SECOND SUPPLEMENTAL INDENTURE

SECOND SUPPLEMENTAL INDENTURE

 

SECOND SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of January 31, 2013, among VERSO PAPER HOLDINGS LLC, a Delaware limited liability company (the “Company”), VERSO PAPER INC., a Delaware corporation (together with the Company, the “Issuers”), the GUARANTORS party hereto (the “Guarantors”) and WILMINGTON TRUST, NATIONAL ASSOCIATION, as trustee under the Indenture referred to below (the “Trustee”).

 

W I T N E S S E T H :

 

WHEREAS the Issuers and the Guarantors have heretofore executed and delivered to the Trustee an indenture (as amended, supplemented or otherwise modified through the date hereof, the “Indenture”), dated as of March 21, 2012, providing for the issuance of the Issuers’ 11.75% Senior Secured Notes due 2019 (the “Securities”), initially in the aggregate principal amount of $345,000,000 (the “Original Securities”);

 

WHEREAS the issuance and delivery of the Additional Securities in the aggregate principal amount of $72,882,000 (the “New Securities”) have been authorized by resolutions adopted by the Boards of Directors of the Issuers;

 

WHEREAS the New Securities shall be Additional Securities under the Indenture;

 

WHEREAS the Incurrence of the Indebtedness represented by the New Securities is permitted as of the date hereof by Section 4.03 and Section 4.12 of the Indenture and the New Securities will be issued in compliance with the other applicable provisions of the Indenture;

 

WHEREAS Section 2.01 and Section 9.01 of the Indenture provide that the Issuers, when authorized by a resolution of the Boards of Directors of the Issuers, the Guarantors and the Trustee are authorized to execute and deliver this Supplemental Indenture;

 

WHEREAS the Issuers have complied with all conditions precedent provided for in the Indenture relating to this Supplemental Indenture;

 

WHEREAS the Original Securities and the New Securities will be treated as a single class of Securities for all purposes under the Indenture (as supplemented by this Supplemental Indenture, including, without limitation, waivers, amendments, redemptions and offers to purchase); and

WHEREAS the Issuers have requested that the Trustee execute and deliver this Supplemental Indenture.

 

NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Issuers, the Guarantors and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Securities as follows:

 

SECTION 1.     Defined Terms. As used in this Supplemental Indenture, terms defined in the Indenture or in the preamble or recital hereto are used herein as therein defined, except that the term “Holders” in this Supplemental Indenture shall refer to the term “Holders” as defined in the Indenture and the Trustee acting on behalf of and for the benefit of such holders of Securities.  The words “herein,” “hereof” and “hereby” and other words of similar import used in this Supplemental Indenture refer to this Supplemental Indenture as a whole and not to any particular section hereof.

 

SECTION 2.     Terms of New Securities.  The following terms relating to the New Securities are hereby established:

 

(a)

Principal Amount.  The aggregate principal amount of the New Securities that may be authenticated and delivered under the Indenture, as amended hereby, shall be $72,882,000.

 

(b)

Issue Price and Issuance Date.  The issue price of the New Securities shall be 100% of the aggregate principal amount of the New Securities, and the issuance date of the New Securities shall be January 31, 2013.  The date from which interest shall accrue on the New Securities shall be January 15, 2013.

 

(c)

The New Securities shall be issuable in whole or in part in the form of one or more Global Securities.  The depositary for such Global Securities shall be The Depository Trust Company.

 

(d)

The New Securities shall have the other terms set forth in the form of global security attached hereto as Exhibit A.

 

(e)

The New Securities shall be considered Additional Securities issued pursuant to Section 2.01 of the Indenture.

 

(f)

The Registration Rights Agreement with respect to the New Securities shall refer to the Registration Rights Agreement, dated January 31, 2013, among the Issuers, the Guarantors and Citigroup Global Markets Inc.

