EXECUTION VERSION TOWNSQUARE MEDIA, INC. AND WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee 6.500% Senior Notes due 2023 INDENTURE Dated as of April 1, 2015
![Page 1](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi001.jpg)
EXECUTION VERSION TOWNSQUARE MEDIA, INC. AND WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee 6.500% Senior Notes due 2023 INDENTURE Dated as of April 1, 2015
![Page 4](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi004.jpg)
Page -iv- SECTION 7.12. Trustee’s Application for Instruction from the Company .......................................................... 93 ARTICLE VIII LEGAL DEFEASANCE AND COVENANT DEFEASANCE SECTION 8.1. Option to Effect Legal Defeasance or Covenant Defeasance; Defeasance ................................ 93 SECTION 8.2. Legal Defeasance and Discharge ............................................................................................... 93 SECTION 8.3. Covenant Defeasance ................................................................................................................. 93 SECTION 8.4. Conditions to Legal or Covenant Defeasance ............................................................................ 94 SECTION 8.5. Deposited Money and U.S. Government Obligations to be Held in Trust; Other Miscellaneous Provisions ............................................................................................ 95 SECTION 8.6. Repayment to the Company ....................................................................................................... 95 SECTION 8.7. Reinstatement ............................................................................................................................. 95 ARTICLE IX AMENDMENTS SECTION 9.1. Without Consent of Holders ....................................................................................................... 96 SECTION 9.2. With Consent of Holders ............................................................................................................ 97 SECTION 9.3. Compliance with this Indenture ................................................................................................. 98 SECTION 9.4. Revocation and Effect of Consents and Waivers ....................................................................... 98 SECTION 9.5. Notation on or Exchange of Notes ............................................................................................. 98 SECTION 9.6. Trustee to Sign Amendments ..................................................................................................... 98 ARTICLE X GUARANTEE SECTION 10.1. Guarantee ................................................................................................................................... 98 SECTION 10.2. Limitation on Liability; Termination, Release and Discharge. ................................................ 100 SECTION 10.3. Right of Contribution ............................................................................................................... 101 SECTION 10.4. No Subrogation ........................................................................................................................ 101 ARTICLE XI SATISFACTION AND DISCHARGE SECTION 11.1. Satisfaction and Discharge ....................................................................................................... 101 SECTION 11.2. Application of Trust Money ..................................................................................................... 102 ARTICLE XII MISCELLANEOUS SECTION 12.1. Notices ..................................................................................................................................... 102 SECTION 12.2. Certificate and Opinion as to Conditions Precedent ................................................................. 103 SECTION 12.3. Statements Required in Certificate or Opinion ......................................................................... 103 SECTION 12.4. When Notes Disregarded.......................................................................................................... 104 SECTION 12.5. Rules by Trustee, Paying Agent and Registrar ......................................................................... 104 SECTION 12.6. Legal Holidays ......................................................................................................................... 104 SECTION 12.7. Governing Law ......................................................................................................................... 104 SECTION 12.8. Jurisdiction ............................................................................................................................... 104 SECTION 12.9. Waivers of Jury Trial ................................................................................................................ 104
![Page 5](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi005.jpg)
Page -v- SECTION 12.10. USA PATRIOT Act ................................................................................................................. 104 SECTION 12.11. No Recourse Against Others .................................................................................................... 105 SECTION 12.12. Successors ................................................................................................................................ 105 SECTION 12.13. Multiple Originals .................................................................................................................... 105 SECTION 12.14. Table of Contents; Headings .................................................................................................... 105 SECTION 12.15. Force Majeure .......................................................................................................................... 105 SECTION 12.16. Severability .............................................................................................................................. 105 EXHIBIT A Form of Global Restricted Note EXHIBIT B Form of Supplemental Indenture
![Page 6](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi006.jpg)
3997236v4 INDENTURE dated as of April 1, 2015, among TOWNSQUARE MEDIA, INC. (the “Company”) and WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, as trustee (the “Trustee”). W I T N E S S E T H WHEREAS, the Company has duly authorized the execution and delivery of this Indenture to provide for the issuance of (i) its 6.500% Senior Notes due 2023 issued on the date hereof (the “Initial Notes”) and (ii) any addi- tional Notes (“Additional Notes” and, together with the Initial Notes, the “Notes”) that may be issued after the Issue Date. WHEREAS, the Company has duly authorized the execution and delivery of this Indenture; WHEREAS, all things necessary (i) to make the Notes, when executed and duly issued by the Company and authenticated and delivered hereunder, the valid obligations of the Company, and (ii) to make this Indenture a valid agreement of the Company have been done; and NOW, THEREFORE, in consideration of the premises and the purchase of the Notes by the Holders there- of, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders, as follows: ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE SECTION 1.1. Definitions. “Acquired Indebtedness” means Indebtedness (1) of a Person or any of its Subsidiaries existing at the time such Person becomes a Restricted Subsidiary, (2) assumed in connection with the acquisition of assets from such Person, in each case whether or not Incurred by such Person in connection with such Person becoming a Restricted Subsidiary of the Company or such acquisition or (3) of a Person at the time such Person merges or amalgamates with or into or consolidates or otherwise combines with the Company or any Restricted Subsidiary. Acquired In- debtedness shall be deemed to have been Incurred, with respect to clause (1) of the preceding sentence, on the date such Person becomes a Restricted Subsidiary and, with respect to clause (2) of the preceding sentence, on the date of consummation of such acquisition of assets and, with respect to clause (3) of the preceding sentence, on the date of the relevant merger, amalgamation, consolidation or other combination. “Additional Assets” means: (1) any property or assets (other than Capital Stock) used or to be used by the Company, a Restricted Subsidiary or otherwise useful in a Similar Business (it being understood that capital expendi- tures on property or assets already used in a Similar Business or to replace any property or assets that are the subject of such Asset Disposition shall be deemed an investment in Additional Assets); (2) the Capital Stock of a Person that is engaged in a Similar Business and becomes a Re- stricted Subsidiary as a result of the acquisition of such Capital Stock by the Company or a Restricted Sub- sidiary of the Company; or (3) Capital Stock constituting a minority interest in any Person that at such time is a Restrict- ed Subsidiary of the Company. “Affiliate” of any specified Person means any other Person, directly or indirectly, controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “con- trol” when used with respect to any Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
![Page 7](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi007.jpg)
-2- “AI” means an “accredited investor” as described in Rule 501(a)(4) under the Securities Act. “Applicable Premium” means the greater of (A) 1.0% of the principal amount of such Note and (B) on any redemption date, the excess (to the extent positive) of: (a) the present value at such redemption date of (i) the redemption price of such Note at April 1, 2018 (such redemption price (expressed in percentage of principal amount) being set forth in the table under Section 5.7(d) (excluding accrued but unpaid interest, if any)), plus (ii) all required interest payments due on such Note to and including such date set forth in clause (i) (excluding accrued but unpaid interest, if any), computed upon the redemption date using a discount rate equal to the Applicable Treasury Rate at such redemption date plus 50 basis points; over (b) the outstanding principal amount of such Note; in each case, as calculated by the Company or on behalf of the Company by such Person as the Company shall des- ignate. The Trustee shall have no duty to calculate or verify the calculations of the Applicable Premium. “Applicable Treasury Rate” means the yield to maturity at the time of computation of United States Treas- ury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) which has become publicly available at least two Business Days (but not more than five Busi- ness Days) prior to the redemption date (or, if such statistical release is not so published or available, any publicly available source of similar market data selected by the Company in good faith)) most nearly equal to the period from the redemption date to April 1, 2018; provided, however, that if the period from the redemption date to April 1, 2018 is not equal to the constant maturity of a United States Treasury security for which a weekly average yield is given, the Applicable Treasury Rate shall be obtained by linear interpolation (calculated to the nearest one-twelfth of a year) from the weekly average yields of United States Treasury securities for which such yields are given, except that if the period from the redemption date to such applicable date is less than one year, the weekly average yield on actively traded United States Treasury securities adjusted to a constant maturity of one year shall be used. “Asset Disposition” means: (a) the sale, conveyance, transfer or other disposition, whether in a single transaction or a se- xxxx of related transactions, of property or assets (including by way of a Sale and Leaseback Transaction) of the Company or any of its Restricted Subsidiaries (in each case other than Capital Stock of the Company) (each referred to in this definition as a “disposition”); or (b) the issuance or sale of Capital Stock of any Restricted Subsidiary (other than Preferred Stock or Disqualified Stock of Restricted Subsidiaries issued in compliance with Section 3.2 hereof or di- rectors’ qualifying shares and shares issued to foreign nationals as required under applicable law), whether in a single transaction or a series of related transactions; in each case, other than: (1) a disposition by a Restricted Subsidiary to the Company or by the Company or a Re- stricted Subsidiary to a Restricted Subsidiary; (2) a disposition of cash, Cash Equivalents or Investment Grade Securities; (3) a disposition of inventory or other assets in the ordinary course of business or consistent with past practice (including allowing any registrations or any applications for registrations of any intellec- tual property rights to lapse or go abandoned in the ordinary course of business or consistent with past prac- xxxx);
![Page 8](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi008.jpg)
-3- (4) a disposition of obsolete, surplus or worn out property, equipment or other assets or prop- erty, equipment or other assets that are no longer used or useful in the conduct of the business of the Com- pany and its Restricted Subsidiaries; (5) transactions permitted under Section 4.1 hereof or a transaction that constitutes a Change of Control; (6) an issuance of Capital Stock by a Restricted Subsidiary to the Company or to another Re- stricted Subsidiary or as part of or pursuant to an equity incentive or compensation plan approved by the Board of Directors; (7) any dispositions of Capital Stock, properties or assets in a single transaction or series of related transactions with a fair market value (as determined in good faith by the Company) of less than $10.0 million; (8) any Restricted Payment that is permitted to be made, and is made, under Section 3.3 and the making of any Permitted Payment or Permitted Investment or, solely for purposes of Section 3.5(a)(3), asset sales, the proceeds of which are used to make such Restricted Payments or Permitted Investments; (9) dispositions in connection with Permitted Liens; (10) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or consistent with past practice or in bankruptcy or similar pro- ceedings and exclusive of factoring or similar arrangements; (11) the licensing or sub-licensing of intellectual property or other general intangibles and li- censes, sub-licenses, leases or subleases of other property, in each case, in the ordinary course of business or consistent with past practice; (12) foreclosure, condemnation or any similar action with respect to any property or other as- sets; (13) the sale or discount (with or without recourse, and on customary or commercially reason- able terms and for credit management purposes) of accounts receivable or notes receivable arising in the ordinary course of business or consistent with past practice, or the conversion or exchange of accounts re- ceivable for notes receivable; (14) any disposition of Capital Stock, Indebtedness or other securities of an Unrestricted Sub- sidiary; (15) any disposition of Capital Stock of a Restricted Subsidiary pursuant to an agreement or other obligation with or to a Person (other than the Company or a Restricted Subsidiary) from whom such Restricted Subsidiary was acquired, or from whom such Restricted Subsidiary acquired its business and as- sets (having been newly formed in connection with such acquisition), made as part of such acquisition and in each case comprising all or a portion of the consideration in respect of such sale or acquisition; (16) (i) dispositions of property to the extent that such property is exchanged for credit against the purchase price of similar replacement property that is promptly purchased, (ii) dispositions of property to the extent that the proceeds of such disposition are promptly applied to the purchase price of such re- placement property (which replacement property is actually promptly purchased) and (iii) to the extent al- lowable under Section 1031 of the Code, any exchange of like property (excluding any boot thereon) for use in a Similar Business; (17) any financing transaction with respect to property constructed, acquired, replaced, re- paired or improved (including any reconstruction, refurbishment, renovation and/or development of real
