8% Senior Secured Third Lien Convertible Notes due 2016

 

TABLE OF CONTENTS

 

	Page
Article 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01 . Scope of Supplemental Indenture	2
Section 1.02 . Definitions	2
Section 1.03 . Incorporation by Reference of Trust Indenture Act	31
Section 1.04 . Rules of Construction	31
Article 2
CO-ISSUERS
Section 2.01 . Addition of Co-Issuer; Waiver of Parent Guarantee	31
Article 3
THE NOTES
Section 3.01 . Designation, Amount and Issuance of Notes	31
Section 3.02 . Form of the Notes and Transfers	32
Section 3.03. Date and Denomination of Notes; Payment at Maturity; Payment of Interest	33
Section 3.04 . Outstanding Notes	35
Article 4
REPURCHASE OF NOTES
Section 4.01 . Repurchase at Option of the Holder upon a Fundamental Change	36
Section 4.02 . Notes Repurchased in Part	38
Section 4.03 . Covenant to Comply with Securities Laws Upon Repurchase of Notes	38
Article 5
COVENANTS
Section 5.01 . Replacement of Covenants in Base Indenture; Payment of Accreted Principal Amount	39
Section 5.02 . Maintenance of Office or Agency	39
Section 5.03 . Money For Notes Payments to be Held in Trust	39
Section 5.04 . Corporate Existence	40
Section 5.05 . Payment of Taxes and Other Claims	40
Section 5.06 . Maintenance of Properties	41
Section 5.07. Insurance	41
Section 5.08 . Statement by Officers as to Default	42
Section 5.09 . Reports and other Information	42
Section 5.10. Limitation on Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock	43

 

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Section 5.11. Limitation On Liens	48
Section 5.12. Limitations on Transactions with Affiliates	49
Section 5.13. Limitations on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries	50
Section 5.14. Limitation on Guarantees of Indebtedness by Restricted Subsidiaries	52
Section 5.15 . Waiver of Certain Covenants	53
Section 5.16. Further Assurances and After-Acquired Property	53
Section 5.17. Information Regarding Collateral	54
Section 5.18 . Impairment of Security Interest	54
Article 6
DEFAULTS AND REMEDIES
Section 6.01 . Replacement of Remedies in Base Indenture; Events of Default	54
Section 6.02 . Acceleration of Maturity; Rescission and Annulment	57
Section 6.03. Collection of Indebtedness and Suits For Enforcement by Trustee	58
Section 6.04 . Trustee May File Proofs of Claim	58
Section 6.05 . Trustee May Enforce Claims Without Possession of Notes	59
Section 6.06 . Application of Money Collected	59
Section 6.07 . Limitation On Suits	59
Section 6.08 . Unconditional Right of Holders To Receive Accreted Principal Amount	60
Section 6.09 . Restoration of Rights and Remedies	60
Section 6.10 . Rights and Remedies Cumulative	60
Section 6.11 . Delay Or Omission Not Waiver	60
Section 6.12 . Control By Holders	61
Section 6.13 . Waiver of Past Defaults	61
Section 6.14 . Waiver of Stay Or Extension Laws	61
Article 7
DISCHARGE
Section 7.01 . Replacement of Discharge Provisions in Base Indenture; Satisfaction and Discharge of Indenture	62
Section 7.02 . Application of Trust Money	63
Section 7.03 . Reinstatement	63
Article 8
MERGER, CONSOLIDATION OR SALE OF ALL OR SUBSTANTIALLY ALL ASSETS
Section 8.01 . Replacement of Merger Provisions in Base Indenture; Co-Issuers May Consolidate, Etc., Only On Certain Terms	63
Section 8.02 . Guarantors May Consolidate, Etc., Only On Certain Terms	65
Section 8.03 . Successor Substituted	66

 

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Article 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 . Replacement of Supplement Provisions in Base Indenture; Amendments Or Supplements Without Consent of Holders	66
Section 9.02 . Amendments, Supplements Or Waivers With Consent of Holders	67
Section 9.03 . Execution of Amendments, Supplements Or Waivers	68
Section 9.04 . Effect of Amendments, Supplements Or Waivers	69
Section 9.05 . Conformity With Trust Indenture Act	69
Section 9.06 . Reference In Notes To Supplemental Indentures	69
Section 9.07 . Notice of Supplemental Indentures	69
Article 10
CONVERSION OF NOTES
Section 10.01 . Right To Convert	69
Section 10.02 . Right To Terminate Conversion Rights	70
Section 10.03 . Limitations on Beneficial Ownership	70
Section 10.04 . Conversion Procedures; No Adjustment For Interest Or Dividends; Cash Payments In Lieu of Fractional Shares	71
Section 10.05 . Decreased Conversion Price Applicable To Securities Converted In Connection With Make-Whole Events	72
Section 10.06 . Adjustment of Conversion Price	74
Section 10.07 . Effect of Reclassification, Consolidation, Merger Or Sale	80
Section 10.08 . Certain Covenants	81
Section 10.09 . Notice To Holders Prior To Certain Actions	81
Section 10.10 . Stockholder Rights Plans	82
Section 10.11 . Responsibility of Trustee	82
Article 11
GUARANTEES
Section 11.01 . Guarantees	83
Section 11.02 . Severability	85
Section 11.03 . Restricted Subsidiaries	85
Section 11.04 . Limitation of Guarantors’ Liability	85
Section 11.05 . Contribution	85
Section 11.06 . Subrogation	86
Section 11.07 . Reinstatement	86
Section 11.08 . Release of A Guarantor	86
Section 11.09 . Benefits Acknowledged	86
Article 12
SECURITY
Section 12.01 . Collateral and Security Documents	86
Section 12.02 . Recordings and Opinions	87

 

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Section 12.03 . Release of Collateral			88
Section 12.04 . Certificates of The Trustee			89
Section 12.05 . Suits To Protect The Collateral			89
Section 12.06 . Authorization of Receipt of Funds By The Trustee Under The Security Documents			90
Section 12.07 . Purchase Protected			90
Section 12.08 . Powers Exercisable By Receiver Or Trustee			90
Section 12.09 . Release Upon Termination of The Co-Issuers’ Obligations			90
Section 12.10 . Collateral Agent			91
Section 12.11 . Designations			95
Section 12.12 . Compensation and Indemnification			95
Section 12.13 . Intercreditor Agreement, Security Agreement, Pledge Agreement and Other Security Documents			96
Article 13
RANKING OF NOTE LIENS
Section 13.01 . Relative Rights			96
Article 14
INAPPLICABLE PROVISIONS OF THE BASE INDENTURE
Section 14.01 . Redemption of Securities			97
Section 14.02 . Sinking Funds			97
Article 15
MISCELLANEOUS
Section 15.01 . Trust Indenture Act Controls			97
Section 15.02 . Communication By Holders With Other Holders			97
Section 15.03 . Rules By Trustee, Paying Agent and Security Registrar			98
Section 15.04 . GOVERNING LAW			98
Section 15.05 . No Recourse Against Others			98
Section 15.06 . Multiple Originals			98
Section 15.07 . Severability Clause			98
Section 15.08 . Calculations			98
Section 15.09 . Recitals			98
Section 15.10 . Ratification of Base Indenture			98
EXHIBITS
Exhibit A	-	Form of Note	A-1
Exhibit B	-	Form of Conversion Notice	B-1
Exhibit C	-	Form of Fundamental Change Repurchase Notice	C-1
Exhibit D	-	Form of Assignment	D-1

 

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SUPPLEMENTAL INDENTURE, dated as of July 10, 2009 by and between SEALY MATTRESS COMPANY, an Ohio corporation (the “ Company ”), SEALY CORPORATION, a Delaware corporation (“ Parent ” and, together with the Company, the “ Co-Issuers ”), SEALY MATTRESS CORPORATION, a Delaware corporation (“ Holdings ”), and certain of the Company’s direct and indirect wholly-owned Domestic Subsidiaries, each named in the signature pages hereto (each, a “ Subsidiary Guarantor ” and, together with Holdings, collectively, the “ Guarantors ”) and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a national banking association, as trustee (in such capacity, the “ Trustee ”) and as collateral agent (in such capacity, the “ Collateral Agent ”) to the indenture dated as of July 10, 2009 among the Company, the Guarantors (as defined therein) and the Trustee (as amended and supplemented from time to time in accordance with the terms thereof, the “ Base Indenture ”).

 

RECITALS OF THE COMPANY

 

WHEREAS, the Company executed and delivered the Base Indenture to the Trustee to provide, among other things, for the future issuance of the Company’s Securities from time to time in one or more series as might be determined by the Company under the Base Indenture, in an unlimited aggregate principal amount which may be authenticated and delivered as provided in the Base Indenture;

 

WHEREAS, Section 301 of the Base Indenture provides for the Company to establish Securities of any series pursuant to a supplemental indenture, and Section 901(d) of the Base Indenture provides for the Company and the Trustee to enter into such supplemental indenture to establish the form or terms of Securities of such series as permitted by Sections 201 and 301 of the Base Indenture without the consent of any Holders;

 

WHEREAS, the Board of Directors of each Co-Issuer has duly adopted resolutions authorizing the Co-Issuers to execute and deliver this Supplemental Indenture;

 

WHEREAS, pursuant to the terms of the Base Indenture, the Co-Issuers desire to provide for the establishment of a new series of their Securities to be known as “8% Senior Secured Third Lien Convertible Notes due 2016” (the “ Notes ”), the form and substance of the Notes and the terms, provisions and conditions thereof to be set forth as provided in the Base Indenture and this Supplemental Indenture;

 

WHEREAS, the Form of Note, the certificate of authentication to be borne by each Note, the Form of Conversion Notice, the Form of Fundamental Change Repurchase Notice and the Form of Assignment to be borne by the Notes are to be substantially in the forms hereinafter provided for; and

 

WHEREAS, the Co-Issuers have requested that the Trustee execute and deliver this Supplemental Indenture, and all requirements necessary to make (i) this Supplemental Indenture a valid and legally binding instrument in accordance with its terms and (ii) the Notes, when executed by the Co-Issuers and authenticated and delivered by the Trustee, the valid and legally binding obligations of the Co-Issuers, have been performed, and the execution and delivery of this Supplemental Indenture have been duly authorized in all respects.

 

 

NOW, THEREFORE, in consideration of the premises and covenants and agreements contained herein, and for other good and valuable consideration the receipt of which is hereby acknowledged, and for the benefit of the Holders of the Notes, the Co-Issuers, Holdings and the Subsidiary Guarantors and the Trustee and Collateral Agent hereby agree as follows:

 

ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION

 

Section 1.01 .  Scope of Supplemental Indenture.  The changes, modifications and supplements to the Base Indenture effected by this Supplemental Indenture shall be applicable only with respect to, and shall only govern the terms of, the Notes and shall not apply to any other Securities that may be issued under the Base Indenture unless a supplemental indenture with respect to such other Securities specifically incorporates such changes, modifications and supplements.  The provisions of this Supplemental Indenture shall supersede any corresponding provisions in the Base Indenture.

 

Section 1.02 .  Definitions.  For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:

 

(i)                                      the terms defined in this Article 1 shall have the meanings assigned to them in this Article and include the plural as well as the singular;

 

(ii)                                   all words, terms and phrases defined in the Base Indenture (but not otherwise defined herein) shall have the same meanings as in the Base Indenture;

 

(iii)                                all other terms used herein that are defined in the Trust Indenture Act, either directly or by reference therein, shall have the meanings assigned to them in the Trust Indenture Act;

 

(iv)                               all accounting terms not otherwise defined herein shall have the meanings assigned to them in accordance with generally accepted accounting principles, and, except as otherwise herein expressly provided, the term “generally accepted accounting principles” with respect to any computation required or permitted hereunder shall mean such accounting principles as are generally accepted at the date of this instrument; and

 

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

 

“ ABL Asset Sale Offer ” has the meaning set forth in Section 1018 of the First Lien Notes Indenture.