 

SECTION 3.     Form of the New Securities.  The New Securities and the Trustee’s certificate of authentication shall be substantially in the form of Exhibit A attached hereto. The New Securities shall be executed on behalf of each Issuer by an Officer and authenticated by the Trustee pursuant to Section 2.03 of the Indenture.

 

SECTION 4.     Ratification of Indenture; Supplemental Indentures Part of Indenture.  Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect.  This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Securities heretofore or hereafter authenticated and delivered shall be bound hereby.

 

SECTION 5.     Governing Law.  THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

 

 

SECTION 6.     Trustee Makes No Representation.  The Trustee makes no representation as to the validity or sufficiency of this Supplemental Indenture.

 

SECTION 7.     Counterparts.  The parties may sign any number of copies of this Supplemental Indenture.  Each signed copy shall be an original, but all of them together represent the same agreement.

 

SECTION 8.     Effect of Headings.  The Section headings herein are for convenience only and shall not effect the construction thereof.

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first above written.

 

	WILMINGTON TRUST, NATIONAL
	ASSOCIATION, AS TRUSTEE
	By:         /s/ Jane Schweiger
	Name:  Jane Schweiger
	Title: Vice President

EXHIBIT A

 

[FORM OF FACE OF GLOBAL SECURITY]

 

[Global Securities Legend]

 

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

 

TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.

 

[Restricted Securities Legend]

 

THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND THIS NOTE MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT THE SELLER OF THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.

 

 

THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (I) IN THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (II) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (III) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF APPLICABLE) OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR (IV) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS NOTE FROM IT OF THE RESALE RESTRICTIONS SET FORTH IN CLAUSE (A) ABOVE. PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (III) ABOVE, THE COMPANY RESERVES THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY RULE 144 EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

 

 

THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION ORIGINALLY EXEMPT FROM REGISTRATION UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE TRANSFERRED IN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY U.S. PERSON EXCEPT PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND ALL APPLICABLE STATE SECURITIES LAWS. TERMS USED ABOVE HAVE THE MEANINGS GIVEN TO THEM IN REGULATION S UNDER THE SECURITIES ACT.

Each Definitive Security shall bear the following additional legend:

 

IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.

 

[FORM OF GLOBAL SECURITY]

 

No.	$__________

 

11.75% Senior Secured Notes due 2019

 

	CUSIP No. [•]
	ISIN No.  [•]

 

VERSO PAPER HOLDINGS LLC, a Delaware limited liability corporation, and VERSO PAPER INC., a Delaware corporation, jointly and severally promise to pay to [          ], or its registered assigns, the principal sum of [              ] Dollars [, or such other amount as is listed on the Schedule of Increases or Decreases in Global Security attached hereto]1 on January 15, 2019; provided that, if as of June 17, 2016, which date is 45 days prior to the stated maturity date of the Issuers’ 11.375% Senior Subordinated Notes due 2016 (the “Applicable Date”), more than $100.0 million principal amount of the Issuers’ 11.375% Senior Subordinated Notes due 2016 remain outstanding, then this Security shall mature on the Applicable Date.

 

Interest Payment Dates:  January 15 and July 15, commencing July 15, 2013.

 

Record Dates:  January 1 and July 1

 

Additional provisions of this Security are set forth on the other side of this Security.

 

IN WITNESS WHEREOF, the parties have caused this instrument to be duly executed.

 

AUTHENTICATION

 

as Trustee, certifies that this is

one of the Securities

referred to in the Indenture.

 

By:       ___________________________

Authorized Signatory

 

Dated: ___________________________

*/	If the Security is to be issued in global form, add the Global Securities Legend and the attachment from Exhibit A captioned “TO BE ATTACHED TO GLOBAL SECURITIES - SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY”.

