.S. dollar account maintained by the payee with a bank in the United
States if such Holder elects payment by wire transfer by giving written notice to the Trustee or
the Paying Agent to such effect designating such account no later than 30 days immediately
preceding the relevant due date for payment (or such other date as the Trustee may accept in its
discretion). Such payment shall 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, Wells Fargo Bank, National Association, the
Trustee under the Indenture, shall act as Paying Agent and Registrar. The Issuer may change any
Paying Agent or Registrar without notice to the Holders. The Issuer or any of its Subsidiaries may
act in any such capacity.



(4) Indenture. The Issuer issued the Notes under an Indenture, dated as of February 17, 2011
(the “Indenture”), among Cambium Learning Group, Inc., the Guarantors party thereto, and the
Trustee. This Note is one of a duly authorized issue of notes of the Issuer designated as its
9.75% Senior Secured Notes due 2017. The Issuer shall be entitled to issue Additional Notes in
accordance with Sections 2.01, 4.09 and 4.12 of the Indenture. The terms of the Notes include
those stated in the Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended (the “Trust Indenture Act”). The Notes are subject to all such
terms, and Holders are referred to the Indenture and such Act 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.



(5) Optional Redemption.



(a) Except as described below under clauses 5(b), 5(c) and 5(d) hereof, the Notes shall not be
redeemable at the Issuer’s option.


 


A-5









 





(b) At any time prior to February 15, 2014, the Issuer may redeem all or a part of the Notes
at a redemption price equal to 100.0% of the principal amount of such Notes redeemed plus the
Applicable Premium as of,
plus accrued and unpaid interest, if any, to, but excluding the date of redemption (the
“Redemption Date”), subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date.



(c) On or after February 15, 2014, the Issuer may redeem the Notes, at the redemption prices
(expressed as percentages of principal amount of the Notes to be redeemed) set forth below, plus
accrued and unpaid interest, if any, to but excluding the Redemption Date, subject to the right of
Holders of record on the relevant record date to receive interest due on the relevant interest
payment date, if redeemed during the twelve-month period beginning on February 15 of each of the
years indicated below:



	 	 	 	 	 
	Year	 	Percentage	 
	2014
	 	 	104.875	%
	2015
	 	 	102.438	%
	2016 and thereafter
	 	 	100.000	%






(d) Until February 15, 2014, the Issuer may, at its option, on one or more occasions, redeem
up to 35.0% of the aggregate principal amount of Notes issued under this Indenture at a redemption
price equal to 109.750% of the aggregate principal amount thereof plus accrued and unpaid interest
and Additional Interest, if any, to, but excluding the Redemption Date, subject to the right of
Holders of record on the relevant record date to receive interest due on the relevant interest
payment date, with the net cash proceeds from one or more Equity Offerings to the extent that such
net cash proceeds are received by or contributed to the Issuer; provided that (i) at least 65.0% of
the sum of the aggregate principal amount of the Notes originally issued under this Indenture on
the Issue Date and any Additional Notes issued under the Indenture after the Issue Date remains
outstanding immediately after the occurrence of each such redemption (excluding Notes held by the
Issuer or any of its Subsidiaries); and (ii) each such redemption occurs within 90 days of the date
of closing of each such Equity Offering. At any time and from time to time prior to February 15,
2014, the Issuer may redeem up to 10% of the aggregate principal amount of the Notes (including
Additional Notes, if any) that have been issued under the Indenture at a redemption price of 103%
of the principal amount thereof, plus accrued and unpaid interest, if any, to the Redemption Date;
provided that in no event may the Issuer redeem more than 10% of the original aggregate principal
amount of the Notes in any twelve-month period. Any redemption or notice of redemption may, at the
Issuer’s discretion, be subject to one or more conditions precedent, including, but not limited to,
completion of an Equity Offering, other offering or other corporate transaction event. Notice of
any redemption in respect of an Equity Offering may be given prior to the completion thereof. If
any Notes are listed on an exchange, and the rules of such exchange so require, the Issuer shall
notify the exchange of any such notice of redemption. In addition, the Issuer shall notify the
exchange of the principal amount of any Notes outstanding following any partial redemption of
Notes.