![Page 9](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi009.jpg)
-4- property) by the Company or any Restricted Subsidiary after the Issue Date, including Sale and Leaseback Transactions and asset securitizations, permitted by this Indenture; (18) dispositions of Investments in joint ventures or similar entities to the extent required by, or made pursuant to customary buy/sell arrangements between, the parties to such joint venture set forth in joint venture arrangements and similar binding arrangements; (19) any surrender or waiver of contract rights or the settlement, release or surrender of con- tract, tort or other claims of any kind; (20) the unwinding of any Hedging Obligations pursuant to its terms; (21) dispositions of non-core assets (a) acquired in connection with any acquisition permitted under this Indenture or any Permitted Investment or (b) with a fair market value not in excess of $20.0 mil- lion in the aggregate when taken together with all other dispositions pursuant to this clause (b); and (22) any swap of assets in exchange for services or other assets in the ordinary course of busi- ness of comparable or greater value or usefulness to the business as determined in good faith by the Com- pany. “Associate” means (i) any Person engaged in a Similar Business of which the Company or its Restricted Subsidiaries are the legal and beneficial owners of between 20% and 50% of all outstanding Voting Stock and (ii) any joint venture entered into by the Company or any Restricted Subsidiary of the Company. “Bankruptcy Law” means Title 11 of the United States Code or similar federal or state law for the relief of debtors. “Board of Directors” means (1) with respect to the Company or any corporation, the board of directors or managers, as applicable, of the corporation, or any duly authorized committee thereof; (2) with respect to any part- nership, the board of directors or other governing body of the general partner of the partnership or any duly author- ized committee thereof; and (3) with respect to any other Person, the board or any duly authorized committee of such Person serving a similar function. Whenever any provision requires any action or determination to be made by, or any approval of, a Board of Directors, such action, determination or approval shall be deemed to have been taken or made if approved by a majority of the directors on any such Board of Directors (whether or not such action or approval is taken as part of a formal board meeting or as a formal board approval). “Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant Secretary of a Person to have been duly adopted by the Board of Directors of such Person and to be in full force and effect on the date of such certification, and delivered to the Trustee. “Business Day” means each day that is not a Saturday, Sunday or other day on which banking institutions in New York, New York, United States or the jurisdiction of the place of payment are authorized or required by law to close. “Capital Stock” of any Person means any and all shares of, rights to purchase, warrants, options or deposi- tary receipts for, or other equivalents of or partnership or other interests in (however designated), equity of such Per- son, including any Preferred Stock, but excluding any debt securities convertible into such equity. “Capitalized Lease Obligations” means an obligation that is required to be classified and accounted for as a capitalized lease for financial reporting purposes on the basis of GAAP. The amount of Indebtedness represented by such obligation will be the capitalized amount of such obligation at the time any determination thereof is to be made as determined on the basis of GAAP, and the Stated Maturity thereof will be the date of the last payment of rent or any other amount due under such lease prior to the first date such lease may be terminated without penalty. “Cash Equivalents” means:
![Page 10](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi010.jpg)
-5- (1) (a) United States dollars, Canadian dollars, Euro, or any national currency of any member state of the European Union; or (b) any other foreign currency held by the Company and the Restricted Subsidiaries in the ordinary course of business; (2) securities issued or directly and fully Guaranteed or insured by the United States or Ca- nadian governments, a member state of the European Union or, in each case, or any agency or instrumen- tality of the foregoing (provided that the full faith and credit obligation of such country or such member state is pledged in support thereof), having maturities of not more than two years from the date of acquisi- tion; (3) certificates of deposit, time deposits, Eurodollar time deposits, overnight bank deposits or bankers’ acceptances having maturities of not more than one year from the date of acquisition thereof is- sued by any lender or by any bank or trust company (a) whose commercial paper is rated at least “A-2” or the equivalent thereof by S&P or at least “P-2” or the equivalent thereof by Moody’s (or if at the time nei- ther is issuing comparable ratings, then a comparable rating of another Nationally Recognized Statistical Rating Organization) or (b) (in the event that the bank or trust company does not have commercial paper which is rated) having combined capital and surplus in excess of $100.0 million; (4) repurchase obligations for underlying securities of the types described in clauses (2), (3) and (7) entered into with any bank meeting the qualifications specified in clause (3) above; (5) securities with maturities of one year or less from the date of acquisition backed by standby letters of credit issued by any Person referenced in clause (3) above; (6) commercial paper rated at least (A) “A-1” or higher by S&P or “P-1” or higher by Moody’s (or, if at the time, neither is issuing comparable ratings, then a comparable rating of another Na- tionally Recognized Statistical Rating Organization selected by the Company) maturing within two years after the date of creation thereof or (B) “A-2” or higher by S&P or “P-2” or higher by Moody’s (or, if at the time, neither is issuing comparable ratings, then a comparable rating of another Nationally Recognized Sta- tistical Rating Organization selected by the Company) maturing within one year after the date of creation thereof, or, in each case, if no rating is available in respect of the commercial paper, the Company of which has an equivalent rating in respect of its long-term debt; (7) marketable short-term money market and similar securities having a rating of at least “P- 2” or “A-2” from either S&P or Moody’s, respectively (or, if at the time, neither is issuing comparable rat- ings, then a comparable rating of another Nationally Recognized Statistical Rating Organization selected by the Company) and in each case maturing within 24 months after the date of creation or acquisition thereof; (8) readily marketable direct obligations issued by any state, province, commonwealth or ter- ritory of the United States of America or Canada or any political subdivision, taxing authority or public in- strumentality thereof, in each case, having one of the two highest ratings categories by S&P or Moody’s (or, if at the time, neither is issuing comparable ratings, then a comparable rating of another Nationally Recognized Statistical Rating Organization selected by the Company) with maturities of not more than two years from the date of acquisition; (9) readily marketable direct obligations issued by any foreign government or any political subdivision, taxing authority or public instrumentality thereof, in each case, having one of the two highest ratings categories obtainable by S&P or Moody’s (or, if at the time, neither is issuing comparable ratings, then a comparable rating of another Nationally Recognized Statistical Rating Organization selected by the Company) with maturities of not more than two years from the date of acquisition; (10) Investments with average maturities of 12 months or less from the date of acquisition in money market funds rated within the three highest ratings categories by S&P or Moody’s (or, if at the time, neither is issuing comparable ratings, then a comparable rating of another Nationally Recognized Statistical Rating Organization selected by the Company);
![Page 11](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi011.jpg)
-6- (11) with respect to any Foreign Subsidiary: (i) obligations of the national government of the country in which such Foreign Subsidiary maintains its chief executive office and principal place of busi- ness provided such country is a member of the Organization for Economic Cooperation and Development, in each case maturing within one year after the date of investment therein, (ii) certificates of deposit of, bankers’ acceptance of, or time deposits with, any commercial bank which is organized and existing under the laws of the country in which such Foreign Subsidiary maintains its chief executive office and principal place of business provided such country is a member of the Organization for Economic Cooperation and Development, and whose short-term commercial paper rating from S&P is at least “A-1” or the equivalent thereof or from Xxxxx’x is at least “P-1” or the equivalent thereof (any such bank being an “Approved Foreign Bank”), and in each case with maturities of not more than 270 days from the date of acquisition and (iii) the equivalent of demand deposit accounts which are maintained with an Approved Foreign Bank; (12) Indebtedness or Preferred Stock issued by Persons with a rating of “BBB-” or higher from S&P or “Baa3” or higher from Xxxxx’x (or, if at the time, neither is issuing comparable ratings, then a comparable rating of another Nationally Recognized Statistical Rating Organization selected by the Com- pany) with maturities of 24 months or less from the date of acquisition; (13) bills of exchange issued in the United States, Canada, a member state of the European Union, or Japan eligible for rediscount at the relevant central bank and accepted by a bank (or any demate- rialized equivalent); (14) interests in any investment company, money market or enhanced high yield fund or other investment fund which invests 90% or more of its assets in instruments of the types specified in clauses (1) through (13) above; and (15) for purposes of clause (2) of the definition of “Asset Disposition,” any marketable securi- ties portfolio owned by the Company and its subsidiaries on the Issue Date. In the case of Investments by any Foreign Subsidiary that is a Restricted Subsidiary or Investments made in a coun- try outside the United States of America, Cash Equivalents shall also include (a) investments of the type and maturi- ty described in clauses (1) through (9) and clauses (11) through (14) above of foreign obligors, which Investments or obligors (or the parents of such obligors) have ratings described in such clauses or equivalent ratings from compara- ble foreign rating agencies and (b) other short-term investments utilized by Foreign Subsidiaries that are Restricted Subsidiaries in accordance with normal investment practices for cash management in investments analogous to the foregoing investments in clauses (1) through (14) and in this paragraph. Notwithstanding the foregoing, Cash Equivalents shall include amounts denominated in currencies other than those set forth in clause (1) above, provided that such amounts are converted into any currency listed in clause (1) as promptly as practicable and in any event within 10 Business Days following the receipt of such amounts. For the avoidance of doubt, any items identified as Cash Equivalents under this definition (other than clause (15) above) will be deemed to be Cash Equivalents for all purposes under this Indenture regardless of the treatment of such items under GAAP. “Cash Management Services” means any of the following to the extent not constituting a line of credit (other than an overnight draft facility that is not in default): automated clearing house transfers of funds, treasury, depository, credit or debit card, purchasing card, and/or cash management services, including controlled disburse- ment services, overdraft facilities, foreign exchange facilities, deposit and other accounts and merchant services. “Change of Control” means: (1) the Company becomes aware of (by way of a report or any other filing pursuant to Sec- tion 13(d) of the Exchange Act, proxy, vote, written notice or otherwise) any “person” or “group” of related persons (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act as in effect on the Issue Date), other than one or more Permitted Holders, is or becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act as in effect on the Issue Date), directly or indirectly, of more than 50% of the total voting power of the Voting Stock of the Company; or
![Page 12](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi012.jpg)
-7- (2) the sale, lease, transfer, conveyance or other disposition (other than by way of merger, amalgamation, consolidation or other business combination transaction), in one or a series of related trans- actions, of all or substantially all of the assets of the Company and its Restricted Subsidiaries taken as a whole to a Person, other than a Restricted Subsidiary or one or more Permitted Holders. “Code” means the United States Internal Revenue Code of 1986, as amended. “Consolidated Depreciation and Amortization Expense” means, with respect to any Person for any period, the total amount of depreciation and amortization expense, including amortization or write-off of (i) intangibles and non-cash organization costs and (ii) deferred financing fees or costs, capitalized expenditures, customer acquisition costs and incentive payments, conversion costs and contract acquisition costs, the amortization of original issue dis- count resulting from the issuance of Indebtedness at less than par and amortization of favorable or unfavorable lease assets or liabilities, of such Person and its Restricted Subsidiaries for such period on a consolidated basis and other- wise determined in accordance with GAAP and any write-down of assets or asset value carried on the balance sheet. “Consolidated EBITDA” means, with respect to any Person for any period, the Consolidated Net Income of such Person for such period: (1) increased (without duplication) by: (a) provision for taxes based on income or profits or capital, including, without limitation, federal, state, provincial, local, foreign, unitary, franchise and similar taxes and foreign withholding and similar taxes of such Person paid or accrued during such period, including any penalties and interest relating to any tax examinations, deducted (and not added back) in compu- ting Consolidated Net Income; plus (b) Fixed Charges of such Person for such period (including (x) net losses on any Hedging Obligations or other derivative instruments entered into for the purpose of hedging inter- est rate, currency or commodities risk, (y) bank fees and (z) costs of surety bonds in connection with financing activities, plus amounts excluded from the definition of “Consolidated Interest Ex- pense” pursuant to clauses (t) through (z) in clause (1) thereof), to the extent the same were de- ducted (and not added back) in calculating such Consolidated Net Income; plus (c) Consolidated Depreciation and Amortization Expense of such Person for such period to the extent the same were deducted (and not added back) in computing Consolidated Net Income; plus (d) any (x) Transaction Expenses and (y) fees, costs, expenses or charges (other than Consolidated Depreciation and Amortization Expense) related to any actual, proposed or con- templated Equity Offering, Permitted Investment, acquisition, disposition, recapitalization or the incurrence of Indebtedness permitted to be incurred by this Indenture (including a refinancing thereof) (whether or not successful), including (i) such fees, expenses or charges related to the of- fering of the Notes, the Credit Agreement and any other Credit Facilities, and (ii) any amendment, waiver or other modification of the Notes, the Credit Agreement, any other Credit Facilities, any other Indebtedness permitted to be Incurred under this Indenture or any Equity Offering, in each case, whether or not consummated, to the extent the same were deducted (and not added back) in computing Consolidated Net Income; plus (e) (i) the amount of any restructuring charge, reserve, integration cost or other business optimization expense or cost (including charges directly related to the implementation of cost-savings initiatives) that is deducted (and not added back) in such period in computing Consol- idated Net Income, including any one-time costs incurred in connection with acquisitions or di- vestitures after the Issue Date, including, without limitation, those related to any severance, reten- tion, signing bonuses, relocation, recruiting and other employee related costs, future lease com- mitments and costs related to the opening and closure and/or consolidation of facilities and to ex-