 

[FORM OF REVERSE SIDE OF GLOBAL SECURITY]

 

11.75% Senior Secured Notes due 2019

 

 

VERSO PAPER HOLDINGS LLC, a Delaware limited liability corporation (such corporation, and its successors and assigns under the Indenture hereinafter referred to, being herein called the “Company”) and VERSO PAPER INC., a Delaware corporation and wholly-owned subsidiary of the Company (“Finance Co.” and, together with the Company, the “Issuers”), jointly and severally promise to pay interest on the principal amount of this Security at the rate per annum shown above.  The Issuers shall pay interest semiannually on January 15 and July 15 of each year, commencing July 15, 2013 and at maturity.  Interest on the Securities shall accrue from January 15, 2013. Interest shall be computed on the basis of a 360-day year of twelve 30-day months.  The Issuers shall pay interest on overdue principal at the rate borne by the Securities, and they shall pay interest on overdue installments of interest at the same rate to the extent lawful.

 

Registration Rights Agreement.  The Holder of this Security is entitled to the benefits of a Registration Rights Agreement, dated as of January 31, 2013, among the Issuers, the Guarantors and the Exchange Agent (on behalf of the Holdco Lenders, as defined in the Registration Rights Agreement).

 

 

The Issuers shall pay interest on the Securities (except defaulted interest) to the Persons who are registered Holders at the close of business on the January 1 or July 1 next preceding the interest payment date even if Securities are canceled after the record date and on or before the interest payment date (whether or not a Business Day).  Holders must surrender Securities to the Paying Agent to collect principal payments.  The Issuers shall pay principal, premium, if any, and interest in money of the United States of America that at the time of payment is legal tender for payment of public and private debts.  Payments in respect of the Securities represented by a Global Security (including principal, premium, if any, and interest) shall be made by wire transfer of immediately available funds to the accounts specified by The Depository Trust Company or any successor depositary.  The Issuers shall make all payments in respect of a certificated Security (including principal, premium, if any, and interest) at the office of the Paying Agent, except that, at the option of the Issuers, payment of interest may be made by mailing a check to the registered address of each Holder thereof; provided, however, that payments on the Securities may also be made, in the case of a Holder of at least $1,000,000 aggregate principal amount of Securities, by wire transfer to a U.S. dollar account maintained by the payee with a bank in the United States if such Holder elects payment by wire transfer by giving written notice to the Trustee or Paying Agent to such effect designating such account no later than 30 days immediately preceding the relevant due date for payment (or such other date as the Trustee may accept in its discretion).

 

 

 

Initially, Wilmington Trust, National Association (the “Trustee”) will act as Paying Agent and Registrar.  The Issuers may appoint and change any Paying Agent or Registrar without notice.  The Company or any of its domestically incorporated Wholly Owned Subsidiaries may act as Paying Agent or Registrar.

 

 

The Issuers issued the Securities under an Indenture dated as of March 21, 2012 (as supplemented to the date hereof, the “Indenture”), among the Issuers, the Guarantors and the Trustee.  The terms of the Securities include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb) as in effect on the date of the Indenture (the “TIA”).  Terms defined in the Indenture and not defined herein have the meanings ascribed thereto in the Indenture.  The Securities are subject to all terms and provisions of the Indenture, and the Holders (as defined in the Indenture) are referred to the Indenture and the TIA for a statement of such terms and provisions.  In the event of any conflict between the provisions of this Security and (a) the provisions of the Indenture, the provisions of the Indenture shall govern and be controlling (other than with respect to pre-issuance interest), (b) the provisions of the Senior Lien Intercreditor Agreement or the First-Priority Intercreditor Agreement, the Senior Lien Intercreditor Agreement or the First-Priority Intercreditor Agreement (as applicable) shall govern and be controlling and (c) the provisions of any Security Document, the provisions of such Security Document shall govern and be controlling.