(e) Any redemption pursuant to this paragraph 5 shall be made pursuant to the provisions of
Sections 3.01 through 3.07 of the Indenture.



(6) Mandatory Redemption. The Issuer shall not be required to make mandatory redemption or
sinking fund payments with respect to the Notes.



(7) Notice of Redemption. Subject to Section 3.03 of the Indenture, notice of redemption
shall be delivered electronically or mailed by first-class mail at least 30 days but not more than
60 days before the redemption date (except that redemption notices may be delivered electronically
or mailed more than 60 days prior to a redemption date if the notice is issued in connection with
Article 8 or Article 11 of the Indenture) to each Holder whose Notes are to be redeemed at its
registered address. No Notes of less than $2,000 can be redeemed in part, except that if all the
Notes of a Holder are to be redeemed, the entire amount of Notes held by such Holder shall be
redeemed. On and after the Redemption Date, interest ceases to accrue on this Note or portions
thereof called for redemption.



(8) Offers to Repurchase. Upon the occurrence of a Change of Control, the Issuer shall make a
Change of Control Offer in accordance with Section 4.14 of the Indenture. In connection with
certain Asset Sales, the Issuer shall make an Asset Sale Offer as and when provided in accordance
with Sections 3.09 and 4.10 of the Indenture.


 


A-6









 





(9) Security. In order to secure the Indenture Obligations, the Issuer and the Guarantors
have entered into the Collateral Documents. The Indenture Obligations shall be secured by Liens on
the Collateral in accordance with the terms and provisions of the Collateral Documents and will be
subject to the Intercreditor Agreement.



(10) Denominations, Transfer, Exchange. The Notes are in registered form without coupons in
denominations of $2,000 and any integral multiple of $1,000 in excess of $2,000. The transfer of
Notes may be registered and Notes may be exchanged as provided in the Indenture. The Registrar and
the Trustee may require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and the Issuer may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Issuer 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 Issuer need not exchange or register the transfer of any Notes for a
period of 15 days before a selection of Notes to be redeemed.



(11) Persons Deemed Owners. The registered Holder of a Note may be treated as its owner for
all purposes.



(12) Amendment, Supplement and Waiver. The Indenture, the Guarantees or the Notes may be
amended or supplemented as provided in the Indenture.



(13) Defaults and Remedies. The Events of Default relating to the Notes are defined in
Section 6.01 of the Indenture. If any Event of Default occurs and is continuing, the Trustee or
the Holders of at least 25.0% in principal amount of the then outstanding Notes may declare the
principal, premium, if any, interest and any other monetary obligations on all the then outstanding
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 as set forth in the Indenture, all
outstanding Notes shall become due and payable immediately without further action or notice.
Holders may not enforce the Indenture, the Notes or the Guarantees except as provided in the
Indenture. Subject to certain limitations, Holders of a majority in aggregate principal amount of
the then outstanding Notes (excluding any Notes directly or indirectly held by the Issuer or its
Affiliates) may direct the Trustee in its exercise of any trust or power. The Trustee may withhold
from Holders notice of any continuing Default (except a Default relating to the payment of
principal, premium, if any, or interest) if it determines that withholding notice is in their
interest. The Holders of a majority in aggregate principal amount of the Notes then outstanding by
notice to the Trustee may on behalf of all the Holders waive any existing Default or and its
consequences under the Indenture except a continuing Default in payment of the principal of,
premium, if any, or interest on, any of the Notes held by a non-consenting Holder. The Issuer is
required to deliver to the Trustee annually a statement regarding compliance with the Indenture,
and the Issuer is required within five Business Days after becoming aware of any Default, to
deliver to the Trustee a statement specifying such Default and what action the Issuer proposes to
take with respect thereto.



(14) Authentication. This Note shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose until authenticated by the manual signature of the Trustee.



(15) Additional Rights of Holders of Restricted Global Notes and Restricted Definitive Notes.
In addition to the rights provided to Holders under the Indenture, Holders of Restricted Global
Notes and Restricted Definitive Notes shall have all the rights set forth in the Registration
Rights Agreement, including the right to receive Additional Interest (as defined in the
Registration Rights Agreement).