![Page 13](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi013.jpg)
-8- isting lines of business and (ii) fees, costs and expenses associated with acquisition related litiga- tion and settlements thereof; plus (f) any other non-cash charges, write-downs, expenses, losses or items reducing Consolidated Net Income for such period including any impairment charges or the impact of pur- chase accounting, (excluding any such non-cash charge, write-down or item to the extent it repre- sents an accrual or reserve for a cash expenditure for a future period); plus (g) the amount of management, monitoring, advisory, consulting, refinancing, sub- sequent transaction and exit fees (including termination fees) and related indemnities and expenses paid or accrued in such period to Oaktree to the extent permitted under Section 3.8 hereof; plus (h) the amount of “run-rate” cost savings, operating expense reductions, other oper- ating improvements and initiatives and synergies projected by the Company in good faith to be reasonably anticipated to be realizable (calculated on a pro forma basis as though such cost sav- ings, operating expense reductions, other operating improvements and initiatives and synergies had been realized on the first day of such period), net of the amount of actual benefits realized dur- ing such period from such actions; provided that (x) such cost savings are reasonably identifiable, reasonably attributable to the actions specified and reasonably anticipated to result from such ac- tions (in the good faith determination of the Company) and (y) such actions have been taken or are to be taken within 18 months; plus (i) any costs or expense incurred by the Company or a Restricted Subsidiary pursu- ant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement or any stock subscription or shareholder agreement, to the extent that such cost or expenses are funded with cash proceeds contributed to the capital of the Company or net cash proceeds of an issuance of Capital Stock (other than Disqualified Stock) of the Company solely to the extent that such net cash proceeds are excluded from the calculation set forth in Sec- tion 3.3(a)(3) hereof; plus (j) cash receipts (or any netting arrangements resulting in reduced cash expendi- tures) not representing Consolidated EBITDA or Consolidated Net Income in any period to the ex- tent non-cash gains relating to such income were deducted in the calculation of Consolidated EBITDA pursuant to clause (2) below for any previous period and not added back; plus (k) any net loss included in the Consolidated Net Income attributable to non- controlling interests pursuant to the application of Accounting Standards Codification Topic 000- 00-00 (“Topic 810”); plus (l) realized foreign exchange losses resulting from the impact of foreign currency changes on the valuation of assets or liabilities on the balance sheet of the Company and its Re- stricted Subsidiaries; plus (m) net realized losses from Hedging Obligations or embedded derivatives that re- quire similar accounting treatment and the application of Accounting Standard Codification Topic 815 and related pronouncements; plus (n) letter of credit fees. (2) decreased (without duplication) by: (a) non-cash gains increasing Consolidated Net In- come of such Person for such period, excluding any non-cash gains to the extent they represent the reversal of an accrual or reserve for a potential cash item that reduced Consolidated EBITDA in any prior period and any non-cash gains with respect to cash actually received in a prior period so long as such cash did not increase Consolidated EBITDA in such prior period; plus (b) realized foreign exchange income or gains re- sulting from the impact of foreign currency changes on the valuation of assets or liabilities on the balance
![Page 14](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi014.jpg)
-9- sheet of the Company and its Restricted Subsidiaries; plus (c) any net realized income or gains from Hedg- ing Obligations or embedded derivatives that require similar accounting treatment and the application of Accounting Standards Codification Topic 815 and related pronouncements, plus (d) any net income includ- ed in the Consolidated Net Income attributable to non-controlling interests pursuant to the application of Topic 810; and (3) increased or decreased (without duplication) by, as applicable, any adjustments resulting from the application of Accounting Standards Codification Topic 460 or any comparable regulation. “Consolidated Interest Expense” means, with respect to any Person for any period, without duplication, the sum of: (1) consolidated interest expense of such Person and its Restricted Subsidiaries for such peri- od, to the extent such expense was deducted (and not added back) in computing Consolidated Net Income (including (a) amortization of original issue discount or premium resulting from the issuance of Indebted- ness at less than par, (b) all commissions, discounts and other fees and charges owed with respect to letters of credit or bankers acceptances, (c) non-cash interest payments (but excluding any non-cash interest ex- pense attributable to the movement in the xxxx to market valuation of any Hedging Obligations or other de- rivative instruments pursuant to GAAP), (d) the interest component of Capitalized Lease Obligations, and (e) net payments, if any, pursuant to interest rate Hedging Obligations with respect to Indebtedness, and ex- cluding (t) penalties and interest relating to taxes, (u) any additional cash interest owing pursuant to any registration rights agreement, (v) accretion or accrual of discounted liabilities other than Indebtedness, (w) any expense resulting from the discounting of any Indebtedness in connection with the application of purchase accounting in connection with any acquisition, (x) amortization of deferred financing fees, debt issuance costs, commissions, fees and expenses, (y) any expensing of bridge, commitment and other fi- nancing fees, and (z) interest with respect to Indebtedness of any parent of such Person appearing upon the balance sheet of such Person solely by reason of push-down accounting under GAAP); plus (2) consolidated capitalized interest of such Person and its Restricted Subsidiaries for such period, whether paid or accrued; less (3) interest income for such period. For purposes of this definition, interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by such Person to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP. “Consolidated Net Income” means, with respect to any Person for any period, the net income (loss) of such Person and its Restricted Subsidiaries for such period determined on a consolidated basis on the basis of GAAP; provided, however, that there will not be included in such Consolidated Net Income: (1) any net income (loss) of any Person if such Person is not a Restricted Subsidiary, except that the Company’s equity in the net income of any such Person for such period will be included in such Consolidated Net Income up to the aggregate amount of cash or Cash Equivalents actually distributed or that (as reasonably determined by an Officer of the Company) could have been distributed by such Person during such period to the Company or a Restricted Subsidiary as a dividend or other distribution or return on investment (subject, in the case of a dividend or other distribution or return on investment to a Restricted Subsidiary, to the limitations contained in clause (2) below); (2) solely for the purpose of determining the amount available for Restricted Payments under Section 3.3(a)(iii)(B) hereof, any net income (loss) of any Restricted Subsidiary (other than the Company and the Guarantors) if such Subsidiary is subject to restrictions, directly or indirectly, on the payment of dividends or the making of distributions by such Restricted Subsidiary, directly or indirectly, to the Com- pany or a Guarantor by operation of the terms of such Restricted Subsidiary’s articles, charter or any agreement, instrument, judgment, decree, order, statute or governmental rule or regulation applicable to
![Page 15](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi015.jpg)
-10- such Restricted Subsidiary or its shareholders (other than (a) restrictions that have been waived or other- wise released, (b) restrictions pursuant to the Credit Agreement, the Notes, or this Indenture, and (c) re- strictions specified in Section 3.4(b)(13)(i)), except that the Company’s equity in the net income of any such Restricted Subsidiary for such period will be included in such Consolidated Net Income up to the ag- gregate amount of cash or Cash Equivalents actually distributed or that could have been distributed by such Restricted Subsidiary during such period to the Company or another Restricted Subsidiary as a dividend or other distribution (subject, in the case of a dividend to another Restricted Subsidiary, to the limitation con- tained in this clause); (3) any gain (or loss), together with any related provisions for taxes on any such gain (or the tax effect of any such loss), realized upon the sale or other disposition of any asset (including pursuant to any Sale and Leaseback Transaction) or disposed operations of the Company or any Restricted Subsidiaries which is not sold or otherwise disposed of in the ordinary course of business (as determined in good faith by an Officer or the Board of Directors of the Company); (4) any extraordinary, exceptional, unusual or nonrecurring gain, loss, charge or expense or any charges, expenses or reserves in respect of any restructuring, redundancy or severance expense; (5) the cumulative effect of a change in accounting principles, including any impact resulting from an election by the Company to apply IFRS at any time following the Issue Date; (6) any (i) non-cash compensation charge or expense arising from any grant of stock, stock options or other equity based awards and any non-cash deemed finance charges in respect of any pension liabilities or other provisions or on the re-valuation of any benefit plan obligation and (ii) income (loss) at- tributable to deferred compensation plans or trusts; (7) all deferred financing costs written off and premiums paid or other expenses incurred di- rectly in connection with any early extinguishment of Indebtedness and any net gain (loss) from any write-off or forgiveness of Indebtedness; (8) any unrealized gains or losses in respect of any Hedging Obligations or any ineffective- ness recognized in earnings related to qualifying hedge transactions or the fair value of changes therein recognized in earnings for derivatives that do not qualify as hedge transactions, in each case, in respect of any Hedging Obligations; (9) any unrealized foreign currency translation or transaction gains or losses in respect of In- debtedness of any Person denominated in a currency other than the functional currency of such Person and any unrealized foreign exchange gains or losses relating to translation of assets and liabilities denominated in foreign currencies; (10) any unrealized foreign currency translation or transaction gains or losses in respect of In- debtedness or other obligations of the Company or any Restricted Subsidiary owing to the Company or any Restricted Subsidiary; (11) any purchase accounting effects, including adjustments to inventory, property and equipment, software and other intangible assets and deferred revenue in component amounts required or permitted by GAAP and related authoritative pronouncements (including the effects of such adjustments pushed down to the Company and the Restricted Subsidiaries), as a result of any consummated acquisition, or the amortization or write-off of any amounts thereof (including any write-off of in process research and development); (12) any goodwill or other intangible asset impairment charge or write-off; (13) any after-tax effect of income (loss) from the early extinguishment or cancellation of In- debtedness or any Hedging Obligations or other derivative instruments;
![Page 16](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi016.jpg)
-11- (14) accruals and reserves that are established or adjusted within twelve (12) months after the Issue Date that are so required to be established or adjusted as a result of Transactions in accordance with GAAP; (15) any net unrealized gains and losses resulting from Hedging Obligations or embedded de- rivatives that require similar accounting treatment and the application of Accounting Standards Codifica- tion Topic 815 and related pronouncements; (16) the amount of any expense to the extent a corresponding amount is received in cash by the Company and the Restricted Subsidiaries from a Person other than the Company or any Restricted Sub- sidiaries under any agreement providing for reimbursement of any such expense, provided such xxxx- bursement payment has not been included in determining Consolidated Net Income (it being understood that if the amounts received in cash under any such agreement in any period exceed the amount of expense in respect of such period, such excess amounts received may be carried forward and applied against ex- pense in future periods); and (17) any deferred tax expense associated with tax deductions or net operating losses arising as a result of the Transactions, or the release of any valuation allowances related to such item. In addition, to the extent not already included in the Consolidated Net Income of such Person and its Re- stricted Subsidiaries, notwithstanding anything to the contrary in the foregoing, Consolidated Net Income shall in- clude (i) any expenses and charges that are reimbursed by indemnification or other reimbursement provisions in connection with any investment or any sale, conveyance, transfer or other disposition of assets permitted hereunder, or, so long as the Company has made a determination that there exists reasonable evidence that such amount will in fact be reimbursed and only to the extent that such amount is (A) not denied by the applicable payor in writing with- in 180 days and (B) in fact reimbursed within 365 days of the date of such evidence (with a deduction for any amount so added back to the extent not so reimbursed within 365 days) and (ii) to the extent covered by insurance (including business interruption insurance) and actually reimbursed, or, so long as the Company has made a deter- mination that there exists reasonable evidence that such amount will in fact be reimbursed by the insurer and only to the extent that such amount is (A) not denied by the applicable carrier in writing within 180 days and (B) in fact reimbursed within 365 days of the date of such evidence (with a deduction for any amount so added back to the ex- tent not so reimbursed within 365 days), expenses with respect to liability or casualty events or business interrup- tion. “Consolidated Secured Leverage” means, the sum of the aggregate outstanding Secured Indebtedness for borrowed money of the Company and its Restricted Subsidiaries. “Consolidated Secured Leverage Ratio” means, as of any date of determination, the ratio of (x) Consolidated Secured Leverage at such date to (y) the aggregate amount of Consolidated EBITDA for the period of the most recent four consecutive fiscal quarters ending prior to the date of such determination for which internal consolidated financial statements of the Company are available, in each case with such pro forma adjustments as are consistent with the pro forma adjustments set forth in the definition of “Leverage Ratio”; provided that, for the pur- pose of determining Consolidated Secured Leverage, the aggregate amount of cash and Cash Equivalents of the Company and its Restricted Subsidiaries shall be determined without giving pro forma effect to the proceeds of In- debtedness incurred on such date. “Consolidated Total Indebtedness” means, as at any date of determination, an amount equal to the sum of (1) the aggregate amount of all outstanding Indebtedness of the Company and its Restricted Subsidiaries on a con- solidated basis consisting of Indebtedness for borrowed money, Obligations in respect of Capitalized Lease Obliga- tions and debt obligations evidenced by promissory notes and similar instruments and (2) the aggregate amount of all outstanding Disqualified Stock of the Company and all Disqualified Stock and Preferred Stock of its Restricted Subsidiaries on a consolidated basis, with the amount of such Disqualified Stock and Preferred Stock equal to the greater of their respective voluntary or involuntary liquidation preferences and maximum fixed repurchase prices, in each case determined on a consolidated basis in accordance with GAAP; provided that Indebtedness of the Compa- ny and its Restricted Subsidiaries under any revolving credit facility or line of credit as at any date of determination shall be determined using the Average Quarterly Balance of such Indebtedness for the most recently ended four fis-