 

The Securities are senior secured obligations of the Issuers.  This Security is one of the Additional Securities referred to in the Indenture.  The Securities include the Original Securities, any Additional Securities and any Exchange Securities issued in exchange for the Original Securities or any Additional Securities pursuant to the Indenture.  The Original Securities, any Additional Securities and any Exchange Securities are treated as a single class of securities under the Indenture.  The Indenture imposes certain limitations on the ability of the Company and its Restricted Subsidiaries to, among other things, make certain Investments and other Restricted Payments, pay dividends and other distributions, incur Indebtedness, enter into consensual restrictions upon the payment of certain dividends and distributions by such Restricted Subsidiaries, issue or sell shares of capital stock of the Company and such Restricted Subsidiaries, enter into or permit certain transactions with Affiliates, create or incur Liens and make Asset Sales.  The Indenture also imposes limitations on the ability of the Issuers and each Guarantor to consolidate or merge with or into any other Person or convey, transfer or lease all or substantially all of its property.

 

To guarantee the due and punctual payment of the principal and interest on the Securities and all other amounts payable by the Issuers under the Indenture and the Securities when and as the same shall be due and payable, whether at maturity, by acceleration or otherwise, according to the terms of the Securities and the Indenture, the Guarantors have, jointly and severally, unconditionally guaranteed the Guaranteed Obligations on a first priority senior secured basis pursuant to the terms of the Indenture.

 

 

 

Except as set forth in the following three paragraphs, the Securities shall not be redeemable at the option of the Issuers prior to January 15, 2015.  On or after January 15, 2015, the Securities shall be redeemable at the option of the Issuers, in whole at any time or in part from time to time, upon on not less than 30 nor more than 60 days’ prior notice mailed by the Issuers by first-class mail to each Holder’s registered address, at the following redemption prices (expressed as a percentage of principal amount), plus accrued and unpaid interest and additional interest, if any, to the redemption date (subject to the right of the Holders of record on the relevant record date to receive interest due on the relevant interest payment date), if redeemed during the periods set forth below:

 

Period	Redemption Price
January 15, 2015 through January 14, 2016	108.813%
January 15, 2016 through January 14, 2017	105.875%
January 15, 2017 through January 14, 2018	102.938%
January 15, 2018 and thereafter	100%

 

In addition, prior to January 15, 2015, the Issuers may redeem the Securities at their option, in whole at any time or in part from time to time, upon not less than 30 nor more than 60 days’ prior notice mailed by the Issuers by first-class mail to each Holder’s registered address, at a redemption price equal to 100% of the principal amount of the Securities redeemed, plus the Applicable Premium as of, and accrued and unpaid interest and additional interest, if any, to, the applicable redemption date (subject to the right of the Holders of record on the relevant record date to receive interest due on the relevant interest payment date).

 

Notwithstanding the foregoing, at any time and from time to time on or prior to January 15, 2015, the Issuers may redeem in the aggregate up to 35% of the original aggregate principal amount of the Securities (calculated after giving effect to any issuance of Additional Securities), with the net cash proceeds of one or more Equity Offerings made after the Issue Date (1) by the Company or (2) by any direct or indirect parent of the Company, in each case, to the extent the net cash proceeds thereof are contributed to the common equity capital of the Company or used to purchase Capital Stock (other than Disqualified Stock) of the Company from it, at a redemption price equal to 111.75%, plus accrued and unpaid interest and additional interest, if any, to the redemption date (subject to the right of the Holders of record on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that at least 50% of the original aggregate principal amount of the Securities (calculated after giving effect to any issuance of Additional Securities) must remain outstanding after each such redemption; and provided, further, that such redemption shall occur within 90 days after the date on which any such Equity Offering is consummated upon not less than 30 nor more than 60 days’ notice mailed by the Issuers to each Holder being redeemed and otherwise in accordance with the procedures set forth in the Indenture.  Notice of any redemption upon any such Equity Offering may be given prior to the completion thereof, and any such redemption or notice may, at the Issuers’ discretion, be subject to one or more conditions precedent, including, but not limited to, completion of the related Equity Offering.