(16) Governing Law. THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE
THE INDENTURE, THE NOTES AND THE GUARANTEES.



(17) CUSIP and ISIN Numbers. Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Issuer has caused CUSIP and ISIN numbers to be
printed on the Notes and the Trustee may use CUSIP and ISIN 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.


 


A-7









 





The Issuer shall furnish to any Holder upon written request and without charge a copy of the
Indenture and/or the Registration Rights Agreement. Requests may be made to the Issuer at the
following address:



Cambium Learning Group, Inc.

17855 North Dallas Parkway, Suite 400

Dallas, Texas 75287

Facsimile: 214-424-6425

Attention: Todd W. Buchardt, General Counsel


 


A-8









 








ASSIGNMENT FORM




To assign this Note, fill in the form below:




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







 

(Insert assignee’s legal name)





 

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




 





 





 

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




	 	 	 

	and irrevocably appoint
 


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








	 	 	 	 	 
	 	 	 
	Date:                     
                     	Your Signature:  	 
	 	 	(Sign exactly as your name appears on the face of this Note) 
	 	 	 
	 



	 	 	 	 	 
	Signature Guarantee*:	 	 




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



 


A-9









 










OPTION OF HOLDER TO ELECT PURCHASE





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



o Section 4.10      
o Section 4.14




If you want to elect to have only part of this Note purchased by the Issuer pursuant to
Section 4.10 or Section 4.14 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-10









 










SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*





The initial outstanding principal amount of this Global Note is $          . 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 or Definitive Note for an interest in this Global Note, have
been made:



	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Principal Amount of	 	 
	 	 	Amount of decrease	 	Amount of increase	 	this Global Secured	 	Signature of
	 	 	in Principal Amount	 	in Principal Amount	 	Note following such	 	authorized officer
	 	 	of this Global	 	of this Global	 	decrease or	 	of Trustee or
	Date of Exchange	 	Secured Note	 	Secured Note	 	increase	 	Custodian
	 	 	 	 	 	 	 	 	 




 


A-11









 






EXHIBIT B




FORM OF CERTIFICATE OF TRANSFER




Cambium Learning Group, Inc.

17855 North Dallas Parkway, Suite 400

Dallas, Texas 75287

Facsimile: [               ]

Attention:  [               ]




Wells Fargo Bank, National Association

MAC N9311-110

625 Marquette Avenue

Minneapolis, MN 55479

Fax No.: 612-667-2160

Attention: Cambium Administrator





	 	Re: 	 	9.75% Senior Secured Notes due 2017





Reference is hereby made to the Senior Secured Notes Indenture, dated as of February 17, 2011
(the “Indenture”), among Cambium Learning Group, Inc., the Guarantors party thereto and the
Trustee. Capitalized terms used but not defined herein shall have the meanings given to them in
the Indenture.



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



[CHECK ALL THAT APPLY]




1. o CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE RELEVANT 144A
GLOBAL NOTE OR RELEVANT DEFINITIVE NOTE PURSUANT TO RULE 144A. The Transfer is being effected
pursuant to and in accordance with Rule 144A under the United States Securities Act of 1933, as
amended (the “Securities Act”), and, accordingly, the Transferor hereby further certifies that the
beneficial interest or 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.



2. o CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE RELEVANT
REGULATION S GLOBAL NOTE OR RELEVANT DEFINITIVE NOTE PURSUANT TO REGULATION S. The Transfer is
being effected pursuant to and in accordance with Rule 903 or Rule 904 and, accordingly, the
Transferor hereby further certifies that (i) the Transfer is not being made to a person in the
United States and (x) at the time the buy order was originated, the Transferee was outside the
United States or such Transferor and any Person acting on its behalf reasonably believed and
believes that the Transferee was outside the United States or (y) the transaction was executed in,
on or through the facilities of a designated offshore securities market and neither such Transferor
nor any Person acting on its behalf knows that the transaction was prearranged with a buyer in the
United States, (ii) no directed selling efforts have been made in contravention of the requirements
of Rule 903(b) or Rule 904(b) of Regulation S and (iii) the transaction is not part of a plan or
scheme to evade the registration requirements of the Securities Act. Upon consummation of the
proposed transfer in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note shall be subject to the restrictions on Transfer enumerated in the
Indenture and the Securities Act.