![Page 17](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi017.jpg)
-12- cal quarters for which internal financial statements are available as of such date of determination (the “Reference Period”). For purposes hereof, (a) the “maximum fixed repurchase price” of any Disqualified Stock or Preferred Stock that does not have a fixed repurchase price shall be calculated in accordance with the terms of such Disquali- fied Stock or Preferred Stock as if such Disqualified Stock or Preferred Stock were purchased on any date on which Consolidated Total Indebtedness shall be required to be determined pursuant to this Indenture, and if such price is based upon, or measured by, the fair market value of such Disqualified Stock or Preferred Stock, such fair market value shall be determined reasonably and in good faith by the Company, (b) “Average Quarterly Balance” means, with respect to any Indebtedness incurred by the Company or its Restricted Subsidiaries under a revolving facility or line of credit, the quotient of (x) the sum of each Individual Quarterly Balance for each fiscal quarter ended on or prior to such date of determination and included in the Reference Period divided by (y) 4, and (c) “Individual Quar- terly Balance” means, with respect to any Indebtedness incurred by the Company or its Restricted Subsidiaries under a revolving credit facility or line of credit during any fiscal quarter of the Company, the quotient of (x) the sum of the aggregate outstanding principal amount of all such Indebtedness at the end of each day of such quarter divided by (y) the number of days in such fiscal quarter. “Contingent Obligations” means, with respect to any Person, any obligation of such Person guaranteeing in any manner, whether directly or indirectly, any operating lease, dividend or other obligation that does not constitute Indebtedness (“primary obligations”) of any other Person (the “primary obligor”), including any obligation of such Person, whether or not contingent: (1) to purchase any such primary obligation or any property constituting direct or indirect se- curity therefor; (2) to advance or supply funds: (a) for the purchase or payment of any such primary obligation; or (b) to maintain the working capital or equity capital of the primary obligor or oth- erwise 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 own- er of any such primary obligation of the ability of the primary obligor to make payment of such primary ob- ligation against loss in respect thereof. “Covenant Suspension” means, during any period of time following the issuance of the Notes, that (i) the Notes have achieved Investment Grade Status, and (ii) no Default or Event of Default has occurred and is continuing under this Indenture. “Credit Agreement” means the Credit Agreement to be entered into by and among the Company, the guar- antors from time to time party thereto, Royal Bank of Canada, as administrative agent and collateral agent, and each lender from time to time party thereto, together with the related documents thereto (including the revolving loans thereunder, any letters of credit and reimbursement obligations related thereto, any Guarantees and security docu- ments), as amended, extended, renewed, restated, refunded, replaced, refinanced, supplemented, modified or other- wise changed (in whole or in part, and without limitation as to amount, terms, conditions, covenants and other provi- sions) from time to time, and any one or more agreements (and related documents) governing Indebtedness, includ- ing indentures, incurred to refinance, substitute, supplement, replace or add to (including increasing the amount available for borrowing or adding or removing any Person as a borrower, Company or guarantor thereunder, in whole or in part), the borrowings and commitments then outstanding or permitted to be outstanding under such Credit Agreement or one or more successors to the Credit Agreement or one or more new credit agreements. “Credit Facility” means, with respect to the Company or any of its Subsidiaries, one or more debt facilities, indentures or other arrangements (including the Credit Agreement or commercial paper facilities and overdraft facil- ities) with banks, other financial institutions or investors providing for revolving credit loans, term loans, notes, re- ceivables financing (including through the sale of receivables to such institutions or to special purpose entities formed to borrow from such institutions against such receivables), letters of credit or other Indebtedness, in each
![Page 18](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi018.jpg)
-13- case, as amended, restated, modified, renewed, refunded, replaced, restructured, refinanced, repaid, increased or extended in whole or in part from time to time (and whether in whole or in part and whether or not with the original administrative agent and lenders or another administrative agent or agents or other banks or institutions and whether provided under the original Credit Agreement or one or more other credit or other agreements, indentures, financing agreements or otherwise) and in each case including all agreements, instruments and documents executed and deliv- ered pursuant to or in connection with the foregoing (including any notes and letters of credit issued pursuant thereto and any Guarantee and collateral agreement, patent and trademark security agreement, mortgages or letter of credit applications and other Guarantees, pledges, agreements, security agreements and collateral documents). Without limiting the generality of the foregoing, the term “Credit Facility” shall include any agreement or instrument (1) changing the maturity of any Indebtedness Incurred thereunder or contemplated thereby, (2) adding Subsidiaries of the Company as additional borrowers or guarantors thereunder, (3) increasing the amount of Indebtedness In- curred thereunder or available to be borrowed thereunder or (4) otherwise altering the terms and conditions thereof. “Custodian” means any receiver, trustee, assignee, liquidator, custodian or similar official under any Bank- ruptcy Law. “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; provided that any Default that results solely from the taking of an action that would have been permitted but for the continuation of a previous Default will be deemed to be cured if such previous Default is cured prior to becoming an Event of Default. “Definitive Notes” means certificated Notes. “Designated Non-Cash Consideration” means the fair market value (as determined in good faith by the Company) of non-cash consideration received by the Company or one of its Restricted Subsidiaries in connection with an Asset Disposition that is so designated as Designated Non-Cash Consideration pursuant to an Officer’s Cer- tificate, setting forth the basis of such valuation, less the amount of cash or Cash Equivalents received in connection with a subsequent payment, redemption, retirement, sale or other disposition of such Designated Non-Cash Consid- eration. A particular item of Designated Non-Cash Consideration will no longer be considered to be outstanding when and to the extent it has been paid, redeemed or otherwise retired or sold or otherwise disposed of in compli- ance with Section 3.5 hereof. “Designated Preferred Stock” means, with respect to the Company, Preferred Stock (other than Disquali- fied Stock) (a) that is issued for cash (other than to the Company or a Subsidiary of the Company or an employee stock ownership plan or trust established by the Company or any such Subsidiary for the benefit of their employees to the extent funded by the Company or such Subsidiary) and (b) that is designated as “Designated Preferred Stock” pursuant to an Officer’s Certificate of the Company at or prior to the issuance thereof, the Net Cash Proceeds of which are excluded from the calculation set forth in Section 3.3(a)(iii)(C) hereof. “Disinterested Director” means, with respect to any Affiliate Transaction, a member of the Board of Direc- tors of the Company having no material direct or indirect financial interest in or with respect to such Affiliate Trans- action. A member of the Board of Directors of the Company shall be deemed not to have such a financial interest by reason of such member’s holding Capital Stock of the Company or any options, warrants or other rights in respect of such Capital Stock. “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 exchangeable) or upon the hap- pening of any event: (1) matures or is mandatorily redeemable for cash or in exchange for Indebtedness pursuant to a sinking fund obligation or otherwise; or (2) is or may become (in accordance with its terms) upon the occurrence of certain events or otherwise redeemable or repurchasable for cash or in exchange for Indebtedness at the option of the holder of the Capital Stock in whole or in part,
![Page 19](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi019.jpg)
-14- in each case on or prior to the earlier of (a) the Stated Maturity of the Notes or (b) the date on which there are no Notes outstanding; provided, however, that (i) only the portion of Capital Stock which so matures or is mandatorily redeemable, is so convertible or exchangeable or is so redeemable at the option of the holder thereof prior to such date will be deemed to be Disqualified Stock and (ii) any Capital Stock that would constitute Disqualified Stock solely because the holders thereof have the right to require the Company to repurchase such Capital Stock upon the occurrence of a change of control or asset sale (howsoever defined or referred to) shall not constitute Disqualified Stock if any such redemption or repurchase obligation is subject to compliance by the relevant Person with Sec- tion 3.3 hereof; 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 Dis- qualified 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. “Dollars” or “$” means the lawful money of the United States of America. “Domestic Subsidiary” means, with respect to any Person, any Restricted Subsidiary of such Person other than a Foreign Subsidiary. “DTC” means The Depository Trust Company or any successor securities clearing agency. “Equity Offering” means (x) a sale of Capital Stock of the Company (other than Disqualified Stock) other than offerings registered on Form S-8 (or any successor form) under the Securities Act or any similar offering in other jurisdictions, or (y) the sale of Capital Stock or other securities, the proceeds of which are contributed to the equity (other than through the issuance of Disqualified Stock or Designated Preferred Stock or through an Excluded Contribution) of the Company or any of its Restricted Subsidiaries. “Euro” means the single currency of participating member states of the economic and monetary union as contemplated in the Treaty on European Union. “Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended, and the rules and regula- tions of the SEC promulgated thereunder, as amended. “Excluded Contribution” means Net Cash Proceeds or property or assets received by the Company as capi- tal contributions to the equity (other than through the issuance of Disqualified Stock or Designated Preferred Stock) of the Company after the Issue Date or from the issuance or sale (other than to a Restricted Subsidiary or an em- ployee stock ownership plan or trust established by the Company or any Subsidiary of the Company for the benefit of their employees to the extent funded by the Company or any Restricted Subsidiary) of Capital Stock (other than Disqualified Stock or Designated Preferred Stock) of the Company, in each case, to the extent designated as an Ex- cluded Contribution pursuant to an Officer’s Certificate of the Company. “fair market value” may be conclusively established by means of an Officer’s Certificate or resolutions of the Board of Directors of the Company setting out such fair market value as determined by such Officer or such Board of Directors in good faith. “FCC” means the Federal Communications Commission or any governmental authority succeeding to the Federal Communications Commission. “FCC Licenses” means the licenses, permits, authorizations or certificates to construct, own or operate tel- evision or radio stations granted by the FCC, and all extensions, additions and renewals thereto or thereof. “Fitch” means Fitch Ratings, Inc. or any of its successors or assigns that is a Nationally Recognized Statis- tical Rating Organization. “Fixed Charges” means, with respect to any Person for any period, the sum of: (1) Consolidated Interest Expense of such Person for such Period;
![Page 20](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi020.jpg)