 

“ ABL Collateral ” has the meaning assigned to the term “ABL Priority Collateral” in the Intercreditor Agreement.

 

“ ABL Secured Parties ” has the meaning assigned to the term “ABL Claimholders” in the Intercreditor Agreement.

 

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“ Accreted Principal Amount ” per Note means, as of any Interest Payment Date, the Initial Principal Amount of such Note increased by the sum of the Accretion Amounts for all prior Interest Payment Dates.

 

“ Accretion Amount ” means, as of any Interest Payment Date, the interest on the Accreted Principal Amount, as increased as of the immediately preceding Interest Payment Date, (or if there is no immediately preceding Interest Payment Date, interest on the Initial Principal Amount) (which interest shall be at the rate set forth in Section 3.03) accrued from and including such immediately preceding Interest Payment Date (or if there is no immediately preceding Interest Payment Date, from and including the Issue Date) to but excluding such Interest Payment Date.

 

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

 

(1)                                   Indebtedness of any other Person existing at the time such other Person is merged with or into or became a Restricted Subsidiary of such specified Person, including, without limitation, Indebtedness incurred in connection with, or in contemplation of, such other Person merging with or into or becoming a Restricted Subsidiary of such specified Person, and

 

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

 

“ Additional First Lien Notes ” means any additional first lien notes (other than the First Lien Notes) issued after the original issuance of the First Lien Notes that are substantially similar to the First Lien Notes and are secured by any of the Collateral with Pari Passu Lien Priority relative to the First Lien Notes and with respect to which the holders (or a trustee or agent on behalf of such holders) shall have executed a supplement to the Intercreditor Agreement agreeing to be bound thereby on the same terms applicable to the holders of First Lien Notes.

 

“ Additional Notes ” means any additional third lien notes (other than the Notes) issued after the original issuance of the Notes that are substantially similar to the Notes and are secured by any of the Collateral with Pari Passu Lien Priority relative to the Notes and with respect to which the holders (or a trustee or agent on behalf of such holders) shall have executed a supplement to the Intercreditor Agreement agreeing to be bound thereby on the same terms applicable to the holders of Notes.

 

“ Additional Shares ” has the meaning specified in Section 10.05.

 

“ Adjusted Net Assets ” has the meaning specified in Section 11.05.

 

“ Adjustment Event ” has the meaning specified in Section 10.06(k).

 

“ Affiliate Transaction ” has the meaning specified in Section 5.12(a).

 

“ After Acquired Property ” means any property of the Co-Issuers or any Guarantor acquired after the Issue Date that is intended to secure the Obligations under this Indenture and the Notes pursuant to this Indenture and the Security Documents.

 

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

 

“ Agent Members ” has the meaning specified in Section 3.03(d)(v).

 

“ Applicable Price ” has the meaning specified in Section 10.05.

 

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

 

“ Asset Sale Offer ” has the meaning specified in Section 1018 of the First Lien Notes Indenture.

 

“ Bank Collateral Agent ” means JPMorgan Chase Bank, N.A., in its capacity as collateral agent under the Credit Agreement, and any successor thereto in such capacity.

 

“ Bank Lenders ” means the lenders or holders of Indebtedness issued under the Credit Agreement.

 

“ Base Indenture ” has the meaning specified in the Preamble.

 

“ Board of Directors ” means, with respect to any Person, either the board of directors of such Person or any duly authorized committee of such board.

 

“ Board Resolution ” means, with respect to any Person, a copy of a resolution certified by the Secretary or an Assistant Secretary of such Person to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and, if required by this Indenture, delivered to the Trustee.

 

“ Borrowing Base ” means, as of any date, an amount equal to the sum of (x) 85% of the book value of the accounts receivable and (y) 65% of the book value of the inventory, in each case of the Company, Parent and the Guarantors on a consolidated basis as of the end of the most recently completed fiscal quarter preceding such date for which internal financial statements are available.

 

“ Business Day ” means, solely for purposes of this Indenture and notwithstanding the definition thereof in Section 101 of the Base Indenture, each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in The City of New York are authorized or obligated by law, regulation or executive order to close.

 

“ Capital Stock ” means:

 

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

 

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

 

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

 

(4)                                   any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person.

 

“ 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) in accordance with GAAP.

 

“ Cash Equivalents ” means:

 

(1)                                   United States dollars,

 

(2)                                   pounds sterling,

 

(3)                                   (a) euro, or any national currency of any participating member state in the European Union or (b) in the case of any Foreign Subsidiary that is a Restricted Subsidiary, such local currencies held by them from time to time in the ordinary course of business,

 

(4)                                   securities issued or directly and fully and unconditionally guaranteed or insured by the United States 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 24 months or less from the date of acquisition,

 

(5)                                   certificates of deposit, time deposits and eurodollar time deposits with maturities of one year or less from the date of acquisition, bankers’ acceptances with maturities not exceeding one year and overnight bank deposits, in each case with any commercial bank having capital and surplus in excess of $500.0 million,

 

(6)                                   repurchase obligations for underlying securities of the types described in clauses (4) and (5) above, entered into with any financial institution meeting the qualifications specified in clause (5) above,

 

(7)                                   commercial paper rated at least P-2 by Moody’s or at least A-2 by S&P and in each case maturing within 12 months after the date of creation thereof,

 

(8)                                   investment funds investing 95% of their assets in securities of the types described in clauses (1) through (7) above,

 

(9)                                   readily marketable direct obligations issued by any state of the United States of America or any political subdivision thereof having one of the two highest rating categories obtainable from either Moody’s or S&P with maturities of 24 months or less from the date of acquisition, and

 

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(10)                             Indebtedness or preferred stock issued by Persons with a rating of “A” or higher from S&P or “A2” or higher from Moody’s with maturities of 12 months or less from the date of acquisition.

 

Notwithstanding the foregoing, Cash Equivalents shall include amounts denominated in currencies other than those set forth in clauses (1) through (3) above; provided that such amounts are converted into any currency listed in clauses (1) through (3) above as promptly as practicable and in any event within ten Business Days following the receipt of such amounts.

 

“ Co-Issuer Request ” and “ Co-Issuer Order ” mean, respectively, a written request or order, as the case may be, signed in the name of Parent or the Company, as applicable, by the Chairman, the Chief Executive Officer, the President, the Chief Financial Officer or a Vice President and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of Parent or the Company, as applicable, and delivered to the Trustee.

 

“ close of business ” means 5:00 p.m. (New York City time).

 

“ Closing Sale Price ” of Common Stock on any date means the closing sale price per share (or if no closing sale price is reported, the average of the bid and ask prices or, if more than one in either case, the average of the average bid and the average ask prices) on that date as reported in composite transactions for the principal U.S. securities exchange on which Common Stock is traded.  If Common Stock is not listed for trading on a U.S. national or regional securities exchange on the relevant date, the “Closing Sale Price” will be the last quoted bid price for Common Stock in the over-the-counter market on the relevant date as reported by Pink Sheets LLC or similar organization.  If Common Stock is not so quoted, the “Closing Sale Price” will be the average of the mid-point of the last bid and ask prices for Common Stock on the relevant date from each of at least three nationally recognized independent investment banking firms selected by us for this purpose.

 

“ Collateral ” means all the assets and properties subject to the Liens created by the Security Documents.

 

“ Collateral Agent ” means The Bank of New York Mellon Trust Company, N.A., in its capacity as “Collateral Agent” under this Indenture and under the Security Documents, and any successor thereto in such capacity.

 

“ Common Equity ” of any Person means Capital Stock of such Person that is generally entitled to (i) vote in the election of directors of such Person or (ii) if such Person is not a corporation, vote or otherwise participate in the selection of the governing body, partners, managers or others that will control the management or policies of such Person.

 

“ Common Stock ” means the shares of common stock, par value $0.01 per share, of Parent or such other Capital Stock into which Parent’s common stock is reclassified or changed.

 

“ Company ” has the meaning set forth in the Preamble.

 

“ consolidated ” or “ Consolidated ” means, with respect to any Person, such Person consolidated with its Restricted Subsidiaries, and shall not include any Unrestricted Subsidiary.

 

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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, including the amortization of deferred financing fees, 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, the sum, without duplication, of:

 

(a)                                   consolidated interest expense of such Person and its Restricted Subsidiaries for such period, to the extent such expense was deducted in computing Consolidated Net Income (including amortization of original issue discount resulting from the issuance of Indebtedness at less than par, non-cash interest payments (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 Financial Accounting Standards Board Statement No.133 “Accounting for Derivative Instruments and Hedging Activities”), the interest component of Capitalized Lease Obligations and net payments, if any, pursuant to interest rate Hedging Obligations, and excluding amortization of deferred financing fees and any expensing of bridge or other financing fees), and

 

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

 

(c)                                   interest income for such period.

 

“ 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 , however , that

 

(1) any net after-tax extraordinary, non-recurring or unusual gains or losses (less all fees and expenses relating thereto) or expenses (including, without limitation, relating to severance, relocation and new product introductions) shall be excluded,

 

(2) the Net Income for such period shall not include the cumulative effect of a change in accounting principles during such period,

 

(3) any net after-tax income (loss) from disposed or discontinued operations and any net after-tax gains or losses on disposal of disposed or discontinued operations shall be excluded,

 

(4) any net after-tax gains or losses (less all fees and expenses relating thereto) attributable to asset dispositions other than in the ordinary course of business, as determined in good faith by the Board of Directors of the Company, shall be excluded,

 

(5) the Net Income for such period of any Person that is not a Subsidiary, or is an Unrestricted Subsidiary, or that is accounted for by the equity method of accounting, shall be excluded; provided that Consolidated Net Income of the Company shall be increased by the amount of dividends or distributions or other payments that are actually paid in cash (or to the

 

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extent converted into cash) to the referent Person or a Restricted Subsidiary thereof in respect of such period,

 

(6) solely for the purpose of determining the amount available for Restricted Payments under Section 1010(a)(4)(C) of the First Lien Notes Indenture, the Net Income for such period of any Restricted Subsidiary (other than any Guarantor) shall be excluded if the declaration or payment of dividends or similar distributions by that Restricted Subsidiary of its Net Income is not at the date of determination wholly permitted 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 such Restricted Subsidiary or its stockholders, unless such restriction with respect to the payment of dividends or in similar distributions has been legally waived; provided that Consolidated Net Income of the Company 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 Company or a Restricted Subsidiary thereof in respect of such period, to the extent not already included therein,

 

(7) the effects of adjustments resulting from the application of purchase accounting in relation to any acquisition that is consummated after the Issue Date, net of taxes, shall be excluded,

 

(8) any net after-tax income (loss) from the early extinguishment of Indebtedness or Hedging Obligations or other derivative instruments shall be excluded,

 

(9) any impairment charge or asset write-off pursuant to Financial Accounting Standards Board Statement No. 142 and No. 144 and the amortization of intangibles arising pursuant to No. 141 shall be excluded, and

 

(10) any non-cash compensation expense recorded from grants of stock appreciation or similar rights, stock options or other rights to officers, directors or employees shall be excluded.