 


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3. o CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE
RELEVANT 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 Issuer or a subsidiary thereof; or




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



4. o CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN AN UNRESTRICTED
GLOBAL NOTE OR OF AN UNRESTRICTED DEFINITIVE NOTE.



(a) o CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The Transfer is being effected
pursuant to and in accordance with Rule 144 under the Securities Act and in compliance with
the transfer restrictions contained in the Indenture and any applicable blue sky securities
laws of any state of the United States and (ii) the restrictions on transfer contained in
the Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer in
accordance with the terms of the Indenture, the transferred beneficial interest or
Definitive Note shall 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 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 shall 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 shall 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.


 


B-2









 





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



	 	 	 	 	 
	 	[Insert Name of Transferor]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 


 


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ANNEX A TO CERTIFICATE OF TRANSFER





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





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





	 	(a)	 	o a beneficial interest in the:






	 	(i)	 	o 144A Global Note ([CUSIP:               
      ]), or
	 
	 	(ii)	 	o Regulation S Global Note ([CUSIP:             
        ]), or






	 	(b)	 	o a Restricted Definitive Note.






	2.	 	After the Transfer the Transferee shall hold:





[CHECK ONE]





	 	(a)	 	o a beneficial interest in the:






	 	(i)	 	o 144A Global Note ([CUSIP:              
      ]), or
	 
	 	(ii)	 	o Regulation S Global Note ([CUSIP:            
        ])or
	 
	 	(iii)	 	o Unrestricted Global Note ([              
      ] [                    ]);
or






	 	(b)	 	o a Restricted Definitive Note; or
	 
	 	(c)	 	o an Unrestricted Definitive Note, in accordance with the terms of the Indenture.



 


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EXHIBIT C




FORM OF CERTIFICATE OF EXCHANGE




Cambium Learning Group, Inc.

17855 North Dallas Parkway, Suite 400

Dallas, Texas 75287

Facsimile: 704-992-1451

Attention: General Counsel




Wells Fargo Bank, National Association

MAC N9311-110

625 Marquette Avenue

Minneapolis, MN 55479

Fax No.: 612-667-2160

Attention: Cambium Administrator





	 	Re: 	 	9.75% Senior Secured Notes due 2017





Reference is hereby made to the Senior Secured Notes Indenture, dated as of February 17, 2011
(the “Indenture”), among Cambium Learning Group, Inc. the Guarantors party thereto, and the
Trustee. Capitalized terms used but not defined herein shall have the meanings given to them in
the Indenture.



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



1) EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN A RESTRICTED GLOBAL NOTE
FOR UNRESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN AN UNRESTRICTED GLOBAL NOTE




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




b) 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.


 


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




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



2) EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES
FOR RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES




a) o CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE TO
RESTRICTED DEFINITIVE NOTE. In connection with the Exchange of the Owner’s beneficial
interest in a Restricted Global Note for a Restricted Definitive Note with an equal
principal amount, the Owner hereby certifies that the Restricted Definitive Note is being
acquired for the Owner’s own account without transfer. Upon consummation of the proposed
Exchange in accordance with the terms of the Indenture, the Restricted Definitive Note
issued shall continue to be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the Restricted Definitive Note and in the Indenture and
the Securities Act.




b) o CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE. In connection with the Exchange of the Owner’s Restricted
Definitive Note for a beneficial interest in the [CHECK ONE] o 144A Global Note o Regulation S
Global Note, with an equal principal amount, the Owner hereby certifies (i) the beneficial
interest is being acquired for the Owner’s own account without transfer and (ii) such
Exchange has been effected in compliance with the transfer restrictions applicable to the
Restricted Global Notes and pursuant to and in accordance with the Securities Act, and in
compliance with any applicable blue sky securities laws of any state of the United States.
Upon consummation of the proposed Exchange in accordance with the terms of the Indenture,
the beneficial interest issued shall 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 Issuer and are dated.