-15- (2) all cash dividends or other distributions paid (excluding items eliminated in consolida- tion) on any series of Preferred Stock of any Restricted Subsidiary of such Person during such period; and (3) all cash dividends or other distributions paid (excluding items eliminated in consolida- tion) on any series of Disqualified Stock during this period. “Foreign Subsidiary” means, with respect to any Person, any Subsidiary of such Person that is not orga- nized or existing under the laws of the United States, any state thereof or the District of Columbia and any Subsidi- ary of such Subsidiary. “GAAP” means generally accepted accounting principles in the United States of America as in effect on the date of any calculation or determination required hereunder. Except as otherwise set forth in this Indenture, all ratios and calculations based on GAAP contained in this Indenture shall be computed in accordance with GAAP. At any time after the Issue Date, the Company may elect to establish that GAAP shall mean the GAAP as in effect on or prior to the date of such election; provided that any such election, once made, shall be irrevocable. At any time after the Issue Date, the Company may elect to apply 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), including as to the ability of the Company to make an election pursuant to the previous sentence; provided that any such election, once made, shall be irrevocable; provided, further, that any calculation or determi- nation in this Indenture that require 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; provided, further again, that the Company may only make such election if it also elects to report any subse- quent financial reports required to be made by the Company, including pursuant to Section 13 or Section 15(d) of the Exchange Act and Section 3.10 hereof, in IFRS. The Company shall give notice of any such election made in accordance with this definition to the Trustee and the Holders. “GE Capital” means, collectively, General Electric Capital Corporation and funds or partnerships related to, or managed or advised by it or any of its affiliates, or any Affiliate of any of them. “Governmental Authority” means any nation, sovereign or government, any state, province, territory or other political subdivision thereof, and any entity or authority exercising executive, legislative, judicial, regulatory, self-regulatory or administrative functions of or pertaining to government, including a central bank or stock ex- change. “Guarantee” means, any obligation, contingent or otherwise, of any Person directly or indirectly guarantee- ing any Indebtedness of any other Person, including any such obligation, direct or indirect, contingent or otherwise, of such Person: (1) to purchase or pay (or advance or supply funds for the purchase or payment of) such In- debtedness of such other Person (whether arising by virtue of partnership arrangements, or by agreements to keep-well, to purchase assets, goods, securities or services, to take-or-pay or to maintain financial state- ment conditions or otherwise); or (2) entered into primarily for purposes of assuring in any other manner the obligee of such Indebtedness of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part); provided, however, that the term “Guarantee” will not include (x) endorsements for collection or deposit in the ordi- nary course of business or consistent with past practice and (y) standard contractual indemnities or product warran- ties provided in the ordinary course of business, and provided, further, that the amount of any Guarantee shall be deemed to be the lower of (i) an amount equal to the stated or determinable amount of the primary obligation in re- spect of which such Guarantee is made and (ii) the maximum amount for which such guaranteeing Person may be liable pursuant to the terms of the instrument embodying such Guarantee or, if such Guarantee is not an uncondi- tional guarantee of the entire amount of the primary obligation and such maximum amount is not stated or determi-
![Page 21](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi021.jpg)
-16- nable, the amount of such guaranteeing Person’s maximum reasonably anticipated liability in respect thereof as de- termined by such Person in good faith. The term “Guarantee” used as a verb has a corresponding meaning. “Guarantor” means any Restricted Subsidiary that Guarantees the Notes, until such Note Guarantee is re- leased in accordance with the terms of this Indenture. “Hedging Obligations” means, with respect to any Person, the obligations of such Person under any interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, commodity swap agreement, com- modity cap agreement, commodity collar agreement, foreign exchange contracts, currency swap agreement or simi- lar agreement providing for the transfer or mitigation of interest rate, commodity price or currency risks either gen- erally or under specific contingencies. “Holder” means each Person in whose name the Notes are registered on the Registrar’s books, which shall initially be the respective nominee of DTC. “IAI” means an institutional “accredited investor” as described in Rule 501(a)(1), (2), (3) or (7) under the Securities Act. “IFRS” means the International Financial Reporting Standards, as issued by the International Accounting Standards Board as in effect from time to time. “Immaterial Subsidiary” means, at any date of determination, each Restricted Subsidiary of the Company that (i) has not guaranteed any other Indebtedness of the Company and (ii) has Total Assets together with all other Immaterial Subsidiaries (as determined in accordance with GAAP) and Consolidated EBITDA of less than 5.0% of the Company’s Total Assets and Consolidated EBITDA (measured, in the case of Total Assets, at the end of the most recent fiscal period for which internal financial statements are available and, in the case of Consolidated EBITDA, for the most recently ended four consecutive fiscal quarters for which internal consolidated financial statements are available, in each case measured on a pro forma basis giving effect to any acquisitions or dispositions of the companies, division or lines of business since such balance sheet date or the start of such four quarter period, as applicable, and on or prior to the date of acquisition of such Subsidiary). “Incur” means issue, create, assume, enter into any Guarantee of, incur, extend or otherwise become liable for; provided, however, that any Indebtedness or Capital Stock of a Person existing at the time such Person becomes a Restricted Subsidiary (whether by merger, amalgamation, consolidation, acquisition or otherwise) will be deemed to be Incurred by such Restricted Subsidiary at the time it becomes a Restricted Subsidiary and the terms “Incurred” and “Incurrence” have meanings correlative to the foregoing and any Indebtedness pursuant to any revolving credit or similar facility shall only be “Incurred” at the time any funds are borrowed thereunder. “Indebtedness” means, with respect to any Person on any date of determination (without duplication): (1) the principal of indebtedness of such Person for borrowed money; (2) the principal of obligations of such Person evidenced by bonds, debentures, notes or other similar instruments; (3) all reimbursement obligations of such Person in respect of letters of credit, bankers’ ac- ceptances or other similar instruments (the amount of such obligations being equal at any time to the aggre- gate then undrawn and unexpired amount of such letters of credit or other instruments plus the aggregate amount of drawings thereunder that have not been reimbursed) (except to the extent such reimbursement obligations relate to trade payables and such obligations are satisfied within 30 days of Incurrence); (4) the principal component of all obligations of such Person to pay the deferred and unpaid purchase price of property (except trade payables), which purchase price is due more than one year after the date of placing such property in service or taking final delivery and title thereto;
![Page 22](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi022.jpg)
-17- (5) Capitalized Lease Obligations of such Person; (6) the principal component of all obligations, or liquidation preference, of such Person with respect to any Disqualified Stock or, with respect to any Restricted Subsidiary, any Preferred Stock (but excluding, in each case, any accrued dividends); (7) the principal component of all Indebtedness of other Persons secured by a Lien on any asset of such Person, whether or not such Indebtedness is assumed by such Person; provided, however, that the amount of such Indebtedness will be the lesser of (a) the fair market value of such asset at such date of determination (as determined in good faith by the Company) and (b) the amount of such Indebtedness of such other Persons; (8) Guarantees by such Person of the principal component of Indebtedness of other Persons to the extent Guaranteed by such Person; and (9) to the extent not otherwise included in this definition, net obligations of such Person un- der Hedging Obligations (the amount of any such obligations to be equal at any time to the net payments under such agreement or arrangement giving rise to such obligation that would be payable by such Person at the termination of such agreement or arrangement); with respect to clauses (1), (2), (4) and (5) above, 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 foot- notes thereto) of such Person prepared in accordance with GAAP; provided, that Indebtedness of any Parent Entity appearing upon the balance sheet of the Company solely by reason of push-down accounting under GAAP shall be excluded. The term “Indebtedness” shall not include any lease, concession or license of property (or Guarantee there- of) which would be considered an operating lease under GAAP as in effect on the Issue Date, any prepayments of deposits received from clients or customers in the ordinary course of business, or obligations under any license, permit or other approval (or Guarantees given in respect of such obligations) Incurred prior to the Issue Date or in the ordinary course of business or consistent with past practice. The amount of Indebtedness of any Person at any time in the case of a revolving credit or similar facility shall be the total amount of funds borrowed and then outstanding. The amount of any Indebtedness outstanding as of any date shall be (a) the accreted value thereof in the case of any Indebtedness issued with original issue discount and (b) the principal amount of Indebtedness, or liquidation preference thereof, in the case of any other Indebted- ness. Indebtedness shall be calculated without giving effect to the effects of Financial Accounting Standards Board Accounting Standards Codification Topic No. 815 and related interpretations to the extent such effects would oth- erwise increase or decrease an amount of Indebtedness for any purpose under this Indenture as a result of accounting for any embedded derivatives created by the terms of such Indebtedness. Notwithstanding the above provisions, in no event shall the following constitute Indebtedness: (i) Contingent Obligations Incurred in the ordinary course of business or consistent with past practice, other than Guarantees or other assumptions of Indebtedness; (ii) Cash Management Services; (iii) any lease, concession or license of property (or Guarantee thereof) which would be consid- ered an operating lease under GAAP as in effect on the Issue Date or any prepayments of deposits received from clients or customers in the ordinary course of business or consistent with past practice; (iv) obligations under any license, permit or other approval (or Guarantees given in respect of such obligations) incurred prior to the Issue Date or in the ordinary course of business or consistent with past practice;
![Page 23](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi023.jpg)
-18- (v) in connection with the purchase by the Company or any Restricted Subsidiary of any busi- ness, any post-closing payment adjustments to which the seller may become entitled to the extent such payment is determined by a final closing balance sheet or such payment depends on the performance of such business after the closing; provided, however, that, at the time of closing, the amount of any such payment is not determinable and, to the extent such payment thereafter becomes fixed and determined, the amount is paid in a timely manner; or (vi) for the avoidance of doubt, any obligations in respect of workers’ compensation claims, early retirement or termination obligations, pension fund obligations or contributions or similar claims, obliga- tions or contributions or social security or wage Taxes. “Indenture” means this Indenture as amended or supplemented from time to time. “Independent Financial Advisor” means an investment banking or accounting firm of international standing or any third party appraiser of international standing; provided, however, that such firm or appraiser is not an Affili- ate of the Company. “Initial Notes” has the meaning ascribed to it in the second introductory paragraph of this Indenture. “Initial Purchasers” means Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, RBC Capital Markets, LLC, SunTrust Xxxxxxxx Xxxxxxxx, Inc., Macquarie Capital (USA) Inc. and Xxxxxxxxx LLC. “Intercompany License Agreement” means any cost sharing agreement, commission or royalty agreement, license or sub-license agreement, distribution agreement, services agreement, intellectual property rights transfer agreement or any related agreements, in each case where all the parties to such agreement are the Company or a Restricted Subsidiary. “Investment” means, with respect to any Person, all investments by such Person in other Persons (including Affiliates) in the form of any direct or indirect advance, loan or other extensions of credit (other than advances or extensions of credit to customers, suppliers, directors, officers or employees of any Person in the ordinary course of business or consistent with past practice, and excluding any debt or extension of credit represented by a bank deposit other than a time deposit) or capital contribution to (by means of any transfer of cash or other property to others or any payment for property or services for the account or use of others), or the Incurrence of a Guarantee of any obli- gation of, or any purchase or acquisition of Capital Stock, Indebtedness or other similar instruments issued by, such other Persons and all other items that are or would be classified as investments on a balance sheet prepared on the basis of GAAP; provided, however, that endorsements of negotiable instruments and documents in the ordinary course of business or consistent with past practice will not be deemed to be an Investment. If the Company or any Restricted Subsidiary issues, sells or otherwise disposes of any Capital Stock of a Person that is a Restricted Subsid- iary such that, after giving effect thereto, such Person is no longer a Restricted Subsidiary, any Investment by the Company or any Restricted Subsidiary in such Person remaining after giving effect thereto will be deemed to be a new Investment at such time. For purposes of Section 3.3 and Section 3.20 hereof: (1) “Investment” will include the portion (proportionate to the Company’s equity interest in a Restricted Subsidiary to be designated as an Unrestricted Subsidiary) of the fair market value of the net as- sets of such Restricted Subsidiary of the Company at the time that such Restricted Subsidiary is designated an Unrestricted Subsidiary; provided, however, that upon a redesignation of such Subsidiary as a Restricted Subsidiary, the Company will be deemed to continue to have a permanent “Investment” in an Unrestricted Subsidiary in an amount (if positive) equal to (a) the Company’s “Investment” in such Subsidiary at the time of such redesignation less (b) the portion (proportionate to the Company’s equity interest in such Sub- sidiary) of the fair market value of the net assets (as conclusively determined by the Board of Directors of the Company in good faith) of such Subsidiary at the time that such Subsidiary is so re-designated a Re- stricted Subsidiary; and
![Page 24](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi024.jpg)