 

 

In addition, at any time and from time to time prior to January 15, 2015, the Issuers may redeem during each 12-month period commencing with the Issue Date up to 10% of the aggregate principal amount of the Securities issued under the Indenture, including any Additional Securities (but without duplication for Exchange Securities) at its option, from time to time, upon not less than 30 nor more than 60 days’ prior notice mailed by the Issuers by first-class mail to each Holder’s registered address, at a redemption price equal to 103% of the principal amount of the Securities redeemed, plus accrued and unpaid interest and additional interest, if any, to (but not including) the redemption date (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date that is on or prior to the redemption date).

 

 

The Securities are not subject to any sinking fund.

 

 

Notice of redemption will be mailed by first-class mail at least 30 days but not more than 60 days before the redemption date to each Holder of Securities to be redeemed at his, her or its registered address.  Securities in denominations larger than $2,000 may be redeemed in part but only in whole multiples of $1,000 in excess of $2,000.  If money sufficient to pay the redemption price of and accrued and unpaid interest on all Securities (or portions thereof) to be redeemed on the redemption date is deposited with a Paying Agent on or before the redemption date and certain other conditions are satisfied, on and after such date, interest ceases to accrue on such Securities (or such portions thereof) called for redemption.

 

Notwithstanding the Stated Maturity, this Security shall mature on the Applicable Date unless prior to such date, the Company certifies to the Trustee in an Officers’ Certificate that $100.0 million or less in principal amount of the Issuers’ 11.375% Senior Subordinated Notes due 2016 will remain outstanding on the Applicable Date.  Concurrently with delivery of such Officers’ Certificate to the Trustee, the Company shall provide notice to the Holders of the Securities confirming that the Securities shall mature on the Stated Maturity of January 15, 2019.  In the event that this Security shall mature on the Applicable Date in accordance with its terms, the Company shall provide notice of such maturity date to the Holders of the Securities, with a copy to the Trustee.

 

 

Upon the occurrence of a Change of Control, each Holder shall have the right, subject to certain conditions specified in the Indenture, to cause the Issuers to repurchase all or any part of such Holder’s Securities at a purchase price in cash equal to 101% of the principal amount thereof, plus accrued and unpaid interest and additional interest, if any, to the date of repurchase (subject to the right of the Holders of record on the relevant record date to receive interest due on the relevant interest payment date), as provided in, and subject to the terms of, the Indenture.

 

 

In accordance with Section 4.06 of the Indenture, the Issuers will be required to offer to purchase Securities upon the occurrence of certain events.

 

 

These Securities and the Note Guarantees are secured by a security interest in the Collateral pursuant to certain Security Documents.

 

 

The Securities are in registered form, without coupons, in denominations of $2,000 and any integral multiple of $1,000 in excess of $2,000.  A Holder shall register the transfer of or exchange of Securities in accordance with the Indenture.  Upon any registration of transfer or exchange, the Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements or transfer documents and to pay any taxes required by law or permitted by the Indenture.  The Registrar need not register the transfer of or exchange any Securities selected for redemption (except, in the case of a Security to be redeemed in part, the portion of the Security not to be redeemed) or to transfer or exchange any Securities for a period of 15 days prior to a selection of Securities to be redeemed.

 

 

The registered Holder of this Security shall be treated as the owner of it for all purposes.

 

 

If money for the payment of principal or interest remains unclaimed for two years, the Trustee and a Paying Agent shall pay the money back to the Issuers at their written request unless an abandoned property law designates another Person.  After any such payment, the Holders entitled to the money must look to the Issuers for payment as general creditors and the Trustee and a Paying Agent shall have no further liability with respect to such monies.

 

 

Subject to certain conditions, the Issuers at any time may terminate some of or all its obligations under the Securities and the Indenture if the Issuers deposit with the Trustee money or U.S. Government Obligations for the payment of principal and interest on the Securities to redemption or maturity, as the case may be.