 

“ Consolidated Senior Secured Debt Ratio ” means, as of any date of determination, the ratio of (1) the sum of Lenders Debt plus the aggregate amount outstanding under any Receivables Facility plus the aggregate principal amount of the First Lien Notes plus the aggregate principal amount (or accreted value) of any Other First Lien Note Obligations to (2) the Company’s EBITDA for the most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such event for which such calculation is being made shall occur, in each case with such pro forma adjustments as are appropriate and consistent with the pro forma adjustment provisions set forth in the definition of Fixed Charge Coverage Ratio.

 

“ 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,

 

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(1)                                   to purchase any such primary obligation or any property constituting direct or indirect security therefor,

 

(2)                                   to advance or supply funds:

 

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

 

(B)                                 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

 

(3)                                   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.

 

“ Conversion Agent ” means the agency appointed by the Co-Issuers to which Notes may be presented for conversion.  The Conversion Agent appointed by the Co-Issuers shall initially be the Trustee.

 

“ Conversion Date ” has the meaning specified in Section 10.04(a).

 

“ Conversion Notice ” has the meaning specified in Section 10.04(a).

 

“ Conversion Obligation ” has the meaning specified in Section 10.01.

 

“ Conversion Price ” has the meaning specified in Section 10.01.

 

“ Conversion Rights Termination Date ” has the meaning specified in Section 10.02(a).

 

“ Credit Agreement ” means the Credit Agreement dated as of May 13, 2009 among the Company, the guarantor parties thereto, the various lenders and agents party thereto and J.P. Morgan Chase Bank, N.A. as administrative agent, together with any amendments, supplements, modifications, extensions, renewals, restatements or refundings thereof and any indentures or credit facilities or commercial paper facilities with banks or other institutional lenders or investors 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 borrowable thereunder, alters the maturity thereof or adds Restricted Subsidiaries as additional borrowers or guarantors thereunder and whether by the same or any other agent, lender or group of lenders.

 

“ Credit Facilities ” means, with respect to the Company, one or more debt facilities, including, without limitation, the Credit Agreement or commercial paper facilities with banks or other institutional lenders or investors or indentures providing for revolving credit loans, term loans, receivables financing, including through the sale of receivables to such lenders or to special purpose entities formed to borrow from such lenders against receivables, letters of credit or other long-term indebtedness, including any 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 with banks or other institutional lenders or investors that replace,

 

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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 borrowable thereunder or alters the maturity thereof.

 

“ Current Market Price ” of Common Stock on any day means the average of the Closing Sale Price of Common Stock for each of the 10 consecutive Trading Days ending on the Trading Day before the ex-dividend date with respect to the issuance or distribution requiring such computation.

 

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

 

“ Dealer Manager Agreement ” means the dealer manager agreement dated May 27, 2009 among the Co-Issuers, the Guarantors and Citigroup Global Markets Inc. relating to the rights offering for 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, substantially in the form of Exhibit A hereto except that such Note shall not bear the Global Note Legend and shall not have the “Schedule of Exchanges of Interests in the Global Note” attached thereto, issued in accordance with Section 201 of the Base Indenture.

 

“ Depositary ” has the meaning set forth in the Base Indenture, and shall initially mean DTC until a successor shall have been appointed and become such pursuant to the applicable provisions of this Indenture, and thereafter, “ Depositary ” shall mean such successor.

 

“ Designated Preferred Stock ” means preferred stock of the Company or any parent thereof (in each case other than Disqualified Stock) that is issued for cash (other than to Parent, a Guarantor or a Restricted Subsidiary) and is so designated as Designated Preferred Stock, pursuant to an Officers’ Certificate executed by an executive vice president and the principal financial officer of the Company or the applicable parent thereof, as the case may be, on the issuance date thereof, the cash proceeds of which are excluded from the calculation set forth in Section 1010(a)(4)(C) of the First Lien Notes Indenture.

 

“ Determination Date ” has the meaning specified in Section 10.06(k).

 

“ Discharge of ABL Obligations ” means the date on which the Lenders Debt has been paid in full, in cash, all commitments to extend credit thereunder shall have been terminated and the Lenders Debt is no longer secured by the ABL Collateral; provided that the Discharge of ABL Obligations shall not be deemed to have occurred in connection with a refinancing of such Lenders Debt with Indebtedness secured by such ABL Collateral on a first-priority basis under an agreement that has been designated in writing by the administrative agent under the Credit Facility so refinancing the Credit Agreement and the First Lien Notes Trustee to be in accordance with the terms of the Intercreditor Agreement.

 

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“ Discharge of First Lien Note Obligations ” means the date on which the First Lien Note Obligations have been paid in full and are no longer secured by the Notes Collateral; provided that the Discharge of First Lien Note Obligations shall not be deemed to have occurred in connection with a refinancing of such First Lien Notes with Indebtedness secured by such Notes Collateral on a first-priority basis under an agreement so refinancing the First Lien Notes that has been designated in writing by the administrative agent under the Credit Facility and the First Lien Notes Trustee to be in accordance with the terms of the Intercreditor Agreement.

 

“ 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 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 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 or the date the Notes are no longer outstanding; provided , however , that if such Capital Stock is issued to any plan for the benefit of employees of the Company or its Subsidiaries or by any such plan to such employees, such Capital Stock shall not constitute Disqualified Stock solely because it may be required to be repurchased by the Company or its Subsidiaries in order to satisfy applicable statutory or regulatory obligations.

 

“ Domestic Subsidiary ” means, with respect to any Person, any direct or indirect wholly-owned Restricted Subsidiary of such Person other than a Foreign Subsidiary.

 

“ DTC ” means The Depository Trust Company.

 

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

 

(a) provision for taxes based on income or profits, plus franchise or similar taxes, of such Person for such period deducted in computing Consolidated Net Income, plus

 

(b) Consolidated Interest Expense of such Person for such period to the extent the same was deducted in calculating such Consolidated Net Income, plus

 

(c) Consolidated Depreciation and Amortization Expense of such Person for such period to the extent such depreciation and amortization were deducted in computing Consolidated Net Income, plus

 

(d) any expenses or charges related to any Equity Offering, Permitted Investment, acquisition, disposition, recapitalization or Indebtedness permitted to be incurred by this Indenture (whether or not successful), including such fees, expenses or charges related to the offering of the First Lien Notes, the Notes and the Credit Facilities, and deducted in computing Consolidated Net Income, plus

 

(e) the amount of any restructuring charge deducted in such period in computing Consolidated Net Income, including any one-time costs incurred in connection with acquisitions after the Issue Date, plus

 

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(f) any other non-cash charges reducing Consolidated Net Income for such period, excluding any such charge that represents an accrual or reserve for a cash expenditure for a future period, plus

 

(g) the amount of any minority interest expense deducted in calculating Consolidated Net Income (less the amount of any cash dividends paid to the holders of such minority interests), plus

 

(h) any net gain or loss resulting from currency exchange risk Hedging Obligations, plus

 

(i) the amount of management, monitoring, consulting and advisory fees and related expenses paid to KKR or any of its Affiliates, plus

 

(j) expenses related to the implementation of enterprise resource planning system, less

 

(k) non-cash items increasing Consolidated Net Income of such Person for such period, excluding any items which represent the reversal of any accrual of, or cash reserve for, anticipated cash charges in any prior period.

 

“ Effective Date ” means the date on which a Make-Whole Event occurs or becomes effective.

 

“ 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 of common stock or preferred stock of the Company or any of its direct or indirect parents (excluding Disqualified Stock), other than:

 

(a) public offerings with respect to the Company’s or any direct or indirect parent’s common stock registered on Form S-8; and

 

(b) any sales to Parent or any of its Subsidiaries.

 

“ Event of Default ” has the meaning set forth in Section 6.01.

 

“ Excess ABL Proceeds ” has the meaning specified in Section 1018 of the First Lien Notes Indenture.

 

“ Excess Proceeds ” has the meaning specified in Section 1018 of the First Lien Notes Indenture.

 

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

 

“ Existing Indebtedness ” means Indebtedness of the Company or the Restricted Subsidiaries in existence on the Issue Date, plus interest accruing thereon.

 

“ Expiration Date ” has the meaning specified in Section 10.06(e).

 

“ Expiration Time ” has the meaning specified in Section 10.06(e).

 

“ First Lien Notes ” means the 10.875% Senior Secured Notes due 2016 issued on May 29, 2009 in an aggregate amount not to exceed $350,000,000 and all guarantees thereof.

 

“ First Lien Notes Collateral ” means the portion of the Collateral as to which First Lien Notes and related guarantees have a first priority security interest subject to Permitted Liens.

 

“ First Lien Notes Collateral Agent ” means The Bank of New York Mellon Trust Company, N.A., in its capacity as notes collateral agent under the First Lien Notes Indenture and under the related security documents, and any successor thereto in such capacity.

 

“ First Lien Notes Indenture ” means the indenture dated as of May 29, 2009, among the Company, as issuer, the guarantors party thereto and The Bank of New York Mellon Trust Company, N.A., as trustee and notes collateral agent; provided that “First Lien Notes Indenture” refers to the First Lien Notes Indenture in effect on the Issue Date and for the avoidance of doubt does not incorporate any amendments to the First Lien Notes Indenture made after the Issue Date.

 

“ First Lien Notes Secured Parties ” means, collectively, the First Lien Notes Trustee, the First Lien Notes Collateral Agent, each holder of First Lien Notes, each other holder of, or obligee in respect of any Obligations in respect of the First Lien Notes and holders of Other First Lien Note Obligations and each Authorized Representative (as defined in the First Lien Notes Security Agreement) thereto.

 

“ First Lien Notes Security Agreement ” means the security agreement dated as of May 29, 2009 among the First Lien Notes Collateral Agent, the Company and the guarantor parties thereto as the same may be amended or supplemented from time to time in accordance with its terms.

 

“ First Lien Notes Trustee ” means The Bank of New York Mellon Trust Company, N.A.

 

“ 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 Company or any Restricted Subsidiary incurs, assumes, guarantees, redeems, retires or extinguishes any Indebtedness (other than reductions in amounts outstanding under revolving facilities unless accompanied by a corresponding termination of commitment) 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 the event for which the calculation of the Fixed Charge Coverage Ratio is made (the “ Calculation Date ”),

 

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then the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect to such incurrence, assumption, guarantee or redemption of Indebtedness, or such issuance, redemption, retirement or extinguishment 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, consolidations and disposed operations (as determined in accordance with GAAP) that have been made by such Person or any Restricted Subsidiary thereof during the four-quarter reference period or subsequent to such reference period and on or prior to or simultaneously with the Calculation Date shall be calculated on a pro forma basis assuming that all such Investments, acquisitions, dispositions, mergers, consolidations and disposed 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 other Person (that subsequently became a Restricted Subsidiary or was merged with or into such Person or any Restricted Subsidiary thereof since the beginning of such period) shall have made any Investment, acquisition, disposition, merger, consolidation or disposed 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, consolidation or disposed 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 a transaction, the pro forma calculations shall be made in good faith by a responsible financial or accounting officer of the Company.  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 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 Company 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.  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 Company may designate.

 

“ Fixed Charges ” means, with respect to any Person for any period, the sum of

 

(a)                                   Consolidated Interest Expense (excluding amounts for interest payments that are payments-in-kind or any accretion to principal amount on the Notes of such Person for such period),

 

(b)                                  all cash dividend payments (excluding items eliminated in consolidation) on any series of preferred stock (including any Designated Preferred Stock) or any Refunding Capital Stock of such Person, and

 

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(c)                                   all cash dividend payments (excluding items eliminated in consolidation) on any series of Disqualified Stock.

 

“ 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 or the District of Columbia.