-19- (2) any property transferred to or from an Unrestricted Subsidiary will be valued at its fair market value at the time of such transfer, in each case as determined in good faith by the Board of Directors of the Company. “Investment Grade Securities” means: (1) securities issued or directly and fully Guaranteed or insured by the United States or Ca- nadian government or any agency or instrumentality thereof (other than Cash Equivalents); (2) securities issued or directly and fully guaranteed or insured by a member of the European Union, or any agency or instrumentality thereof (other than Cash Equivalents); (3) debt securities or debt instruments with a rating of “A-” or higher from S&P or “A3” or higher by Xxxxx’x or the equivalent of such rating by such rating organization or, if no rating of Xxxxx’x or S&P then exists, the equivalent of such rating by any other Nationally Recognized Statistical Ratings Organization, but excluding any debt securities or instruments constituting loans or advances among the Company and its Subsidiaries; and (4) investments in any fund that invests exclusively in investments of the type described in clauses (1), (2) and (3) above which fund may also hold cash and Cash Equivalents pending investment or distribution. “Investment Grade Status” shall occur when the Notes receive two of the following: (1) a rating of “BBB-” or higher from S&P; (2) a rating of “Baa3” or higher from Xxxxx’x; or (3) a rating of “BBB-” or higher from Fitch; or the equivalent of such rating by the above rating organizations or, if no rating of S&P, Xxxxx’x or Fitch then exists, the equivalent of such rating by any other Nationally Recognized Statistical Ratings Organization. “Issue Date” means April 1, 2015. “Leverage Ratio” as of any date of determination, means the ratio of: (1) Consolidated Total Indebtedness of the Company and its Restricted Subsidiaries at the time of determination, to (2) the Company’s Consolidated EBITDA for the most recently ended four full fiscal quar- ters for which financial statements are available immediately preceding the date on which such event for which such calculation is being made shall occur; provided, however, that: (a) if the Company or any Restricted Subsidiary has Incurred, repaid, repurchased, redeemed, retired, defeased or otherwise discharged any Indebtedness since the beginning of such period that remains outstanding on such date of determination or if the transaction giving rise to the need to calculate the Leverage Ratio involves an Incurrence, repayment, repurchase, redemp- tion, retirement, defeasement or other discharge of Indebtedness, Indebtedness at the end of such period, Consolidated EBITDA and Consolidated Interest Expense for such period will be calculat- ed after giving effect on a pro forma basis to such Incurrence, repayment, repurchase, redemption, retirement, defeasement or other discharge of Indebtedness as if such Indebtedness had been In- curred or repaid, repurchased, redeemed, retired, defeased or otherwise discharged on the first day of such period; provided, however, that the pro forma calculation shall not give effect to any In- debtedness Incurred on such date of determination pursuant to the provisions of Section 3.2(b);
![Page 25](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi025.jpg)
-20- (b) if since the beginning of such period the Company or any Restricted Subsidiary will have made any Asset Disposition or disposed of or discontinued any company, division, oper- ating unit, segment, business, group of related assets or line of business or if the transaction giving rise to the need to calculate the Leverage Ratio includes such an Asset Disposition, Consolidated EBITDA, Consolidated Interest Expense and Indebtedness for such period will be calculated after giving pro forma effect thereto (including the Incurrence of any Indebtedness) as if such Asset Disposition, disposition or discontinuation occurred on the first day of such period; (c) if since the beginning of such period the Company or any Restricted Subsidiary (by merger or otherwise) will have made an Investment in any Restricted Subsidiary (or any Per- son that becomes a Restricted Subsidiary or is merged with or into the Company or a Restricted Subsidiary) or an acquisition of assets, including any acquisition of assets occurring in connection with a transaction causing a calculation to be made hereunder, which constitutes all or substantial- ly all of a company, division, operating unit, segment, business or group of related assets or line of business, Consolidated EBITDA, Consolidated Interest Expense and Indebtedness for such period will be calculated after giving pro forma effect thereto (including the Incurrence of any Indebted- ness) as if such Investment or acquisition occurred on the first day of such period; and (d) if since the beginning of such period any Person (that subsequently became a Restricted Subsidiary or was merged with or into the Company or any Restricted Subsidiary since the beginning of such period) will have Incurred any Indebtedness or discharged any Indebtedness or made any disposition or any Investment or acquisition of assets that would have required an ad- justment pursuant to clause (a), (b) or (c) above if made by the Company or a Restricted Subsidi- ary during such period, Consolidated EBITDA, Consolidated Interest Expense and Indebtedness for such period will be calculated after giving pro forma effect thereto as if such transaction oc- curred on the first day of such period. The pro forma calculations will be determined in good faith by a responsible financial or accounting Of- ficer of the Company. If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest expense on such Indebtedness will be calculated as if the rate in effect on the date of determination had been the applicable rate for the entire period (taking into account any interest rate agreement applicable to such Indebted- ness). Notwithstanding anything in this definition to the contrary, when calculating the Leverage Ratio in connec- tion with a Limited Condition Acquisition, the date of determination of such ratio and of any default or event of de- fault blocker shall, at the option of the Company, be the date the definitive agreements for such Limited Condition Acquisition are entered into and such ratios shall be calculated on a pro forma basis after giving effect to such Lim- ited Condition Acquisition and the other transactions to be entered into in connection therewith (including any incur- rence of Indebtedness and the use of proceeds thereof) as if they occurred at the beginning of the four-quarter refer- ence period, and, for the avoidance of doubt, (x) if any such ratios are exceeded as a result of fluctuations in such ratio (including due to fluctuations in Consolidated EBITDA of the Company or the target company) at or prior to the consummation of the relevant Limited Condition Acquisition, such ratio will not be deemed to have been ex- ceeded as a result of such fluctuations solely for purposes of determining whether the Limited Condition Acquisition is permitted hereunder and (y) such ratio shall not be tested at the time of consummation of such Limited Condition Acquisition or related transactions; provided further, that if the Company elects to have such determination occur at the time of entry into such definitive agreement, any such transaction shall be deemed to have occurred on the date the definitive agreements are entered and outstanding thereafter for purposes of subsequently calculating any ratios under this Indenture after the date of such agreement and before the consummation of such Limited Condition Ac- quisition and to the extent baskets were utilized in satisfying any covenants, such baskets shall be deemed utilized, but any calculation of Total Assets or Consolidated Net Income for purposes of other incurrences of Indebtedness or Liens or making of Restricted Payments (not related to such Limited Condition Acquisition) shall not reflect such Limited Condition Acquisition until it is closed. “License Subsidiary” means a wholly-owned Subsidiary of the Company that (x) owns no material assets other than FCC Licenses and related rights and (y) has no material liabilities other than (i) trade payables incurred in
![Page 26](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi026.jpg)
-21- the ordinary course of business and (ii) tax liabilities, other governmental charges and other liabilities incidental to ownership of such rights. “Lien” means any mortgage, pledge, security interest, encumbrance, lien, hypothecation or charge of any kind (including any conditional sale or other title retention agreement or lease in the nature thereof). “Limited Condition Acquisition” means any acquisition, including by means of a merger or consolidation, by the Company or one or more of its Restricted Subsidiaries, the consummation of which is not conditioned upon the availability of, or on obtaining, third party financing; provided that for purposes of determining compliance with Section 3.3 hereof, the Consolidated Net Income (and any other financial defined term derived therefrom) shall not include any Consolidated Net Income of or attributable to the target company or assets associated with any such Limited Condition Acquisition unless and until the closing of such Limited Condition Acquisition shall have actual- ly occurred. “Management Advances” means loans or advances made to, or Guarantees with respect to loans or advanc- es made to, directors, officers, employees or consultants of any Parent Entity, the Company or any Restricted Sub- sidiary: (1) (a) in respect of travel, entertainment or moving related expenses Incurred in the ordinary course of business or consistent with past practice or (b) for purposes of funding any such person’s pur- chase of Capital Stock (or similar obligations) of the Company, its Subsidiaries or any Parent Entity with (in the case of this sub-clause (b)) the approval of the Board of Directors; (2) in respect of moving related expenses Incurred in connection with any closing or xxxxxxx- dation of any facility or office; or (3) not exceeding $15.0 million in the aggregate outstanding at any time. “Xxxxx’x” means Xxxxx’x Investors Service, Inc. or any of its successors or assigns that is a Nationally Recognized Statistical Rating Organization. “Nationally Recognized Statistical Rating Organization” means a nationally recognized statistical rating organization within the meaning of Rule 436 under the Securities Act. “Net Available Cash” from an Asset Disposition means cash payments received (including any cash pay- ments received by way of deferred payment of principal pursuant to a note or installment receivable or otherwise and net proceeds from the sale or other disposition of any securities received as consideration, but only as and when received, but excluding any other consideration received in the form of assumption by the acquiring person of In- debtedness or other obligations relating to the properties or assets that are the subject of such Asset Disposition or received in any other non-cash form) therefrom, in each case net of: (1) all legal, accounting, investment banking, title and recording tax expenses, commissions and other fees and expenses Incurred, and all Taxes paid, reasonably estimated to be actually payable or ac- crued as a liability under GAAP (including, for the avoidance of doubt, any income, withholding and other Taxes payable as a result of the distribution of such proceeds to the Company and after taking into account any available tax credits or deductions and any tax sharing agreements), as a consequence of such Asset Disposition, including distributions for Related Taxes; (2) all payments made on any Indebtedness which is secured by any assets subject to such Asset Disposition, in accordance with the terms of any Lien upon such assets, or which by applicable law be repaid out of the proceeds from such Asset Disposition; (3) all distributions and other payments required to be made to minority interest holders (oth- er than any Parent Entity, the Company or any of its respective Subsidiaries) in Subsidiaries or joint ven- tures as a result of such Asset Disposition; and
![Page 27](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi027.jpg)
-22- (4) the deduction of appropriate amounts required to be provided by the seller as a reserve, on the basis of GAAP, against any liabilities associated with the assets disposed of in such Asset Disposi- tion and retained by the Company or any Restricted Subsidiary after such Asset Disposition. “Net Cash Proceeds,” with respect to any issuance or sale of Capital Stock, means the cash proceeds of such issuance or sale net of attorneys’ fees, accountants’ fees, underwriters’ or placement agents’ fees, listing fees, discounts or commissions and brokerage, consultant and other fees and charges actually Incurred in connection with such issuance or sale and net of Taxes paid or reasonably estimated to be actually payable as a result of such issu- ance or sale (including, for the avoidance of doubt, any income, withholding and other Taxes payable as a result of the distribution of such proceeds to the Company and after taking into account any available tax credit or deductions and any tax sharing agreements). “Non-Guarantor” means any Restricted Subsidiary of the Company that is not a Guarantor. “Non-U.S. Person” means a Person who is not a U.S. Person (as defined in Regulation S). “Note Documents” means the Notes (including Additional Notes), the Note Guarantees and this Indenture. “Notes” has the meaning ascribed to it in the second introductory paragraph of this Indenture. “Notes Custodian” means the custodian with respect to the Global Notes (as appointed by DTC), or any successor Person thereto and shall initially be the Trustee. “Oaktree” means, collectively, Oaktree Capital Management, L.P. and Oaktree Capital Group Holdings, GP, LLC, and funds or partnerships related to, or managed or advised by any of them or any Affiliate of any of them. “Obligations” means any principal, interest (including interest accruing on or after the filing of any petition in bankruptcy or for reorganization relating to the Company or any Guarantor whether or not a claim for Post- Petition Interest is allowed in such proceedings), penalties, fees, indemnifications, reimbursements (including, with- out limitation, reimbursement obligations with respect to letters of credit and bankers’ acceptances), damages and other liabilities payable under the documentation governing any Indebtedness. “Offering Memorandum” means the final offering memorandum, dated March 24, 2015 relating to the of- fering by the Company of $300.0 million principal amount of 6.500% Senior Notes due 2023 and any future offer- ing memorandum relating to Additional Notes. “Officer” means, with respect to any Person, (1) the Chairman of the Board of Directors, the Chief Execu- tive Officer, the President, the Chief Financial Officer, any Vice President, the Treasurer, any Managing Director, or the Secretary (a) of such Person or (b) if such Person is owned or managed by a single entity, of such entity, or (2) any other individual designated as an “Officer” for the purposes of this Indenture by the Board of Directors of such Person. “Officer’s Certificate” means, with respect to any Person, a certificate signed by one Officer of such Per- son. “Opinion of Counsel” means a written opinion from legal counsel who is reasonably satisfactory to the Trustee. The counsel may be an employee of or counsel to the Company or its Subsidiaries. “Parent Entity” means any direct or indirect parent of the Company. “Parent Entity Expenses” means: (1) costs (including all professional fees and expenses) Incurred by any Parent Entity in con- nection with reporting obligations under or otherwise Incurred in connection with compliance with applica-
![Page 28](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi028.jpg)