	 	 	 	 	 
	 	[Insert Name of Transferor]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 


 


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EXHIBIT D




[FORM OF SUPPLEMENTAL INDENTURE

TO BE DELIVERED BY SUBSEQUENT GUARANTORS]





Supplemental
Indenture (this “Supplemental Indenture”), dated as
of         , among           
(the “Guaranteeing Subsidiary”), a subsidiary of Cambium Learning Group, Inc., a
Delaware corporation (the “Issuer”), and Wells Fargo Bank, National Association, a national banking
association, as trustee (the “Trustee”).



WITNESSETH




WHEREAS, Cambium Learning Group, Inc. and the Guarantors party thereof (as defined in the
Indenture referred to below) has heretofore executed and delivered to the Trustee a Senior Secured
Notes Indenture (the “Indenture”), dated as of February 17, 2011, providing for the issuance of an
unlimited aggregate principal amount of 9.75% Senior Secured Notes due 2017;



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 Issuer’s Obligations under the
Notes and the Indenture on the terms and conditions set forth herein and under the Indenture (the
“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 parties mutually covenant and agree
for the equal and ratable benefit of the Holders as follows:



(1) Capitalized Terms. Capitalized terms used herein without definition shall have
the meanings assigned to them in the Indenture.



(2) Agreement to Guarantee. The Guaranteeing Subsidiary hereby agrees as follows:




(a) Along with all other Guarantors named in the Indenture (including pursuant to any
supplemental indentures), to jointly and severally unconditionally guarantee 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 the Indenture, the Notes or
the obligations of the Issuer hereunder or thereunder, that:




(i) the principal of and interest and premium, if any, on the Notes shall be
promptly paid in full when due, 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 Issuer to the Holders or the
Trustee thereunder shall be promptly paid in full, all in accordance with the terms
thereof; and




(ii) in case of any extension of time of payment or renewal of any Notes or any
of such other obligations, that same shall be promptly paid in full when due in
accordance with the terms of the extension or renewal, whether at stated maturity,
by acceleration or otherwise. Failing payment when due of any amount so guaranteed
for whatever reason, the Guarantors and the Guaranteeing Subsidiary shall be jointly
and severally obligated to pay the same immediately. This is a guarantee of payment
and not a guarantee of collection.


 


D-1









 






(b) The obligations hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of the Notes or the Indenture, the absence of any action to
enforce the same, any waiver or
consent by any Holder with respect to any provisions hereof or thereof, the recovery of
any judgment against the Issuer or any other Guarantor, any action to enforce the same or
any other circumstance which might otherwise constitute a legal or equitable discharge or
defense of a guarantor.




(c) The Guaranteeing Subsidiary hereby waives: diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or bankruptcy of the
Issuer, any right to require a proceeding first against the Issuer, protest, notice and all
demands whatsoever.




(d) Except as provided in the Indenture and herein, the Guarantee shall not be
discharged except by full payment of the obligations contained in the Notes, the Indenture
and this Supplemental Indenture. The Guaranteeing Subsidiary accepts all obligations
applicable to a Guarantor under the Indenture, including Article 10 of the Indenture (which
is deemed incorporated in this Supplemental Indenture and applicable to this Guarantee).
The Guaranteeing Subsidiary acknowledges that by executing this Supplemental Indenture, it
shall become a Guarantor under the Indenture and subject to all the terms and conditions
applicable to Guarantors contained therein.




(e) If any Holder or the Trustee is required by any court or otherwise to return to the
Issuer, the Guarantors (including the Guaranteeing Subsidiary), or any custodian, trustee,
liquidator or other similar official acting in relation to either the Issuer or the
Guarantors, any amount paid either to the Trustee or such Holder, this Guarantee, to the
extent theretofore discharged, shall be reinstated in full force and effect.




(f) The Guaranteeing Subsidiary shall 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.




(g) As between the Guaranteeing Subsidiary, on the one hand, and the Holders and the
Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be
accelerated as provided in Article 6 of the Indenture for the purposes of this Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such acceleration in
respect of the obligations guaranteed hereby, and (y) in the event of any declaration of
acceleration of such obligations as provided in Article 6 of the Indenture, such obligations
(whether or not due and payable) shall forthwith become due and payable by the Guaranteeing
Subsidiary for the purpose of this Guarantee.