 

“ Fundamental Change ” shall be deemed to have occurred at such time after the original issuance of the Notes when the following has occurred:

 

(1)                                   the Co-Issuers become 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 the Permitted Holders, in a single transaction or in a related series of transactions, by way of merger, 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 Parent or the Company, as applicable; provided that any transaction initiated by KKR and its Affiliates (other than Parent and its Subsidiaries) shall not be a “Fundamental Change”;

 

(2)                                   consummation of any transaction or event (whether by means of a liquidation, share exchange, tender offer, consolidation, recapitalization, reclassification, merger of Parent or the Company, as applicable, or any sale, lease or other transfer of the consolidated assets of Parent or the Company, as applicable, and their respective subsidiaries substantially as an entirety) or a series of related transactions or events pursuant to which Common Stock or common stock of the Company, as applicable, is converted for, converted into or constitutes solely the right to receive cash, securities or other property, other than any merger or consolidation:

 

(i)                                      that does not result in a reclassification, conversion, exchange or cancellation of Parent’s outstanding Common Stock or the Company’s outstanding common stock, as applicable, and pursuant to which the consideration received by holders of Common Stock or holders of common stock of the Company, as applicable, immediately prior to the transaction entitles such holders to exercise, directly or indirectly, 50% or more of the voting power of all shares of capital stock entitled to vote generally in the election of directors of the continuing or surviving corporation immediately after such transaction; or

 

(ii)                                   which is effected solely to change Parent’s or the Company’s, as applicable, jurisdiction of incorporation and results in a reclassification, conversion or exchange of outstanding shares of Common Stock or common stock of the Company, as applicable, solely into shares of common stock of the surviving entity; or

 

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(3)                                   Common Stock (or other common stock into which the Notes are then convertible) is not listed for trading on the New York Stock Exchange, the NASDAQ Global Market or the NASDAQ Global Select Market (or their respective successors).

 

“ Fundamental Change Co-Issuers Notice ” has the meaning specified in Section 4.01(b).

 

“ Fundamental Change Repurchase Date ” has the meaning specified in Section 4.01(a).

 

“ Fundamental Change Repurchase Expiration Time ” has the meaning specified in Section 4.01(b)(ix).

 

“ Fundamental Change Repurchase Notice ” has the meaning specified in Section 4.01(c).

 

“ Fundamental Change Repurchase Price ” has the meaning specified in Section 4.01(a).

 

“ Funding Guarantor ” has the meaning specified in Section 11.05.

 

“ GAAP ” means generally accepted accounting principles in the United States which are in effect on the Issue Date.  At any time after the Issue Date, the Company may elect to apply International Financial Reporting Standards (“ IFRS ”) accounting principles in lieu of GAAP and, upon any such election, references herein to GAAP shall thereafter be construed to mean IFRS (except as otherwise provided in this Indenture); provided that any such election, once made, shall be irrevocable; provided further that any calculation or determination in this Indenture that requires the application of GAAP for periods that include fiscal quarters ended prior to the Company’s election to apply IFRS shall remain as previously calculated or determined in accordance with GAAP.  The Company shall give notice of any such election made in accordance with this definition to the Trustee and the Holders.

 

“ Global Note ” means a Note deposited with or on behalf of and registered in the name of the Depositary or its nominee, substantially in the form of Exhibit A hereto and that bears the Global Note Legend and that has the “Schedule of Exchanges of Interests in the Global Note” attached thereto, issued in accordance with Section 201 of the Base Indenture.

 

“ Global Note Legend ” means the legend set forth on the Form of Note in Exhibit A hereof, which is required to be placed on all Global Notes issued under this Supplemental Indenture.

 

“ 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,

 

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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.

 

“ guarantee ” means a guarantee (other than by endorsement of negotiable instruments for collection in the ordinary course of business), direct or indirect, in any manner (including, without limitation, 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 Co-Issuers’ obligations under this Indenture.

 

“ Guarantors ” means Holdings and all Restricted Subsidiaries that are wholly-owned Domestic Subsidiaries as of the Issue Date and any other Subsidiary of the Company that executes a supplemental indenture to this Indenture providing for a guarantee of payment of the Notes.

 

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

 

(1)                                   currency exchange, interest rate or commodity swap agreements, currency exchange, interest rate or commodity cap agreements and currency exchange, interest rate or commodity collar agreements and

 

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

 

“ Holdings ” has the meaning specified in the Preamble.

 

“ incur ” has the meaning specified in Section 5.10(a) of this Indenture.

 

“ incurrence ” has the meaning specified in Section 5.10(a) of this Indenture.

 

“ Indebtedness ” means, with respect to any Person,

 

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

 

(1)                                   in respect of borrowed money;

 

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

 

(3)                                   representing the balance deferred and unpaid of the purchase price of any property (including Capitalized Lease Obligations), except any such balance that constitutes a trade payable or similar obligation to a trade creditor, in each case accrued in the ordinary course of business; or

 

(4)                                   representing 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;

 

(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 Indebtedness of another Person, other than by endorsement of negotiable instruments for collection in the ordinary course of business; and

 

(c)                                   to the extent not otherwise included, Indebtedness of another Person secured by a Lien on any asset owned by such Person, whether or not such Indebtedness is assumed by such Person;

 

provided , however , that Contingent Obligations incurred in the ordinary course of business shall be deemed not to constitute Indebtedness; and obligations under or in respect of Receivables Facilities shall not be deemed to constitute Indebtedness.

 

“ Indenture ” means the Base Indenture, solely to the extent it governs the Notes, as supplemented by this Supplemental Indenture as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof, including, for all purposes of this instrument and any such supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of and govern this Supplemental Indenture and any such supplemental indenture, respectively.

 

“ 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 Company, qualified to perform the task for which it has been engaged.

 

“ Initial Lien ” has the meaning specified in Section 5.11.

 

“ Initial Principal Amount ” of any Note means the principal amount of such Note on the Issue Date.

 

“ Insolvency or Liquidation Proceeding ” means:

 

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(a)                                   any voluntary or involuntary case or proceeding under the Bankruptcy Law with respect to either Co-Issuer or any Guarantor;

 

(b)                                  any other voluntary or involuntary insolvency, reorganization or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding with respect to either Co-Issuer or any Guarantor or with respect to a material portion of their respective assets;

 

(c)                                   any composition of liabilities or similar arrangement relating to either Co-Issuer or any Guarantor, whether or not under a court’s jurisdiction or supervision;

 

(d)                                  any liquidation, dissolution, reorganization or winding up of either Co-Issuer or any Guarantor, whether voluntary or involuntary, whether or not under a court’s jurisdiction or supervision, and whether or not involving insolvency or bankruptcy; or

 

(e)                                   any general assignment for the benefit of creditors or any other marshalling of assets and liabilities of either Co-Issuer or any Guarantor.

 

“ Intercreditor Agreement ” means the intercreditor agreement dated as of May 29, 2009 among the Bank Collateral Agent, the First Lien Notes Trustee and First Lien Notes Collateral Agent, the Company and each guarantor party thereto, as supplemented by the Junior Secured Notes Joinder Agreement dated as of the Issue Date, and as it may be amended from time to time in accordance with this Indenture.

 

“ Interest Payment Date ” has the meaning specified in Section 3.03(c).

 

“ 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, commission, travel and similar advances to officers and employees, 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 Company 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”,

 

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

 

(x)                                    the Company’s “Investment” in such Subsidiary at the time of such redesignation less

 

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(y)                                  the portion (proportionate to the Company’s Equity Interests in such Subsidiary) of the fair market value of the net assets of such Subsidiary at the time of such redesignation; and

 

(2)                                   any property transferred to or from an Unrestricted Subsidiary shall be valued at its fair market value at the time of such transfer, in each case as determined in good faith by the Company.

 

“ Issue Date ” means July 10, 2009.

 

“ Junior Lien Priority ” means, relative to specified Indebtedness, having Lien priority that is junior to the Notes on specified Collateral and either subject to the Intercreditor Agreement or an intercreditor agreement on a basis that is no more favorable to the holder of such specified indebtedness than the provisions applicable to the Holders relative to the ABL Secured Parties and First Lien Notes Secured Parties.

 

“ KKR ” means Kohlberg Kravis Roberts & Co. L.P.

 

“ Lenders Debt ” means any (i) Indebtedness outstanding from time to time under the Credit Agreement, (ii) any Indebtedness which has a first priority security interest in the ABL Collateral (subject to Permitted Liens) and (iii) all cash management Obligations and Hedging Obligations incurred with any Bank Lender (or their affiliates).

 

“ Lien ” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention agreement, any lease in the nature thereof, any option or other agreement to sell or give a security interest in and any filing of or agreement to give any financing statement under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction; provided that in no event shall an operating lease be deemed to constitute a Lien.

 

“ Make-Whole Event ” shall be deemed to have occurred at such time after the Issue Date when the following has occurred:

 

(1)                                   the Co-Issuers become 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 the Permitted Holders, in a single transaction or in a related series of transactions, by way of merger, 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 Parent or the Company, as applicable; provided that any transaction initiated by KKR and its Affiliates (other than Parent and its Subsidiaries) shall not cause a “Make-Whole Event”;

 

(2)                                   consummation of any transaction or event (whether by means of a liquidation, share exchange, tender offer, consolidation, recapitalization, reclassification, merger

 

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of Parent or the Company, as applicable, or any sale, lease or other transfer of the consolidated assets of Parent or the Company, as applicable, and their respective subsidiaries substantially as an entirety) or a series of related transactions or events pursuant to which Common Stock or common stock of the Company, as applicable, is converted for, converted into or constitutes solely the right to receive cash, securities or other property, other than any merger or consolidation which is effected solely to change Parent’s or the Company’s, as applicable, jurisdiction of incorporation and results in a reclassification, conversion or exchange of outstanding shares of Common Stock or common stock of the Company, as applicable, solely into shares of common stock of the surviving entity; or

 

(3)                                   Common Stock (or other common stock into which the Notes are then convertible) is not listed for trading on the New York Stock Exchange, the NASDAQ Global Market or the NASDAQ Global Select Market (or their respective successors);

 

provided that the definition of Make-Whole Event shall not include a merger or consolidation under clause (1) or any event specified under clause (2), in each case, if at least 90% of the consideration paid for Common Stock (excluding cash payments for fractional shares and cash payments made pursuant to dissenters’ appraisal rights and cash dividends) in connection with such event consists of shares of common stock traded on the New York Stock Exchange, the NASDAQ Global Market or the NASDAQ Global Select Market (or their respective successors) (or will be so traded or quoted immediately following the completion of the merger or consolidation or such other transaction) and, as a result of such transaction or transactions, the Notes become convertible into such shares of common stock.

 

“ Make-Whole Period ” has the meaning specified in Section 10.05.

 

“ Management Group ” means at any time, the Chairman of the Board, any President, any Executive Vice President or Vice President, any Managing Director, any Treasurer and any Secretary or other executive officer of any of Parent or its Subsidiaries at such time.

 

“ Management Notes ” means up to $25,000,000 aggregate principal amount of 8.00% convertible senior secured third lien notes due 2016 of the Co-Issuers, having terms and conditions that are not less favorable to the Co-Issuers than the Notes and with respect to which the holders (or a trustee or agent on behalf of such holders) shall have executed a supplement to the Intercreditor Agreement agreeing to be bound thereby on the same terms applicable to the Holders.

 

“ Maturity Date ” means July 15, 2016.

 

“ Moody’s ” means Moody’s Investors Service, Inc.

 

“ Net Debt ” means, on a consolidated basis, (i) the Indebtedness of Parent and its Subsidiaries (excluding the Notes and Management Notes) less (ii) Cash Equivalents held by Parent and its Subsidiaries.

 

“ 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.