-23- ble laws, rules or regulations of any governmental, regulatory or self-regulatory body or stock exchange, this Indenture or any other agreement or instrument relating to the Notes, the Guarantees or any other In- debtedness of the Company or any Restricted Subsidiary, including in respect of any reports filed or deliv- ered with respect to the Securities Act, Exchange Act or the respective rules and regulations promulgated thereunder; (2) customary indemnification obligations of any Parent Entity owing to directors, officers, employees or other Persons under its articles, charter, by-laws, partnership agreement or other constating documents or pursuant to written agreements with any such Person to the extent relating to the Company and its Subsidiaries; (3) obligations of any Parent Entity in respect of director and officer insurance (including premiums therefor) to the extent relating to the Company and its Subsidiaries; (4) (x) general corporate overhead expenses, including professional fees and expenses and (y) other operational expenses of any Parent Entity related to the ownership or operation of the business of the Company or any of its Restricted Subsidiaries; (5) customary expenses Incurred by any Parent Entity in connection with any offering, sale, conversion or exchange of Capital Stock or Indebtedness; and (6) amounts to finance Investments that would otherwise be permitted to be made pursuant to Section 3.3 hereof if made by the Company; provided, that (A) such Restricted Payment shall be made sub- stantially concurrently with the closing of such Investment, (B) such direct or indirect parent company shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the capital of the Company or one of its Restricted Subsidiaries or (2) the merger, consolidation or amalgamation of the Person formed or acquired into the Company or one of its Restricted Subsidiaries (to the extent not prohibited by Section 4.1 hereof) in order to consummate such In- vestment, (C) such direct or indirect parent company and its Affiliates (other than the Company or a Re- stricted Subsidiary) receives no consideration or other payment in connection with such transaction except to the extent the Company or a Restricted Subsidiary could have given such consideration or made such payment in compliance with this Indenture and such consideration or other payment is included as a Re- stricted Payment under this Indenture, (D) any property received by the Company shall not increase amounts available for Restricted Payments pursuant to Section 3.3(a)(iii)(C) and (E) such Investment shall be deemed to be made by the Company or such Restricted Subsidiary pursuant to another provision of this covenant or pursuant to the definition of “Permitted Investments.” “Pari Passu Indebtedness” means Indebtedness of the Company which ranks equally in right of payment to the Notes or of any Guarantor if such Indebtedness ranks equally in right of payment to the Guarantees of the Notes. “Paying Agent” means any Person authorized by the Company to pay the principal of (and premium, if any) or interest on any Note on behalf of the Company. “Permitted Asset Swap” means the concurrent purchase and sale or exchange of assets used or useful in a Similar Business or a combination of such assets and cash, Cash Equivalents between the Company or any of its Restricted Subsidiaries and another Person; provided that any cash or Cash Equivalents received in excess of the value of any cash or Cash Equivalents sold or exchanged must be applied in accordance with Section 3.5 hereof. “Permitted Holders” means, collectively, (1) Oaktree, (2) GE Capital, (3) any one or more Persons, togeth- er with such Persons’ Affiliates, whose beneficial ownership constitutes or results in a Change of Control in respect of which a Change of Control Offer is made in accordance with the requirements of this Indenture, (4) members of management of the Company (or Parent Entities), (5) any Person who is acting solely as an underwriter in connec- tion with a public or private offering of Capital Stock of any Parent Entity or the Company, acting in such capacity, and (6) any group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act or any successor provision) of which any of the foregoing are members; provided that, in the case of such group and without giving
![Page 29](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi029.jpg)
-24- effect to the existence of such group or any other group, Oaktree and GE Capital and members of management of the Company, collectively, have beneficial ownership of more than 50% of the total voting power of the Voting Stock of the Company or Parent Entities held by such group. “Permitted Investment” means (in each case, by the Company or any of its Restricted Subsidiaries): (1) Investments in (a) a Restricted Subsidiary (including the Capital Stock of a Restricted Subsidiary) or the Company or (b) a Person (including the Capital Stock of any such Person) that will, upon the making of such Investment, become a Restricted Subsidiary; (2) Investments in another Person if such Person is engaged in any Similar Business and as a result of such Investment such other Person is merged, amalgamated, consolidated or otherwise combined with or into, or transfers or conveys all or substantially all its assets to, the Company or a Restricted Sub- sidiary; (3) Investments in cash, Cash Equivalents or Investment Grade Securities; (4) Investments in receivables owing to the Company or any Restricted Subsidiary created or acquired in the ordinary course of business or consistent with past practice; (5) Investments in payroll, travel and similar advances to cover matters that are expected at the time of such advances ultimately to be treated as expenses for accounting purposes and that are made in the ordinary course of business or consistent with past practice; (6) Management Advances; (7) Investments received in settlement of debts created in the ordinary course of business or consistent with past practice and owing to the Company or any Restricted Subsidiary or in exchange for any other Investment or accounts receivable held by the Company or any such Restricted Subsidiary, or as a result of foreclosure, perfection or enforcement of any Lien, or in satisfaction of judgments or pursuant to any plan of reorganization or similar arrangement including upon the bankruptcy or insolvency of a debtor or otherwise with respect to any secured Investment or other transfer of title with respect to any secured In- vestment in default; (8) Investments made as a result of the receipt of non-cash consideration from a sale or other disposition of property or assets, including an Asset Disposition; (9) Investments existing or pursuant to agreements or arrangements in effect on the Issue Date and any modification, replacement, renewal or extension thereof; provided that the amount of any such Investment may not be increased except (a) as required by the terms of such Investment as in exist- ence on the Issue Date or (b) as otherwise permitted under this Indenture; (10) Hedging Obligations, which transactions or obligations are Incurred in compliance with Section 3.2(b)(6) hereof; (11) pledges or deposits with respect to leases or utilities provided to third parties in the ordi- nary course of business or Liens otherwise described in the definition of “Permitted Liens” or made in con- nection with Liens permitted under Section 3.6 hereof; (12) any Investment to the extent made using Capital Stock of the Company (other than Dis- qualified Stock) or Capital Stock of any Parent Entity as consideration; (13) any transaction to the extent constituting an Investment that is permitted and made in ac- cordance with Section 3.8(b) hereof (except those described in Sections 3.8(b)(1), (3), (6), (7), (9), (12) and (14));
![Page 30](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi030.jpg)
-25- (14) Investments consisting of purchases and acquisitions of inventory, supplies, materials and equipment or licenses or leases of intellectual property, in any case, in the ordinary course of business and in accordance with this Indenture; (15) (i) Guarantees of Indebtedness not prohibited by Section 3.2 hereof and (other than with respect to Indebtedness) guarantees, keepwells and similar arrangements in the ordinary course of business and (ii) performance guarantees with respect to obligations that are permitted by this Indenture; (16) Investments consisting of xxxxxxx money deposits required in connection with a purchase agreement, or letter of intent, or other acquisitions to the extent not otherwise prohibited by this Indenture; (17) Investments of a Restricted Subsidiary acquired after the Issue Date or of an entity merged or amalgamated into the Company or merged or amalgamated into or consolidated with a Restrict- ed Subsidiary after the Issue Date to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger, amalgamation or consolidation and were in existence on the date of such acquisition, merger, amalgamation or consolidation; (18) Investments consisting of licensing or contribution of intellectual property pursuant to joint marketing arrangements with other Persons; (19) contributions to a “rabbi” trust for the benefit of employees or other grantor trust subject to claims of creditors in the case of a bankruptcy of the Company; (20) Investments in joint ventures and similar entities and Unrestricted Subsidiaries having an aggregate fair market value, when taken together with all other Investments made pursuant to this clause that are at the time outstanding, not to exceed the greater of $30.0 million and 3.25% of Total Assets at the time of such Investment (with the fair market value of each Investment being measured at the time made and without giving effect to subsequent changes in value); (21) additional Investments having an aggregate fair market value, taken together with all oth- er Investments made pursuant to this clause (21) that are at that time outstanding, not to exceed the greater of $30.0 million and 3.25% of Total Assets (with the fair market value of each Investment being measured at the time made and without giving effect to subsequent changes in value) plus the amount of any distribu- tions, dividends, payments or other returns in respect of such Investments (without duplication for purposes of Section 3.3 of any amounts applied pursuant to clause (c) of the first paragraph of such covenant); pro- vided that if such Investment is in Capital Stock of a Person that subsequently becomes a Restricted Subsid- iary, such Investment shall thereafter be deemed permitted under clause (1) or (2) above and shall not be included as having been made pursuant to this clause (21); (22) the Permitted Joint Venture; (23) repurchases of Notes; and (24) transactions entered into in order to consummate a Permitted Tax Restructuring. “Permitted Joint Venture” means the one-time contribution of assets to a joint venture; provided that the as- sets contributed do not generate in excess of $2.5 million of Consolidated EBITDA annually. “Permitted Liens” means, with respect to any Person: (1) Liens on assets or property of a Restricted Subsidiary that is not a Guarantor securing Indebtedness of any Restricted Subsidiary that is not a Guarantor; (2) pledges, deposits or Liens under workmen’s compensation laws, payroll taxes, unem- ployment insurance laws, social security laws or similar legislation, or insurance related obligations (in-
![Page 31](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi031.jpg)
-26- cluding pledges or deposits securing liability to insurance carriers under insurance or self-insurance ar- rangements), or in connection with bids, tenders, completion guarantees, contracts (other than for borrowed money) or leases, or to secure utilities, licenses, public or statutory obligations, or to secure surety, indem- nity, judgment, appeal or performance bonds, guarantees of government contracts (or other similar bonds, instruments or obligations), or as security for contested taxes or import or customs duties or for the pay- ment of rent, or other obligations of like nature, in each case Incurred in the ordinary course of business; (3) Liens imposed by law, including carriers’, warehousemen’s, mechanics’, landlords’, ma- terialmen’s, repairmen’s, construction contractors’ or other like Liens, in each case for sums not yet over- due for a period of more than 60 days or that are bonded or being contested in good faith by appropriate proceedings; (4) Liens for Taxes which are not overdue for a period of more than 60 days or which are be- ing contested in good faith by appropriate proceedings; provided that appropriate reserves required pursu- ant to GAAP have been made in respect thereof; (5) encumbrances, ground leases, easements (including reciprocal easement agreements), survey exceptions, 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, building codes or other restrictions (in- cluding minor defects or irregularities in title and similar encumbrances) as to the use of real properties or Liens incidental to the conduct of the business of the Company and its Restricted Subsidiaries or to the ownership of their properties 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 the Company and its Restricted Subsidiaries; (6) Liens (a) on assets or property of the Company or any Restricted Subsidiary securing Hedging Obligations or Cash Management Services permitted under this Indenture; (b) that are contractual rights of set-off or, in the case of clause (i) or (ii) below, other bankers’ Liens (i) relating to treasury, depos- itory and cash management services or any automated clearing house transfers of funds in the ordinary course of business and not given in connection with the issuance of Indebtedness, (ii) relating to pooled de- posit or sweep accounts to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the Company or any Subsidiary or (iii) relating to purchase orders and other agree- ments entered into with customers of the Company or any Restricted Subsidiary in the ordinary course of business; (c) on cash accounts securing Indebtedness incurred under Section 3.2(b)(8)(iii) with financial in- stitutions; (d) encumbering reasonable customary initial deposits and margin deposits and similar Liens at- taching to commodity trading accounts or other brokerage accounts incurred in the ordinary course of busi- ness, consistent with past practice and not for speculative purposes; and/or (e) (i) of a collection bank aris- ing under Section 4-210 of the UCC on items in the course of collection and (ii) in favor of a banking insti- tution arising as a matter of law encumbering deposits (including the right of set-off) arising in the ordinary course of business in connection with the maintenance of such accounts and (iii) arising under customary general terms of the account bank in relation to any bank account maintained with such bank and attaching only to such account and the products and proceeds thereof, which Liens, in any event, do not to secure any Indebtedness; (7) leases, licenses, subleases and sublicenses of assets (including real property and intellec- tual property rights), in each case entered into in the ordinary course of business; (8) Liens arising out of judgments, decrees, orders or awards not giving rise to an Event of Default so long as (a) any appropriate legal proceedings which may have been duly initiated for the review of such judgment, decree, order or award have not been finally terminated, (b) the period within which such proceedings may be initiated has not expired or (c) no more than 60 days have passed after (i) such judg- ment, decree, order or award has become final or (ii) such period within which such proceedings may be in- itiated has expired; (9) Liens (i) on assets or property of the Company or any Restricted Subsidiary for the pur- pose of securing Capitalized Lease Obligations or Purchase Money Obligations, or securing the payment of
![Page 32](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi032.jpg)