(h) The Guaranteeing Subsidiary shall have the right to seek contribution from any
non-paying Guarantor so long as the exercise of such right does not impair the rights of the
Holders under this Guarantee.




(i) Pursuant to Section 10.02 of the Indenture, after giving effect to all other
contingent and fixed liabilities that are relevant under any applicable Bankruptcy or
fraudulent conveyance laws, or similar limitation, 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 Article 10
of the Indenture, this new Guarantee shall be limited to the maximum amount permissible such
that the obligations of such Guarantor under this Guarantee shall not constitute a
fraudulent transfer or conveyance, or similar limitation.




(j) This Guarantee shall remain in full force and effect and continue to be effective
should any petition be filed by or against the Issuer for liquidation, reorganization,
should the Issuer become insolvent or make an assignment for the benefit of creditors or
should a receiver or trustee be appointed for all or any significant part of the Issuer’s
assets, and shall, to the fullest extent permitted by law, continue to be effective or be
reinstated, as the case may be, if at any time payment and performance of the Notes are,
pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or
returned by any obligee on the Notes and Guarantee, whether as a “voidable preference,”
“fraudulent transfer” or otherwise, all as though such payment or performance had not been
made. In the event that any payment or any part
thereof, is rescinded, reduced, restored or returned, the Note shall, to the fullest
extent permitted by law, be reinstated and deemed reduced only by such amount paid and not
so rescinded, reduced, restored or returned.


 


D-2









 






(k) In case any provision of this Guarantee shall be invalid, illegal or unenforceable,
the validity, legality, and enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.




(l) This Guarantee shall be a general secured senior obligation of such Guaranteeing
Subsidiary, ranking equally in right of payment with all existing and future Senior
Indebtedness of the Guaranteeing Subsidiary, if any.




(m) Each payment to be made by the Guaranteeing Subsidiary in respect of this Guarantee
shall be made without set-off, counterclaim, reduction or diminution of any kind or nature.



(3) Execution and Delivery. The Guaranteeing Subsidiary agrees that the Guarantee
shall remain in full force and effect notwithstanding the absence of the endorsement of any
notation of such Guarantee on the Notes.



(4) Merger, Consolidation or Sale of All or Substantially All Assets.



(a) Except as otherwise provided in the Indenture, the Guaranteeing Subsidiary shall not
consolidate, amalgamate or merge with or into or wind up into (whether or not such Guaranteeing
Subsidiary is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose
of all or substantially all of its properties or assets, in one or more related transactions, to
any Person unless:




(i) (A) such Guaranteeing Subsidiary is the surviving Person or the Person formed by or
surviving any such consolidation, amalgamation or merger (if other than such Guaranteeing
Subsidiary) or to which such sale, assignment, transfer, lease, conveyance or other
disposition shall have been made is a Person organized or existing under the laws of the
jurisdiction of organization of such Guaranteeing Subsidiary, as applicable, or the laws of
the United States, any state thereof, the District of Columbia, or any territory thereof
(such surviving Guaranteeing Subsidiary or such Person, as the case may be, being herein
called the “Successor Person”);




(B) the Successor Person, if other than such Guaranteeing Subsidiary, expressly assumes
all the obligations of such Guaranteeing Subsidiary under the Indenture, the Collateral
Documents and such Guaranteeing Subsidiary’s related Guarantee pursuant to supplemental
indentures or other documents or instruments;




(C) immediately after such transaction, no Default exists; and




(D) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an
Opinion of Counsel, each stating that such consolidation, merger, amalgamation or transfer
and such supplemental indentures, if any, comply with the Indenture; or




(ii) the transaction is made in compliance with Section 4.10 of the Indenture.



(b) Subject to certain limitations described in the Indenture, the Successor Person shall
succeed to, and be substituted for, such Guaranteeing Subsidiary under the Indenture and the
Guaranteeing Subsidiary’s Guarantee. Notwithstanding the foregoing, such Guaranteeing Subsidiary
may merge or consolidate with or into, wind up into or transfer all or part of its properties and
assets to another Guaranteeing Subsidiary or the Issuer.