 

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“ Notes ” has the meaning set forth in the fourth paragraph of the recitals of this Supplemental Indenture, and “ Note ” means each $25 Initial Principal Amount of Notes.

 

“ Notes Secured Parties ” means the Trustee, the Collateral Agent, each Holder, any holders of Additional Notes and each other holder of, or obligee in respect of, any obligations in respect of the Notes outstanding at such time, in each case, in its capacity as such and not in any other capacity.

 

“ Obligations ” means any principal, interest (including any interest accruing 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), penalties, fees, indemnifications, reimbursements (including, without limitation, 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.

 

“ Officer ” means the Chairman of the board of directors, the President, any Executive Vice President, Senior Vice President or Vice President, the Treasurer or the Secretary of Parent or the Company, as applicable.

 

“ Officers’ Certificate ” means a certificate signed on behalf of the Co-Issuers by two Officers of each of the Co-Issuers, one of whom must be the principal executive officer, the principal financial officer, the treasurer or the principal accounting officer of each Co-Issuer and that meets the requirements set forth in this Indenture.

 

“ open of business ” means 9:00 a.m. (New York City time).

 

“ Other First Lien Note Obligations ” means any Additional First Lien Notes and any other Indebtedness having Pari Passu Lien Priority relative to the First Lien Notes with respect to First Lien Notes Collateral, either Pari Passu Lien Priority, Junior Lien Priority or no Lien with respect to the ABL Collateral and substantially identical terms as the First Lien Notes (other than issue price, interest rate, yield and redemption terms) and any Indebtedness that refinances or refunds (or successive refinancings and refundings) any First Lien Notes or Additional First Lien Notes and all obligations with respect to such Indebtedness; provided that such Indebtedness may (a) contain terms and covenants that are, in the reasonable opinion of the Company, less restrictive to the Company and the Restricted Subsidiaries than the terms and covenants under the First Lien Notes; provided that such Indebtedness has Pari Passu Lien Priority relative to the First Lien Notes; and (b) contain terms and covenants that are more restrictive to the Company and its Restricted Subsidiaries than the terms and covenants under the First Lien Notes so long as prior to or substantially simultaneously with the issuance of any such Indebtedness, the First Lien Notes and the First Lien Indenture are amended to contain any such more restrictive terms and covenants; provided further that such Indebtedness shall have a Stated Maturity that is the same as or later than that of the First Lien Notes.

 

“ Outstanding ”, when used with respect to Notes, means, as of the date of determination, all Notes theretofore authenticated and delivered under this Indenture, except:

 

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(1)                                   Notes theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;

 

(2)                                   Notes, or portions thereof, for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than either Co-Issuer) in trust or set aside and segregated in trust by either Co-Issuer (if either Co-Issuer shall act as Paying Agent) for the Holders of such Notes; provided that, if such Notes are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made;

 

(3)                                   Notes which have been paid pursuant to Section 306 of the Base Indenture or in exchange for or in lieu of which other Notes have been authenticated and delivered pursuant to this Indenture, other than any such Notes in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Notes are held by a bona fide purchaser in whose hands the Notes are valid obligations of the Co-Issuers; and

 

(4)                                   Notes which have been converted pursuant to Article 10 of this Indenture into Common Stock or other securities or property;

 

provided , however , that in determining whether the Holders of the requisite Initial Principal Amount of Outstanding Notes have given any request, demand, authorization, direction, consent, notice or waiver hereunder relating to the matters specified in TIA § 316(a)(1), Notes owned by either Co-Issuer, any Guarantor or any other obligor upon the Notes or any Affiliate of either Co-Issuer, any Guarantor, or such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Notes which a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded.

 

“ Parent ” has the meaning set forth in the Preamble.

 

“ Pari Passu Lien Priority ” means, relative to specified Indebtedness, having equal Lien priority on specified Collateral and either subject to the Intercreditor Agreement on a substantially identical basis as the holders of such specified Indebtedness or subject to intercreditor agreements providing holders of the Indebtedness intended to have Pari Passu Lien Priority with substantially the same rights and obligations that the holders of such specified Indebtedness have pursuant to the Intercreditor Agreement as to the specified Collateral.

 

“ Paying Agent ” has the meaning set forth in the Base Indenture, which shall initially be the Trustee, and shall be the Person authorized by the Co-Issuers to pay the principal amount of, interest on, or Fundamental Change Repurchase Price of, any Notes on behalf of the Co-Issuers.

 

“ Permitted Holders ” means KKR, its Affiliates and the Management Group.

 

“ Permitted Investments ” has the meaning set forth in the First Lien Notes Indenture.

 

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

 

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(1)                                   pledges or deposits by such Person under workmen’s compensation laws, unemployment insurance laws or similar legislation, 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 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;

 

(2)                                   Liens imposed by law, such as carriers’, warehousemen’s and mechanics’ Liens, in each case for sums not yet due or being contested in good faith by appropriate proceedings 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;

 

(3)                                   Liens for taxes, assessments or other governmental charges not yet due or payable or subject to penalties for nonpayment or which are being contested in good faith by appropriate proceedings;

 

(4)                                   Liens in favor of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or letters of credit issued pursuant to the request of and for the account of such Person in the ordinary course of its business;

 

(5)                                   minor survey exceptions, minor encumbrances, easements or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions as to the use of real 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 adversely affect the value of said properties or materially impair their use in the operation of the business of such Person;

 

(6)                                   (A) Liens securing Senior Indebtedness permitted to be incurred pursuant to Section 5.10(a) hereof; provided that any such Indebtedness has Pari Passu Lien Priority relative to the Notes; provided further that at the time of incurrence and after giving pro forma effect thereto, the Consolidated Senior Secured Debt Ratio would be no greater than 2.75 to 1.0 and (B) Liens securing Indebtedness pursuant to Section 5.10(b)(v) hereof; provided that Liens securing Indebtedness incurred pursuant to Section 5.10(b)(v) are solely on acquired property or the assets of the acquired entity;

 

(7)                                   Liens existing on the Issue Date (other than Liens in favor of secured parties under the Credit Agreement and First Lien Notes);

 

(8)                                   Liens on property or shares of stock of a Person at the time such Person becomes a Subsidiary; provided , however , such Liens are not created or incurred in connection with, or in contemplation of, such other Person becoming such a subsidiary; provided , further , however , that such Liens may not extend to any other property owned by the Company or any Restricted Subsidiary;

 

(9)                                   Liens on property at the time the Company or a Restricted Subsidiary acquired the property, including any acquisition by means of a merger or consolidation with or

 

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into the Company or any Restricted Subsidiary; provided , however , that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided , further , however , that the Liens may not extend to any other property owned by the Company or any Restricted Subsidiary;

 

(10)                             Liens securing Indebtedness or other obligations of a Restricted Subsidiary owing to the Company or another Restricted Subsidiary permitted to be incurred in accordance with Section 5.10 hereof;

 

(11)                             Liens securing Hedging Obligations so long as the related Indebtedness is, and is permitted under this Indenture to be, secured by a Lien on the same property securing such Hedging Obligations;

 

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

 

(13)                             leases and subleases of real property granted to others in the ordinary course of business so long as such leases and subleases are subordinate in all respects to the Liens granted and evidenced by the Security Documents and do not materially interfere with the ordinary conduct of the business of the Company or any of the Restricted Subsidiaries;

 

(14)                             Liens arising from Uniform Commercial Code financing statement filings regarding operating leases entered into by the Company and its Restricted Subsidiaries in the ordinary course of business;

 

(15)                             Liens in favor of the Company or any Guarantor;

 

(16)                             Liens on equipment of the Company or any Restricted Subsidiary granted in the ordinary course of business to the Company’s client at which such equipment is located;

 

(17)                             Liens on accounts receivable and related assets incurred in connection with a Receivables Facility;

 

(18)                             Liens to secure any 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 (6)(B), (7), (8), (9), (10), (11) and (15); provided , however , that (x) such new Lien shall be limited to all or part of the same property that secured the original Lien (plus improvements on such property), (y) the Indebtedness secured by such Lien at such time is not increased to any amount greater than the sum of (A) the outstanding principal amount or, if greater, committed amount of the Indebtedness described under clauses (6)(B), (7), (8), (9), (10), (11) and (15) at the time the original Lien became a Permitted Lien under this Indenture, and (B) an amount necessary to pay any fees and expenses, including premiums, related to such refinancing, refunding, extension, renewal or replacement and (z) the new Lien has no greater priority and the holders of the Indebtedness secured by such Lien have no greater intercreditor rights relative to the Notes and Holders thereof than the original Liens and the related Indebtedness;

 

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(19)         other Liens securing obligations incurred in the ordinary course of business which obligations do not exceed $50.0 million at any one time outstanding; provided that if such Liens attach to Collateral, such Liens have Pari Passu Lien Priority relative to the Notes;

 

(20)         (A) Liens securing Indebtedness incurred pursuant to Section 5.10(b)(i) hereof and (B) Liens securing Indebtedness incurred pursuant to Section 5.10(b)(iii)(A) hereof and any Refinancing Indebtedness with respect thereto; provided that with respect to clause (A) or (B), the holder of such Lien is a party to or agrees to become party to or bound by the Intercreditor Agreement or intercreditor agreements consistent with the Intercreditor Agreement;

 

(21)         Liens securing the Notes and the Management Notes, Refinancing Indebtedness with respect to the Notes and the Management Notes, the Guarantees and other guarantees relating thereto and any obligations with respect to such Notes and Management Notes, Refinancing Indebtedness, the Guarantees or other guarantees;

 

(22)         Liens on the Collateral in favor of any collateral agent relating to such collateral agent’s administrative expenses with respect to the Collateral;

 

(23)         Liens to secure Indebtedness of any Foreign Subsidiary permitted by Section 5.10(b)(xix) hereof covering only the assets of such Foreign Subsidiary; and

 

(24)         Liens to secure any Third Lien Indebtedness or any Indebtedness with Junior Lien Priority to the extent such Liens and such Indebtedness are permitted pursuant to the First Lien Notes Indenture.

 

For purposes of determining compliance with this definition, (A) Permitted Liens need not be incurred solely by reference to one category of Permitted Liens described above but are permitted to be incurred in part under any combination thereof and (B) in the event that a Lien (or any portion thereof) meets the criteria of one or more of the categories of Permitted Liens described above, the Company shall, in its sole discretion, classify (but not reclassify) such item of Permitted Liens (or any portion thereof) in any manner that complies with this definition and shall only be required to include the amount and type of such item of Permitted Liens in one of the above clauses and such Lien shall be treated as having been incurred pursuant to only one of such clauses.

 

“ Place of Payment ” means, for purposes of the Notes, New York, New York.

 

“ Pledge Agreement ” means the third lien pledge agreement dated as of the Issue Date by and among the Collateral Agent, the Company and the Guarantors as the same may be amended or supplemented from time to time in accordance with its terms.

 

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

 

“ Prospectus Supplement” means the Prospectus Supplement dated May 27, 2009 relating to the rights offering for the Notes.

 

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“ Publicly Traded Securities ” means shares of common stock listed on a national securities exchange, which will be so listed when issued or exchanged in connection with an event that would be a Fundamental Change but for the second proviso in the definition of such term.

 

“ Receivables Facility ” means one or more receivables financing facilities, as amended from time to time, the Indebtedness of which is non-recourse (except for standard representations, warranties, covenants and indemnities made in connection with such facilities) to the Company and the Restricted Subsidiaries pursuant to which the Company and/or any of its Restricted Subsidiaries sells its accounts receivable to a Person that is not a Restricted Subsidiary.

 

“ Receivables 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 Restricted Subsidiary in connection with, any Receivables Facility.