 

 

 

Subject to certain exceptions and the provisions of the Senior Lien Intercreditor Agreement, the Senior Lien Intercreditor Agreement, the First-Priority Intercreditor Agreement, the Junior Lien Intercreditor Agreement, each Other Intercreditor Agreement and the Note Documents may be amended with the written consent of the Holders of at least a majority in aggregate principal amount of the outstanding Securities and any past default or compliance with any provisions may be waived with the written consent of the Holders of at least a majority in principal amount of the Securities then outstanding.  Subject to certain exceptions set forth in the Indenture, without the consent of any Holder, the Issuers, Guarantors (as applicable) and the Trustee may amend the Senior Lien Intercreditor Agreement, the First-Priority Intercreditor Agreement, the Junior Lien Intercreditor Agreement, each Other Intercreditor Agreement and the Note Documents (i) to cure any ambiguity, omission, defect or inconsistency; (ii) to provide for the assumption by a Successor Company or Successor Co-Issuer of the obligations of the Issuers under the Indenture and the Securities; (iii) to provide for the assumption by a Successor Guarantor of the obligations of a Guarantor under the Indenture and its Note Guarantee; (iv) to comply with Article 5 of the Indenture; (v) to provide for uncertificated Securities in addition to or in place of certificated Securities (provided that the uncertificated Securities are issued in registered form for purposes of Section 163(f) of the Code, or in a manner such that the uncertificated Securities are described in Section 163(f)(2)(B) of the Code); (vi) to add additional assets as Collateral, (vii) to release Collateral from the Lien pursuant to the Indenture and the Security Documents when permitted or required by the Indenture or the Security Documents; (viii) except as expressly permitted by the Indenture, to add additional Note Guarantees with respect to the Securities or to secure the Securities; (ix) to add additional covenants of the Issuers for the benefit of the Holders or to surrender any right or power conferred in the Indenture upon the Issuers; (x) to comply with any requirement of the SEC in connection with qualifying, or maintaining the qualification of, the Indenture under the TIA; (xi) to make any change that does not adversely affect the rights of any Holder; or (xii) to provide for the issuance of the Exchange Securities or Additional Securities.   In addition, without notice to or consent of any Holder, the Security Documents may be amended to reflect the addition of holders of additional Secured Indebtedness to the extent the grant of Liens to secure such Indebtedness is permitted by the Indenture.

 

 

If an Event of Default occurs (other than an Event of Default relating to certain events of bankruptcy, insolvency or reorganization of the Issuers or a Significant Subsidiary) with respect to the Securities and is continuing, the Trustee or the Holders of at least 25% in principal amount of the outstanding Securities, in each case, by notice to the Issuers and a copy to the Trustee, may declare the principal of, premium, if any, and accrued but unpaid interest on all the Securities to be due and payable.  Upon such a declaration, such principal and interest shall be due and payable immediately.  If an Event of Default relating to certain events of bankruptcy, insolvency or reorganization of the Issuers or a Significant Subsidiary occurs, the principal of, premium, if any, and interest on all the Securities shall become immediately due and payable without any declaration or other act on the part of the Trustee or any Holders.  Under certain circumstances, the Holders of a majority in principal amount of the outstanding Securities may rescind any such acceleration with respect to the Securities and its consequences.

 

If an Event of Default occurs and is continuing, the Trustee shall be under no obligation to exercise any of the rights or powers under the Indenture at the request or direction of any of the Holders unless such Holders have offered to the Trustee indemnity or security satisfactory to it against any loss, liability or expense and certain other conditions are complied with.  Except to enforce the right to receive payment of principal, premium (if any) or interest when due, no Holder may pursue any remedy with respect to the Indenture or the Securities unless (i) such Holder has previously given the Trustee notice that an Event of Default is continuing, (ii) the Holders of at least 25% in principal amount of the outstanding Securities have requested the Trustee in writing to pursue the remedy, (iii) such Holders have offered the Trustee security or indemnity satisfactory to it against any loss, liability or expense, (iv) the Trustee has not complied with such request within 60 days after the receipt of the request and the offer of security or indemnity and (v) the Holders of a majority in principal amount of the outstanding Securities have not given the Trustee a direction inconsistent with such request within such 60-day period.  Subject to certain restrictions, the Holders of a majority in principal amount of the outstanding Securities are given the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or of exercising any trust or power conferred on the Trustee.  The Trustee, however, may refuse to follow any direction that conflicts with law or the Indenture or that the Trustee determines is unduly prejudicial to the rights of any other Holder or that would involve the Trustee in personal liability.  Prior to taking any action under the Indenture, the Trustee shall be entitled to indemnification satisfactory to it in its sole discretion against all losses and expenses caused by taking or not taking such action.