(5) Releases. The Guarantee of the Guaranteeing Subsidiary shall be automatically and
unconditionally released and discharged, and no further action by the Guaranteeing Subsidiary, the
Issuer or the Trustee is required for the release of the Guaranteeing Subsidiary’s Guarantee, upon:


 


D-3









 






(a) (i) any sale, exchange, disposition or transfer (by merger, amalgamation,
consolidation or otherwise) of (i) the Capital Stock of such Guaranteeing Subsidiary, after
which the applicable Guaranteeing Subsidiary is no longer a Restricted Subsidiary or (ii)
all or substantially all the assets of such Guaranteeing Subsidiary, in each case if such
sale, exchange, disposition or transfer is made in compliance with the applicable provisions
of this Indenture;




(ii) in the case of a Restricted Subsidiary which after the Issue Date is required to
become a Guarantor, the release or discharge of the guarantee by such Guaranteeing
Subsidiary of the guarantee that resulted in the creation of such Guarantee, except a
discharge or release by or as a result of payment under such guarantee (it being understood
that a release subject to a contingent reinstatement is still a release, and that if any
such Guarantee is so reinstated, such Guarantee shall also be reinstated to the extent that
such Guaranteeing Subsidiary would then be required to provide a Guarantee pursuant to
Section 4.15 in the Indenture);




(iii) the designation of any Restricted Subsidiary that is a Guaranteeing Subsidiary as
an Unrestricted Subsidiary in compliance with the applicable provisions of the Indenture; or




(iv) the exercise by the Issuer of its Legal Defeasance option or Covenant Defeasance
option in accordance with Article 8 of the Indenture or the satisfaction and discharge of
the Issuer’s obligations under this Indenture in accordance with the terms of the Indenture;
and




(b) such Guaranteeing Subsidiary delivering to the Trustee an Officer’s Certificate and
an Opinion of Counsel, each stating that all conditions precedent provided for in this
Indenture relating to such transaction have been complied with.



(6) No Recourse Against Others. No past, present or future director, officer,
employee, incorporator, member, partner or stockholder of the Guaranteeing Subsidiary (other than
the Issuer and the Guarantors) shall have any liability for any obligations of the Issuer or the
Guarantors (including the Guaranteeing Subsidiary) under the Notes, any Guarantees, the Indenture
or this Supplemental Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder by accepting Notes waives and releases all such
liability. The waiver and release are part of the consideration for issuance of the Notes.



(7) Governing Law. THIS SUPPLEMENTAL INDENTURE WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.



(8) 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.



(9) Effect of Headings. The Section headings herein are for convenience only and
shall not affect the construction hereof.



(10) 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.



(11) Subrogation. The Guaranteeing Subsidiary shall be subrogated to all rights of
Holders against the Issuer in respect of any amounts paid by the Guaranteeing Subsidiary pursuant
to the provisions of Section 2 hereof and Section 10.01 of the Indenture; provided that, if an
Event of Default has occurred and is continuing, the Guaranteeing Subsidiary shall not be entitled
to enforce or receive any payments arising out of, or based upon, such right of
subrogation until all amounts then due and payable by the Issuer under the Indenture or the
Notes shall have been paid in full.



(12) Benefits Acknowledged. The Guaranteeing Subsidiary’s Guarantee is subject to the
terms and conditions set forth in the Indenture. The Guaranteeing Subsidiary acknowledges that it
shall receive direct and indirect benefits from the financing arrangements contemplated by the
Indenture and this Supplemental Indenture and that the guarantee and waivers made by it pursuant to
this Guarantee are knowingly made in contemplation of such benefits.


 


D-4









 





(13) Successors. All agreements of the Guaranteeing Subsidiary in this Supplemental
Indenture shall bind its Successors, except as otherwise provided in this Supplemental Indenture.
All agreements of the Trustee in this Supplemental Indenture shall bind its successors.



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



	 	 	 	 	 
	 	[GUARANTEEING SUBSIDIARY]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



 


D-5