 

“ Record Date ” means, with respect to any dividend, distribution or other transaction or event in which the holders of Common Stock have the right to receive any cash, securities or other property or in which Common Stock (or other applicable security) is converted for or converted into any combination of cash, securities or other property, the date fixed for determination of holders of Common Stock entitled to receive such cash, securities or other property (whether such date is fixed by Parent’s Board of Directors or by statute, contract or otherwise).

 

“ Reference Property ” has the meaning specified in Section 10.07.

 

“ Refinancing Indebtedness ” has the meaning specified in Section 5.10(b)(xvi).

 

“ Refunding Capital Stock ” has the meaning given to such term in the First Lien Notes Indenture.

 

“ Reorganization Event ” has the meaning specified in Section 10.07.

 

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

 

“ S&P ” means Standard and Poor’s Ratings Group.

 

“ Schedule TO ” means a Tender Offer Statement under Section 14(d)(1) or 13(e)(1) of the Exchange Act.

 

“ Security Agreement ” means the third lien security agreement dated as of the Issue Date among the Collateral Agent, the Company and the Guarantors as the same may be amended or supplemented from time to time in accordance with its terms.

 

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“ Security Documents ” means the security agreements, pledge agreements, mortgages, deeds of trust, deeds to secure debt, collateral assignments, control agreements and related agreements (including, without limitation, finance statements under the Uniform Commercial Code of the relevant states), as amended, supplemented, restated, renewed, refunded, replaced, restructured, repaid, refinanced or otherwise modified from time to time, creating the security interests in the Collateral as contemplated by this Indenture.

 

“ Senior Indebtedness ” means:

 

(1)           all Indebtedness of the Co-Issuers or any Guarantor outstanding under the Credit Agreement and the First Lien Notes (including interest accruing on or after the filing of any petition in bankruptcy or for reorganization of either Co-Issuer or any Guarantor, regardless of whether or not a claim for post-filing interest is allowed in such proceedings);

 

(2)           all Hedging Obligations (and guarantees thereof) permitted to be incurred under the terms of this Indenture;

 

(3)           any other Indebtedness of either Co-Issuer or any Guarantor permitted to be incurred under the terms of this Indenture, unless the instrument under which such Indebtedness is incurred expressly provides that it is subordinated in right of payment to the Notes or the Guarantees; and

 

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

 

“ Senior Indebtedness ” of any guarantor of the Notes, including the Guarantors, has a correlative meaning.

 

“ Senior Subordinated Notes ” means the Company’s 8.25% Senior Subordinated Notes due 2014 outstanding on the Issue Date.

 

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

 

“ Similar Business ” means any business conducted or proposed to be conducted by the Company and its Restricted Subsidiaries on the date of this Indenture or any business that is similar, reasonably related, incidental or ancillary thereto.

 

“ Spin-Off ” has the meaning specified in Section 10.06(c).

 

“ Subordinated Indebtedness ” means:

 

(a)           with respect to the Co-Issuers, any Indebtedness of the Co-Issuers which is by its terms subordinated in right of payment to the Notes, and

 

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

 

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“ Subsidiary ” means, with respect to any Person,

 

(1)           any corporation, association, or other business entity (other than a partnership, joint venture, limited liability company or similar entity) of which more than 50% of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency) 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

 

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

 

(x)            more than 50% 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

 

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

 

“ Subsidiary Guarantee ” means the guarantee by any Subsidiary Guarantor of the Co-Issuers’ obligations under this Indenture.

 

“ Subsidiary Guarantor ” means all of the Company’s Domestic Subsidiaries existing on the Issue Date and any other Subsidiary of the Company that executes a supplemental indenture to this Indenture providing for a guarantee of payment of the Notes.

 

“ Successor Company ” has the meaning specified in Section 8.01(a).

 

“ Successor Person ” has the meaning specified in Section 8.02(a)(i).

 

“ Supplemental Indenture ” has the meaning set forth in the Preamble.

 

“ Third Lien Indebtedness ” means any Indebtedness (other than Notes, but including any Additional Notes) that is secured by the Collateral with Pari Passu Lien Priority relative to the Notes or is secured by some of the Collateral with Pari Passu Lien Priority relative to the Notes and is not secured by the balance of the Collateral and with respect to which the holders (or a trustee or agent on behalf of such holders) shall have executed a supplement to the Intercreditor Agreement agreeing to be bound thereby on the same terms applicable to the holders of Notes.

 

“ Total Assets ” means the total assets of the Company and the Restricted Subsidiaries, as shown on the most recent balance sheet of the Company.

 

“ Trading Day ” means a day on which (i) trading in the Common Stock generally occurs on the New York Stock Exchange or, if the Common Stock is not then listed on the New York

 

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Stock Exchange, on the principal other United States national or regional securities exchange on which the Common Stock is then listed or, if the Common Stock is not then listed on a United States national or regional securities exchange, in the principal other market on which the Common Stock is then traded, and (ii) a Closing Sale Price for the Common Stock is available on such securities exchange or market. If the Common Stock (or other security for which a closing sale price must be determined) is not so listed or traded, “ Trading Day ” means a “Business Day.”

 

“ Trust Indenture Act ” or “ TIA ” means the Trust Indenture Act of 1939 as in force at the date as of which this Indenture was executed, except as provided in Section 9.05.

 

“ Trustee ” means the Person named as the “Trustee” in the first paragraph of this Indenture until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean such successor Trustee.

 

“ Unrestricted Subsidiary ” means:

 

(1)           any Subsidiary of the Company which at the time of determination is an Unrestricted Subsidiary (as designated by the Board of Directors of the Company pursuant to the First Lien Notes Indenture), and

 

(2)           any Subsidiary of an Unrestricted Subsidiary.

 

“ Valuation Period ” has the meaning specified in Section 10.06(c).

 

“ Vice President ”, when used with respect to the Company, Parent or the Trustee, means any vice president, whether or not designated by a number or a word or words added before or after the title “vice president”.

 

“ 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:

 

(1)           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

 

(2)           the sum of all such payments.

 

“ Wholly Owned Restricted Subsidiary ” means any Wholly-Owned Subsidiary that is a Restricted Subsidiary.

 

“ Wholly Owned Subsidiary ” of any Person means a Subsidiary of such Person, 100% of the outstanding Capital Stock or other ownership interests of which (other than directors’

 

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qualifying shares) shall at the time be owned by such Person or by one or more Wholly Owned Subsidiaries of such Person.

 

Section 1.03 .  Incorporation by Reference of Trust Indenture Act.   This Indenture is subject to the mandatory provisions of the Trust Indenture Act, which are incorporated by reference in and made a part of this Indenture.  The following Trust Indenture Act terms have the following meanings:

 

“ indenture securities ” means the Notes.

 

“ indenture security holder ” means a Holder.

 

“ indenture to be qualified ” means this Indenture.

 

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

 

“ obligor ” on the indenture securities means the Co-Issuers and any other obligor on the indenture securities.

 

All other Trust Indenture Act 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 Commission rule have the meanings assigned to them by such definitions.

 

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

 

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

 

(2)           “or” is not exclusive; and

 

(3)           “including” means including without limitation.

 

ARTICLE 2
CO-ISSUERS

 

Section 2.01 .  Addition of Co-Issuer; Waiver of Parent Guarantee.  Solely for purposes of the Notes, (i) each of Parent and the Company shall be jointly and severally liable for all obligations under the Notes and (ii) Parent shall cease to be a Guarantor under the Base Indenture.

 

ARTICLE 3
THE NOTES

 

Section 3.01 .  Designation, Amount and Issuance of Notes.  The Notes shall be designated as “8% Senior Secured Third Lien Convertible Notes due 2016” and limited in aggregate Initial Principal Amount to $177,132,000, except as otherwise provided for in this

 

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Indenture.  Upon the execution of this Supplemental Indenture, or from time to time thereafter, the Notes may be executed by the Co-Issuers and delivered to the Trustee for authentication.

 

Section 3.02 .  Form of the Notes and Transfers.  The Notes and the Trustee’s certificate of authentication to be borne by such Notes, the Conversion Notice, Fundamental Change Repurchase Notice and Assignment shall be substantially in the forms set forth in Exhibits A, B, C and D, respectively, hereto.

 

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

 

Any definitive Notes shall be printed, lithographed, typewritten or engraved on steel-engraved borders or may be produced in any other manner, all as determined by the Officers of the Co-Issuers executing such Notes, as evidenced by their execution of such Notes.

 

Any of the Notes may have such letters, numbers or other marks of identification and such notations, legends, endorsements or changes as the officers executing the same may approve (execution thereof to be conclusive evidence of such approval) and as are not inconsistent with the provisions of this Indenture, or as may be required by the Custodian for the Global Notes, the Depositary or as may be required to comply with any applicable law or with any rule or regulation made pursuant thereto or with any rule or regulation of any securities exchange or automated quotation system on which the Notes may be listed, or to conform to usage, or to indicate any special limitations or restrictions to which any particular Notes are subject.

 

Notes issued in global form will 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 will 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 will represent such of the outstanding Notes as will be specified therein and each shall provide that it represents the aggregate Initial Principal Amount of outstanding Notes from time to time endorsed thereon and that the aggregate Initial Principal Amount of outstanding Notes represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and redemptions.  Any endorsement of a Global Note to reflect the amount of any increase or decrease in the aggregate Initial Principal Amount of outstanding Notes represented thereby will be made by the Trustee or the Custodian, at the direction of the Trustee, in accordance with instructions given by the Holder thereof.

 

The transfer and exchange of beneficial interests in any Global Note shall be effected through the Depositary in accordance with this Indenture and the Applicable Procedures of the Depositary.  Except as provided in Section 3.03(d), beneficial owners of a Global Note shall not be entitled to have certificates registered in their names, will not receive or be entitled to receive

 

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physical delivery of certificates in definitive form and will not be considered holders of such Global Note.

 

A Holder of Definitive Notes may transfer such Notes to a Person who takes delivery thereof in the form of a Definitive Note.  Upon receipt of a request to register such a transfer, the Securities Registrar shall register the Definitive Notes pursuant to the instructions from the Holder thereof.  In case a Holder shall transfer a portion of any Definitive Note, the Co-Issuers shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of such Definitive Note, without charge to such Holder, a new Definitive Note or Definitive Notes, of any authorized denomination, in aggregate Initial Principal Amount equal to the non-transferred portion of such Definitive Note.  A Holder of Definitive Notes may also exchange such Notes for a beneficial interest in a Global Note or transfer such Definitive Notes to a Person who takes delivery thereof in the form of a beneficial interest in a Global Note at any time.  Upon receipt of a request for such an exchange or transfer, the Trustee will cancel the applicable Definitive Notes and increase or cause to be increased the aggregate Initial Principal Amount of the Global Note.

 

Any Global Note shall represent such of the outstanding Notes as shall be specified therein and shall provide that it shall represent the aggregate Initial Principal Amount of outstanding Notes from time to time endorsed thereon and that the aggregate Initial Principal Amount of outstanding Notes represented thereby may from time to time be increased or reduced to reflect repurchases, conversions, transfers or exchanges permitted hereby.  Any endorsement of a Global Note to reflect the amount of any increase or decrease in the aggregate Initial Principal Amount of outstanding Notes represented thereby shall be made by the Trustee or the custodian for the Global Note, at the direction of the Trustee, in such manner and upon instructions given by the Holder in accordance with this Indenture.  Payment of principal of, interest on and premium, if any, on any Global Notes shall be made to the Depositary in immediately available funds.  The Co-Issuers have initially designated the Trustee as their Paying Agent and Security Registrar in respect of the Notes and the Corporate Trust Office as a place where Notes may be presented for payment or for registration of transfer.  The Co-Issuers may , however, change the Paying Agent or Security Registrar for the Notes without prior notice to the Holders, and either Co-Issuer may act as Paying Agent or Security Registrar for the Notes.