 

 

 

Subject to certain limitations imposed by the TIA, the Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Securities and may otherwise deal with and collect obligations owed to it by the Issuers or their Affiliates and may otherwise deal with the Issuers or their Affiliates with the same rights it would have if it were not Trustee.

 

 

No director, officer, employee, incorporator or holder of any Equity Interests in the Issuers or of any Guarantor or any direct or indirect parent corporation, as such, shall have any liability for any obligations of the Issuers or the Guarantors under the Securities, the Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation.  Each Holder of Securities by accepting a Security waives and releases all such liability.  The waiver and release are part of the consideration for issuance of the Securities.  The waiver may not be effective to waive liabilities under the federal securities laws.

 

 

This Security shall not be valid until an authorized signatory of the Trustee (or an authenticating agent) manually signs the certificate of authentication on the other side of this Security.

 

 

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

 

 

 

 

 

The Issuers have caused CUSIP numbers and ISINs to be printed on the Securities and has directed the Trustee to use CUSIP numbers and ISINs in notices of redemption as a convenience to the Holders.  No representation is made as to the accuracy of such numbers either as printed on the Securities or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.

 

 

ASSIGNMENT FORM

 

To assign this Security, fill in the form below:

 

I or we assign and transfer this Security to:

 

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

 

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

 

and irrevocably appoint                                 agent to transfer this Security on the books of the Issuers.  The agent may substitute another to act for him.

 

 

 

Date: ____________________________                Your Signature: ____________________________

 

 

Sign exactly as your name appears on the other side of this Security.

 

 

 

Signature Guarantee:

 

Date:
Signature must be guaranteed by a participant in a recognized signature guarantee medallion program or other signature guarantor program reasonably acceptable to the Trustee			Signature of Signature Guarantee

 

CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR

 

REGISTRATION OF TRANSFER RESTRICTED SECURITIES

 

This certificate relates to $_________ principal amount of Securities held in (check applicable space) ____ book-entry or _____ definitive form by the undersigned.

 

The undersigned (check one box below):

 

o

has requested the Trustee by written order to deliver in exchange for its beneficial interest in the Global Security held by the Depository a Security or Securities in definitive, registered form of authorized denominations and an aggregate principal amount equal to its beneficial interest in such Global Security (or the portion thereof indicated above);

 

o	has requested the Trustee by written order to exchange or register the transfer of a Security or Securities.

 

In connection with any transfer of any of the Securities evidenced by this certificate occurring prior to the expiration of the period referred to in Rule 144(k) under the Securities Act, the undersigned confirms that such Securities are being transferred in accordance with its terms:

 

TO BE COMPLETED BY PURCHASER IF (4) ABOVE IS CHECKED.

 

The undersigned represents and warrants that it is purchasing this Security for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act of 1933, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Issuers as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the undersigned’s foregoing representations in order to claim the exemption from registration provided by Rule 144A.

 

 

Dated:
			NOTICE:  To be executed by an executive officer

[TO BE ATTACHED TO GLOBAL SECURITIES]

 

SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY

 

The initial principal amount of this Global Security is $______________.  The following increases or decreases in this Global Security have been made:

 

Date of Exchange		Amount of decrease in Principal Amount of this Global Security		Amount of increase in Principal Amount of this Global Security		Principal amount of this Global Security following such decrease or increase		Signature of authorized signatory of Trustee or Securities Custodian

 

 

 

Asset Sale  o	Change of Control  o

 

 

Date:			Your Signature:
				(Sign exactly as your name
				appears on the other side of
				this Security)