 

Section 3.03 .  Date and Denomination of Notes; Payment at Maturity; Payment of Interest.

 

(a)        Date and Denomination .  The Notes shall be issuable only in registered form without coupons and only in minimum denominations of $25 and any integral multiple of $25 in excess thereof.  Each Note shall be dated the date of its authentication and shall bear interest from the date specified on the face of the form of Notes attached as Exhibit A hereto.

 

(b)        Payment at Maturity .  The Notes shall mature on July 15, 2016, unless earlier converted or repurchased in accordance with the provisions hereof.  On the Maturity Date or such earlier repurchase date, each Holder shall be entitled to receive the Accreted Principal Amount of its Notes, together with accrued and non-capitalized interest to, but not including, the Maturity Date or such earlier repurchase date.  With respect to Global Notes, principal and interest shall be paid to the Depositary in immediately available funds.  With respect to

 

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Definitive Notes, principal and interest shall be payable at the Co-Issuers’ office or agency in New York City, which initially will be the Corporate Trust Office.  If the Maturity Date is not a Business Day, payment shall be made on the next succeeding Business Day, and no additional interest shall accrue thereon.

 

(c)   Interest .  Interest on the Notes shall accrue at the rate of 8% per annum and will compound on a semi-annual basis on January 15 and July 15, whether or not any such date is a Business Day (each, an “ Interest Payment Date ”), commencing on July 15, 2009.  The Co-Issuers shall not pay interest in cash on any Interest Payment Date, but instead the Accreted Principal Amount shall be increased as of such Interest Payment Date by the Accretion Amount applicable to such Interest Payment Date.  However, if a Fundamental Change Repurchase Date or an accelerated maturity date occurs (i) on a day that is not an Interest Payment Date, the Co-Issuers shall pay the interest accrued on the Notes from and including the immediately preceding Interest Payment Date to, but excluding, such Fundamental Change Repurchase Date or accelerated maturity date in cash or (ii) on a day that is an Interest Payment Date, the Co-Issuers shall pay the Accretion Amount for such Interest Payment Date in cash.  Interest will be computed on the basis of a 360-day year comprised of twelve 30-day months.

 

(d)   The following provisions shall apply only to Global Notes:

 

(i)                Notwithstanding any other provision in this Indenture, no Global Note may be exchanged in whole or in part for Notes registered, and no transfer of a Global Note in whole or in part may be registered, in the name of any Person other than the Depositary or a nominee thereof unless (A) the Depositary (x) has notified the Co-Issuers 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 each case a successor Depositary has not been appointed by the Co-Issuers within ninety (90) calendar days, or (B) the Co-Issuers, at their option, notify the Trustee in writing that they no longer wish to have certain Notes represented by Global Notes.  Any Global Note exchanged pursuant to this Section 3.03(d)(i) shall be so exchanged in whole and not in part.

 

(ii)               In addition, certificated Notes will be issued in exchange for beneficial interests in a Global Note upon request by or on behalf of the Depositary in accordance with customary procedures following the request of a beneficial owner seeking to enforce its rights under the Notes or this Indenture, including its rights following the occurrence of an Event of Default.

 

(iii)              Notes issued in exchange for a Global Note or any portion thereof pursuant to clause (i) or (ii) above shall be issued in definitive, fully registered form, without interest coupons, shall have an aggregate Initial Principal Amount equal to that of such Global Notes or portion thereof to be so exchanged, shall be registered in such names and be in such authorized denominations as the Depositary shall designate and shall bear any legends required hereunder.  Any Global Notes to be exchanged shall be surrendered by the Depositary to the Trustee, as Registrar; provided that pending completion of the exchange of a Global Note, the Trustee acting as custodian for the Global Notes for the Depositary or its nominee with respect to such Global Notes, shall

 

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reduce the Initial Principal Amount thereof, by an amount equal to the portion thereof to be so exchanged, by means of an appropriate adjustment made on the records of the Trustee.  Upon any such surrender or adjustment, the Trustee shall authenticate and make available for delivery the Notes issuable on such exchange to or upon the written order of the Depositary or an authorized representative thereof.

 

(iv)             In the event of the occurrence of any of the events specified in clause (i) above or upon any request described in clause (ii) above, the Co-Issuers shall promptly make available to the Trustee a sufficient supply of certificated Notes in definitive, fully registered form, without interest coupons.

 

(v)              Neither any members of, or participants in, the Depositary (the “Agent Members” ) nor any other Persons on whose behalf Agent Members may act shall have any rights under this Indenture with respect to any Global Notes registered in the name of the Depositary or any nominee thereof, and the Depositary or such nominee, as the case may be, may be treated by the Co-Issuers, the Trustee and any agent of the Co-Issuers or the Trustee as the absolute owner and holder of such Global Notes for all purposes whatsoever.  Notwithstanding the foregoing, nothing herein shall prevent the Co-Issuers, the Trustee or any agent of the Co-Issuers or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or such nominee, as the case may be, or impair, as between the Depositary, its Agent Members and any other Person on whose behalf an Agent Member may act, the operation of customary practices of such Persons governing the exercise of the rights of any Holder.

 

(vi)             At such time as all interests in a Global Note have been repurchased, converted, cancelled or exchanged for Notes in certificated form, such Global Note shall, upon receipt thereof, be cancelled by the Trustee in accordance with standing procedures and instructions existing between the Depositary and the custodian for the Global Note.  At any time prior to such cancellation, if any interest in a Global Note is repurchased, converted, cancelled or exchanged for Notes in certificated form, the Initial Principal Amount of such Global Note shall, in accordance with the standing procedures and instructions existing between the Depositary and the custodian for the Global Note, be appropriately reduced, and an endorsement shall be made on such Global Note, by the Trustee or the custodian for the Global Note, at the direction of the Trustee, to reflect such reduction.

 

Section 3.04 .  Outstanding Notes.  Notwithstanding anything in the definition of “Outstanding” in Section 101 of the Base Indenture to the contrary, if the Paying Agent segregates and holds in trust, in accordance with this Indenture, on a Fundamental Change Repurchase Date or Maturity Date cash sufficient to pay all principal and interest payable on that date with respect to the Notes (or portions thereof) to be repurchased or maturing, as the case may be, and the Paying Agent is not prohibited from paying such money to the Holders on that date pursuant to the terms of this Indenture, then on and after that date such Notes (or portions thereof) shall cease to be “Outstanding” for purposes of this Indenture and interest on them shall cease to accrue.

 

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ARTICLE 4
REPURCHASE OF NOTES

 

Section 4.01 .  Repurchase at Option of the Holder upon a Fundamental Change.  (a) If a Fundamental Change occurs, each Holder shall have the right to require the Co-Issuers to purchase some or all of that Holder’s Notes, in integral multiples of $25 Initial Principal Amount, on a date (the “ Fundamental Change Repurchase Date ”) of the Co-Issuers’ choosing that is not less than 15 Business Days nor more than 35 Business Days after the date of the Fundamental Change Co-Issuers Notice at a repurchase price in cash equal to 100% of the Accreted Principal Amount of the Notes to be repurchased, plus interest in cash on the Accreted Principal Amount at the rate set forth in Section 3.03 from and including the immediately preceding Interest Payment Date to, but excluding, the Fundamental Change Repurchase Date (the “ Fundamental Change Repurchase Price ”).

 

(b)   Within 15 calendar days after the occurrence of a Fundamental Change, the Co-Issuers are required to mail notice (the “ Fundamental Change Co-Issuers Notice ”) of the following to all Holders:

 

(i)          the events causing the Fundamental Change;

 

(ii)         the date of the Fundamental Change;

 

(iii)        the last date on which a Holder may exercise the repurchase right pursuant to this Article 4;

 

(iv)        the Fundamental Change Repurchase Price;

 

(v)         the Fundamental Change Repurchase Date;

 

(vi)        the name and address of the Paying Agent and the Conversion Agent;

 

(vii)       that the Notes are eligible to be converted, the applicable Conversion Price and any adjustments to the applicable Conversion Price resulting from such Fundamental Change transaction and expected changes in the shares deliverable upon conversion of the Notes as a result of the occurrence of the Fundamental Change;

 

(viii)      that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Supplemental Indenture;

 

(ix)         that a Holder must exercise its repurchase right by the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date (the “ Fundamental Change Repurchase Expiration Time ”);

 

(x)          that the Holder shall have the right to withdraw any Notes tendered prior to the Fundamental Change Repurchase Expiration Time;

 

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(xi)         the CUSIP number of the Notes; and

 

(xii)        the procedures that Holders must follow to require the Co-Issuers to repurchase their Notes pursuant to this Article 4.

 

The Co-Issuers must also deliver a copy of the Fundamental Change Co-Issuers Notice to the Paying Agent.  No failure of the Co-Issuers to give the foregoing notices and no defect therein shall limit the repurchase rights of Holders or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 4.01.

 

(c)   To exercise the repurchase right, a Holder must deliver, on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date specified in the Fundamental Change Co-Issuers Notice, written notice (the “ Fundamental Change Repurchase Notice ”) to the Trustee of the Holder’s exercise of its repurchase right. The Fundamental Change Repurchase Notice shall state:

 

(i)     the name of the Holder;

 

(ii)     if certificated Notes have been issued, the certificate numbers of the Notes to be delivered for repurchase, or if certificated Notes have not been issued, such Fundamental Change Repurchase Notice must comply with appropriate Depositary procedures;

 

(iii)     the portion of the aggregate Initial Principal Amount of the Holder’s Notes to be repurchased, which must be $25 Initial Principal Amount or an integral multiple thereof; and

 

(iv)     that the Notes are to be repurchased by the Co-Issuers pursuant to the applicable provisions of the Notes and this Indenture.

 

(d)   Holders may withdraw any Fundamental Change Repurchase Notice by delivering a written notice of withdrawal to the Paying Agent prior to the close of business on the Business Day before the Fundamental Change Repurchase Date.  The withdrawal notice must state:

 

(i)    the name of the Holder;

 

(ii)   a statement that the Holder is withdrawing its election to require the Co-Issuers to repurchase its Notes;

 

(iii)  the aggregate Initial Principal Amount of the withdrawn Notes, which must be an integral multiple of $25;

 

(iv)  if certificated Notes have been issued, the certificate number of the withdrawn Notes, or if certificated Notes have not been issued, such withdrawal notice must comply with appropriate Depositary procedures; and

 

(v)   the aggregate Initial Principal Amount, if any, that remains subject to the Fundamental Change Repurchase Notice, which must be an integral multiple of $25.

 

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Payment of the Fundamental Change Repurchase Price for a Note for which a Fundamental Change Repurchase Notice has been delivered and not withdrawn is conditioned upon book-entry transfer or delivery of the Note, together with necessary endorsements, to the Paying Agent at its corporate trust office in the Borough of Manhattan, The City of New York, or any other office of the Paying Agent, at any time after delivery of the Fundamental Change Repurchase Notice.  Payment of the Fundamental Change Repurchase Price for the Note will be made promptly following the later of the Fundamental Change Repurchase Date and the time of book-entry transfer or delivery of the Note.  If the Paying Agent holds money sufficient to pay, on the Fundamental Change Repurchase Date, the Fundamental Change Repurchase Price of the Note, then, as of the Fundamental Change Repurchase Date:

 

(A)       the Note shall cease to be Outstanding and Accretion Amounts shall cease to accrue; and

 

(B)        all other rights of the Holder shall terminate (other than the right to receive the Fundamental Change Repurchase Price upon delivery of the Note, together with necessary endorsements).

 

This shall be the case whether or not book-entry transfer of the Notes is made and whether or not the Notes are delivered to the Paying Agent.

 

The obligation of the Co-Issuers to make a repurchase in the event of a Fundamental Change will be satisfied if a third party makes an offer to repurchase Notes in the manner and at the times and otherwise in compliance in all material respects with the requirements applicable to a Fundamental Change repurchase made by the Co-Issuers and purchases all Notes validly tendered and not withdrawn for which a Fundamental Change Repurchase Notice has been delivered and not withdrawn.

 

The Paying Agent shall promptly notify the Co-Issuers of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.

 

(e)           Notwithstanding the foregoing, no Notes may be repurchased by the Co-Issuers at the option of the Holders upon a Fundamental Change if there has occurred and is continuing an Event of Default other than an Event of Default that is cured by the payment of the Fundamental Change Repurchase Price.

 

Section 4.02.  Notes Repurchased in Part.   Upon presentation of any Notes repurchased only in part, the Co-Issuers shall execute and the Trustee shall authenticate and make available for delivery to the Holder thereof, at the expense of the Co-Issuers, a new Note or Notes, of any authorized denomination, in aggregate Initial Principal Amount equal to the unrepurchased portion of the Notes presented.

 

Section 4.03.  Covenant to Comply with Securities Laws Upon Repurchase of Notes.   The Co-Issuers will, to the extent applicable, comply with the provisions of Rule 13e-4 and any other tender offer rules under the Exchange Act that may be applicable at the time of the offer to repurchase the Notes, file the related Schedule TO or any other schedule required in connection with any offer by the Co-Issuers to repurchase the Notes and comply with all other federal and state securities laws in connection with any offer by the Co-Issuers to repurchase the Notes.

 

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ARTICLE 5
COVENANTS

 

Section 5.01 .  Replacement of Covenants in Base Indenture; Payment of Accreted Principal Amount.  Solely for purposes of the Notes, Article Ten of the Base Indenture shall be deleted and replaced in its entirety by this Article 5.  The Co-Issuers covenant and agree for the benefit of the Holders to duly and punctually pay the aggregate Accreted Principal Amount of the Notes on the Maturity Date or on such earlier date as may be specified in accordance with the terms of the Notes and this Indenture.

 

Section 5.02 .  Maintenance of Office or Agency.  The Co-Issuers shall maintain in the Borough of Manhattan, The City of New York, an office or agency where Notes may be presented or surrendered for payment, where Notes may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Co-Issuers in respect of the Notes and this Indenture may be served.  The designated office of the Trustee shall be such office or agency of the Co-Issuers, unless the Co-Issuers shall designate and maintain some other office or agency for one or more of such purposes.  The Co-Issuers shall give prompt written notice to the Trustee of any change in the location of any such office or agency.  If at any time the Co-Issuers shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and each Co-Issuer hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands.

 

The Co-Issuers may also from time to time designate one or more other offices or agencies (in or outside of the Borough of Manhattan, The City of New York) where the Notes may be presented or surrendered for any or all such purposes and may from time to time rescind any such designation; provided, however , that no such designation or rescission shall in any manner relieve the Co-Issuers of their obligation to maintain an office or agency in the Borough of Manhattan, The City of New York for such purposes.  The Co-Issuers shall give prompt written notice to the Trustee of any such designation or rescission and any change in the location of any such other office or agency.

 

Section 5.03 .  Money For Notes Payments to be Held in Trust.  If either Co-Issuer shall at any time act as its own Paying Agent, it shall, on or before each due date of the principal of (or premium, if any) or interest on any of the Notes, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal of (or premium, if any) or interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and shall promptly notify the Trustee of its action or failure so to act.

 

Whenever the Co-Issuers shall have one or more Paying Agents for the Notes, they shall, on or before each due date of the principal of (or premium, if any) or interest on any Notes, deposit with a Paying Agent a sum sufficient to pay the principal (and premium, if any) or interest so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal, premium or interest, and (unless such Paying Agent is the Trustee) the Co-Issuers shall promptly notify the Trustee of such action or any failure so to act.

 

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The Co-Issuers shall cause each Paying Agent (other than the Trustee) to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent shall:

 

(a)           hold all sums held by it for the payment of the principal of (and premium, if any) or interest on Notes in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided;

 

(b)           give the Trustee notice of any default by the Co-Issuers (or any other obligor upon the Notes) in the making of any payment of principal (and premium, if any) or interest; and

 

(c)           at any time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.

 

The Co-Issuers may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Co-Issuer Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Co-Issuers or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Co-Issuers or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such sums.

 

Any money deposited with the Trustee or any Paying Agent, or then held by the Co-Issuers, in trust for the payment of the principal of (or premium, if any) or interest on any Note and remaining unclaimed for two years after such principal, premium or interest has become due and payable shall be paid to the Co-Issuers on Co-Issuer Request, or (if then held by the Co-Issuers) shall be discharged from such trust; and the Holder of such Note shall thereafter, as an unsecured general creditor, look only to the Co-Issuers for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Co-Issuers as trustees thereof, shall thereupon cease; provided, however , that the Trustee or such Paying Agent, before being required to make any such repayment, shall at the expense of the Co-Issuers cause to be published once, in a newspaper published in the English language, customarily published on each Business Day and of general circulation in the Borough of Manhattan, The City of New York, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to the Co-Issuers.

 

Section 5.04 .  Corporate Existence.  Subject to Article Eight, each Co-Issuer shall do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence and that of each Restricted Subsidiary and its corporate rights (charter and statutory) and franchises and that of each Restricted Subsidiary; provided, however , that neither Co-Issuer shall be required to preserve any such right or franchise if its Board of Directors determines that the preservation thereof is no longer desirable in the conduct of the business of the Co-Issuers and their Subsidiaries as a whole.

 

Section 5.05 .  Payment of Taxes and Other Claims.  Each Co-Issuer shall pay or discharge or cause to be paid or discharged, before the same shall become delinquent, (a) all

 

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material taxes, assessments and governmental charges levied or imposed upon such Co-Issuer or any Subsidiary or upon the income, profits or property of such Co-Issuer or any Subsidiary and (b) all lawful claims for labor, materials and supplies, which, if unpaid, might by law become a lien upon the property of such Co-Issuer or any Subsidiary; provided, however , that the Co-Issuers shall not be required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or claim whose amount, applicability or validity is being contested in good faith by appropriate proceedings and for which appropriate reserves, if necessary (in the good faith judgment of management of each Co-Issuer), are being maintained in accordance with GAAP.

 

Section 5.06 .  Maintenance of Properties.  The Co-Issuers shall cause all properties owned by the Co-Issuers or any Restricted Subsidiary or used or held for use in the conduct of its business or the business of any Restricted Subsidiary to be maintained and kept in good condition, repair and working order and supplied with all necessary equipment and shall cause to be made all necessary repairs, renewals, replacements, betterments and improvements thereof, all as in the judgment of the Co-Issuers may be necessary so that the business carried on in connection therewith may be properly and advantageously conducted at all times; provided, however , that nothing in this Section shall prevent the Co-Issuers from discontinuing the maintenance of any of such properties if such discontinuance is, in the judgment of the Co-Issuers, desirable in the conduct of its business or the business of any Restricted Subsidiary.

 

Section 5.07 .  Insurance.

 

(a)           The Co-Issuers shall at all times keep all of their, and their respective Subsidiaries, properties which are of an insurable nature insured with insurers, believed by the Co-Issuers to be responsible, against loss or damage to the extent that property of similar character is usually so insured by corporations similarly situated and owning like properties.

 

(b)           The Co-Issuers and Guarantors (i) shall cause any insurance policies covering any Collateral to be endorsed or otherwise amended to include a customary lender’s loss payable endorsement, in form and substance reasonably satisfactory to the Trustee, which endorsement shall provide that, from and after the Issue Date, if the insurance carrier shall have received written notice from the Trustee of the occurrence of an Event of Default, the insurance carrier shall pay all proceeds otherwise payable to the Co-Issuers and the Guarantors under such policies directly to the Trustee; (ii) shall cause all such policies to provide that neither the Co-Issuers, the Trustee nor any other party shall be a coinsurer thereunder and to contain a “Replacement Cost Endorsement,” without any deduction for depreciation, and such other provisions as the Trustee may reasonably require from time to time to protect their interests; deliver original or certified copies of all such policies to the Trustee; cause each such policy to provide that it shall not be canceled, modified or not renewed (x) by reason of nonpayment of premium upon not less than 10 days’ prior written notice thereof by the insurer to the Trustee (giving the Trustee the right to cure defaults in the payment of premiums) or (y) for any other reason upon not less than 30 days’ prior written notice thereof by the insurer to the Trustee; and (iii) shall deliver to the Trustee, prior to the cancellation, modification or nonrenewal of any such policy of insurance, a draft copy of a renewal or replacement policy (or other evidence of renewal of a policy previously delivered to the Trustee) and reasonably promptly thereafter deliver a duplicate original copy of

 

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such policy together with evidence satisfactory to the Trustee of payment of the premium therefor.

 

(c)           The Co-Issuers and the Guarantors shall notify the Trustee promptly whenever any separate insurance concurrent in form or contributing in the event of loss with that required to be maintained under this covenant is taken out by the Co-Issuers or any Guarantor, and promptly deliver to the Trustee a duplicate original copy of such policy or policies.

 

Section 5.08 .  Statement by Officers as to Default.  (a) The Co-Issuers shall deliver to the Trustee within 120 days after the end of each fiscal year, an Officers’ Certificate stating that a review of the activities of the Co-Issuers and the Restricted Subsidiaries during the preceding quarter or the preceding fiscal year, as the case may be, has been made under the supervision of the signing officers with a view to determining whether it has kept, observed, performed and fulfilled, and has caused each of the Restricted Subsidiaries to keep, observe, perform and fulfill its obligations under this Indenture and further stating, as to each such officer signing such certificate, that, to the best of his or her knowledge, the Co-Issuers during such preceding quarter or the preceding fiscal year, as the case may be, have kept, observed, performed and fulfilled, and have caused each of the Restricted Subsidiaries to keep, observe, perform and fulfill each and every such covenant contained in this Indenture and no Default or Event of Default occurred during such quarter or year, as the case may be, and at the date of such certificate there is no Default or Event of Default which has occurred and is continuing or, if such signers do know of such Default or Event of Default, the certificate shall describe its status, with particularity and that, to the best of his or her knowledge, no event has occurred and remains by reason of which payments on the account of the principal of or interest, if any, on the Notes is prohibited or if such event has occurred, a description of the event and what action each is taking or proposes to take with respect thereto.  The Officers’ Certificate shall also notify the Trustee should the Co-Issuers elect to change the manner in which they fix their fiscal year-end.  For purposes of this Section 5.08, such compliance shall be determined without regard to any period of grace or requirement of notice under this Indenture.

 

(b)           (i) When any Default or Event of Default has occurred and is continuing under this Indenture, or (ii) if the trustee for or the holder of any other evidence of Indebtedness of either Co-Issuer or any Restricted Subsidiary gives any notice or takes any other action with respect to a claimed default (other than with respect to Indebtedness in the principal amount of less than $25,000,000), the Co-Issuers shall deliver to the Trustee by registered or certified mail or facsimile transmission an Officers’ Certificate specifying such event, notice or other action within five Business Days of its occurrence.

 

Section 5.09 .  Reports and other Information.  Section 704 of the Base Indenture shall not apply to the Notes.