-27- all or a part of the purchase price of, or securing other Indebtedness Incurred to finance or refinance the ac- quisition, improvement or construction of, assets or property acquired or constructed in the ordinary course of business; provided that (a) the aggregate principal amount of Indebtedness secured by such Liens is oth- erwise permitted to be Incurred under this Indenture and (b) any such Liens may not extend to any assets or property of the Company or any Restricted Subsidiary other than assets or property acquired, improved, constructed or leased with the proceeds of such Indebtedness and any improvements or accessions to such assets and property and (ii) on any interest or title of a lessor under any Capitalized Lease Obligations or operating lease; (10) Liens perfected or evidenced by UCC financing statement filings (or similar filings in other applicable jurisdictions) regarding operating leases entered into by the Company and its Restricted Subsidiaries in the ordinary course of business; (11) Liens existing on the Issue Date, excluding Liens securing the Credit Agreement; (12) Liens on property, other assets or shares of stock of a Person at the time such Person be- comes a Restricted Subsidiary (or at the time the Company or a Restricted Subsidiary acquires such proper- ty, other assets or shares of stock, including any acquisition by means of a merger, amalgamation, xxxxxxx- dation or other business combination transaction with or into the Company or any Restricted Subsidiary); provided, however, that such Liens are not created, Incurred or assumed in anticipation of or in connection with such other Person becoming a Restricted Subsidiary (or such acquisition of such property, other assets or stock); provided, further, that such Liens are limited to all or part of the same property, other assets or stock (plus improvements, accession, proceeds or dividends or distributions in connection with the original property, other assets or stock) that secured (or, under the written arrangements under which such Liens arose, could secure) the obligations to which such Liens relate; (13) Liens on assets or property of the Company or any Restricted Subsidiary securing Indebt- edness or other obligations of the Company or such Restricted Subsidiary owing to the Company or another Restricted Subsidiary, or Liens in favor of the Company or any Restricted Subsidiary; (14) Liens securing Refinancing Indebtedness Incurred to refinance Indebtedness that was previously so secured, and permitted to be secured under this Indenture; provided that any such Lien is lim- ited to all or part of the same property or assets (plus improvements, accessions, proceeds or dividends or distributions in respect thereof) that secured (or, under the written arrangements under which the original Lien arose, could secure) the Indebtedness being refinanced or is in respect of property that is or could be the security for or subject to a Permitted Lien hereunder; (15) (a) mortgages, liens, security interests, restrictions, encumbrances or any other matters of record that have been placed by any government, statutory or regulatory authority, developer, landlord or other third party on property over which the Company or any Restricted Subsidiary of the Company has easement rights or on any leased property and subordination or similar arrangements relating thereto and (b) any condemnation or eminent domain proceedings affecting any real property; (16) any encumbrance or restriction (including put and call arrangements) with respect to Cap- ital Stock of any joint venture or similar arrangement pursuant to any joint venture or similar agreement; (17) Liens on property or assets under construction (and related rights) in favor of a contractor or developer or arising from progress or partial payments by a third party relating to such property or as- sets; (18) Liens arising out of conditional sale, title retention, hire purchase, consignment or similar arrangements for the sale of goods entered into in the ordinary course of business;
![Page 33](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi033.jpg)
-28- (19) Liens securing Indebtedness permitted to be Incurred under Credit Facilities, including any letter of credit facility relating thereto, that was permitted by the terms of this Indenture to be Incurred pursuant to Section 3.2(b)(1); (20) Liens to secure Indebtedness of any Non-Guarantor permitted by Section 3.2(b)(11); (21) Liens on Capital Stock or other securities or assets of any Unrestricted Subsidiary that se- cure Indebtedness of such Unrestricted Subsidiary; (22) any security granted over the marketable securities portfolio described in clause (9) of the definition of “Cash Equivalents” in connection with the disposal thereof to a third party; (23) 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 Per- son to facilitate the purchase, shipment or storage of such inventory or other goods; (24) Liens on equipment of the Company or any Restricted Subsidiary and located on the premises of any client or supplier in the ordinary course of business; (25) Liens on assets or securities deemed to arise in connection with and solely as a result of the execution, delivery or performance of contracts to sell such assets or securities if such sale is otherwise permitted by this Indenture; (26) Liens arising by operation of law or contract on insurance policies and the proceeds thereof to secure premiums thereunder, and Liens, pledges and deposits in the ordinary course of business securing liability for premiums or reimbursement or indemnification obligations of (including obligations in respect of letters of credit or bank guarantees for the benefits of) insurance carriers; (27) Liens solely on any xxxx xxxxxxx money deposits made in connection with any letter of in- tent or purchase agreement permitted under this Indenture; (28) Liens (i) on cash advances in favor of the seller of any property to be acquired in an In- vestment permitted pursuant to Permitted Investments to be applied against the purchase price for such In- vestment, and (ii) consisting of an agreement to sell any property in an asset sale permitted under Sec- tion 3.5, in each case, solely to the extent such Investment or asset sale, as the case may be, would have been permitted on the date of the creation of such Lien; (29) Liens securing Indebtedness and other obligations in an aggregate principal amount not to exceed $30.0 million at any one time outstanding; (30) Liens Incurred to secure Obligations in respect of any Indebtedness permitted to be In- curred pursuant to the covenant described under Section 3.2; provided that in the case of Liens Incurred pursuant to this clause (30), at the time of Incurrence and after giving pro forma effect thereto, the Xxxxxxx- dated Secured Leverage Ratio would be no greater than 4.00 to 1.00; (31) Liens securing any Obligations in respect of the Notes or this Indenture; and (32) Liens arising in connection with any Intercompany License Agreements. For purposes of this definition, the term Indebtedness shall be deemed to include interest on such Indebtedness in- cluding interest which increases the principal amount of such Indebtedness. In the event that a Permitted Lien meets the criteria of more than one of the types of Permitted Liens (at the time of incurrence or at a later date), the Compa- ny in its sole discretion may divide, classify or from time to time reclassify all or any portion of such Permitted Lien in any manner that complies with this Indenture and such Permitted Lien shall be treated as having been made pur-
![Page 34](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi034.jpg)
-29- suant only to the clause or clauses of the definition of “Permitted Lien” to which such Permitted Lien has been clas- sified or reclassified; provided, however, that the foregoing shall not apply to clause (19) above. “Permitted Tax Distribution” means: (a) if and for so long as the Company is a member of a group filing a consolidated or com- bined tax return for U.S. federal, state, local and/or foreign income Tax purposes with any Parent Entity, any dividends or other distributions to fund any U.S. federal, state, local and/or foreign income Taxes (as applicable) for which such Parent Entity is liable that are attributable to the income of the Company and/or the applicable Restricted Subsidiaries (or, to the extent of the amount actually received from its applicable Unrestricted Subsidiaries for such purpose, such Unrestricted Subsidiaries) up to an amount not to exceed the amount of any such Taxes that the Company, its applicable Restricted Subsidiaries and (to the extent described above) its applicable Unrestricted Subsidiaries would have been required to pay on a separate company basis or on a consolidated basis calculated as if the Company, its applicable Restricted Subsidiar- ies and (to the extent described above) its applicable Unrestricted Subsidiaries had paid Tax on a xxxxxxx- dated, combined or similar basis on behalf of an affiliated group consisting only of the Company and such Subsidiaries; and (b) for any taxable year (or portion thereof) ending after the Issue Date for which the Com- pany is treated as a disregarded entity, partnership, or other flow-through entity for federal, state, local and/or foreign income Tax purposes, the payment of dividends or other distributions to the Company’s di- rect owner(s) to fund the federal, state, local and/or foreign income Tax liability, as applicable, of such owner(s) (or, if a direct owner is a pass-through entity, of the indirect owner(s)) for such taxable year (or portion thereof) attributable to the operations and activities of the Company and its direct and indirect Sub- sidiaries, in an aggregate amount not to exceed the product of (x) the highest combined marginal federal and applicable state, provincial, territorial and/or local statutory Tax rate (after taking into account the de- ductibility of U.S. state and local income Tax for U.S. federal income Tax purposes and (y) the taxable in- come of the Company for such taxable year (or portion thereof). “Permitted Tax Restructuring” means any reorganizations and other activities related to tax planning and tax reorganization (as determined by the Company in good faith) entered into prior to, on or after the date hereof so long as such Permitted Tax Restructuring is not materially adverse to the Holders of the Notes. “Person” means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited liability company, government or any agency or political subdivision thereof or any other entity. “Post-Petition Interest” means any interest or entitlement to fees or expenses or other charges that accrue after the commencement of any bankruptcy or insolvency proceeding, whether or not allowed or allowable as a claim in any such bankruptcy or insolvency proceeding. “Predecessor Note” of any particular Note means every previous Note evidencing all or a portion of the same debt as that evidenced by such particular Note; and, for the purposes of this definition, any Note authenticated and delivered under Section 2.11 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Note shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Note. “Preferred Stock,” as applied to the Capital Stock of any Person, means Capital Stock of any class or clas- ses (however designated) which is preferred as to the payment of dividends or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such Person, over shares of Capital Stock of any other class of such Person. “Purchase Money Obligations” means any Indebtedness Incurred to finance or refinance the acquisition, leasing, construction or improvement of property (real or personal) or assets (including Capital Stock), and whether acquired through the direct acquisition of such property or assets or the acquisition of the Capital Stock of any Per- son owning such property or assets, or otherwise.
![Page 35](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi035.jpg)
-30- “QIB” means any “qualified institutional buyer” as such term is defined in Rule 144A. “Refinance” means refinance, refund, replace, renew, repay, modify, restate, defer, substitute, supplement, reissue, resell, extend or increase (including pursuant to any defeasance or discharge mechanism) and the terms “re- finances,” “refinanced” and “refinancing” as used for any purpose in this Indenture shall have a correlative meaning. “Refinancing Indebtedness” means Indebtedness that is Incurred to refund, refinance, replace, exchange, renew, repay or extend (including pursuant to any defeasance or discharge mechanism) any Indebtedness existing on the Issue Date or Incurred in compliance with this Indenture (including Indebtedness of the Company that refinances Indebtedness of any Restricted Subsidiary and Indebtedness of any Restricted Subsidiary that refinances Indebted- ness of the Company or another Restricted Subsidiary) including Indebtedness that refinances Refinancing Indebt- edness; provided, however, that: (1) if the Indebtedness being refinanced constitutes Subordinated Indebtedness, the Refinanc- ing Indebtedness has a final Weighted Average Life to Maturity at the time such Refinancing Indebtedness is Incurred that is the same as or greater than the final Weighted Average Life to Maturity of the Indebted- ness being refinanced or, if less, the Notes and such Refinancing Indebtedness is subordinated to the Notes on terms at least as favorable to the Holders as those contained in the documentation governing the Indebt- edness being refinanced; and (2) Refinancing Indebtedness shall not include: (i) Indebtedness, Disqualified Stock or Preferred Stock of a Subsidiary of the Com- pany that is not the Company or a Guarantor that refinances Indebtedness, Disqualified Stock or Preferred Stock of the Company or a Guarantor; or (ii) Indebtedness, Disqualified Stock or Preferred Stock of the Company or a Re- stricted Subsidiary that refinances Indebtedness, Disqualified Stock or Preferred Stock of an Unre- stricted Subsidiary. Refinancing Indebtedness in respect of any Credit Facility or any other Indebtedness may be Incurred from time to time after the termination, discharge or repayment of any such Credit Facility or other Indebtedness. “Regulation S” means Regulation S under the Securities Act. “Regulation S-X” means Regulation S-X under the Securities Act. “Related Taxes” means, without duplication, any Taxes, including sales, use, transfer, rental, ad valorem, value added, stamp, property, consumption, franchise, license, capital, registration, business, customs, net worth, gross receipts, excise, occupancy, intangibles or similar Taxes (other than (x) Taxes measured by income and (y) withholding Taxes), required to be paid (provided such Taxes are in fact paid) by any Parent Entity by virtue of its: (a) being organized or having Capital Stock outstanding (but not by virtue of owning stock or other equity interests of any corporation or other entity other than, directly or indirectly, the Company or any of the Company’s Subsidiaries) otherwise maintain its existence or good standing under applicable law; (b) being a holding company parent, directly or indirectly, of the Company or any of the Company’s Subsidiaries; (c) receiving dividends from or other distributions in respect of the Capital Stock of, directly or indirectly, the Company or any of the Company’s Subsidiaries; or
![Page 36](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi036.jpg)
-31- (d) having made any payment in respect to any of the items for which the Company is per- mitted to make payments to any Parent Entity pursuant to Section 3.3. “Restricted Investment” means any Investment other than a Permitted Investment. “Restricted Notes” means Initial Notes and Additional Notes bearing one of the restrictive legends de- scribed in Section 2.1(d). “Restricted Notes Legend” means the legend set forth in Section 2.1(d)(1) and, in the case of the Tempo- rary Regulation S Global Note, the legend set forth in Section 2.1(d)(2). “Restricted Subsidiary” means any Subsidiary of the Company other than an Unrestricted Subsidiary. “Reversion Date” means, during any period of time during which the Company and the Restricted Subsidi- aries are not subject to Sections 3.2, 3.3, 3.4, 3.5, 3.7, 3.8 and 4.1(a)(3) (collectively, the “Suspended Covenants”) as a result of a Covenant Suspension, the date on which the Notes cease to have Investment Grade Status or a Default or Event of Default occurs and is continuing, and after which date the Suspended Covenants will thereafter be rein- stated as if such covenants had never been suspended and such Suspended Covenants will be applicable pursuant to the terms of this Indenture (including in connection with performing any calculation or assessment to determine compliance with the terms of this Indenture). “Rule 144A” means Rule 144A under the Securities Act. “S&P” means Standard & Poor’s Investors Ratings Services or any of its successors or assigns that is a Na- tionally Recognized Statistical Rating Organization. “Sale and Leaseback Transaction” means any arrangement providing for the leasing by the Company or any of its Restricted Subsidiaries of any real or tangible personal property, which property has been or is to be sold or transferred by the Company or such Restricted Subsidiary to a third Person in contemplation of such leasing. “SEC” means the U.S. Securities and Exchange Commission or any successor thereto. “Secured Indebtedness” means any Indebtedness secured by a Lien other than Indebtedness with respect to Cash Management Services. “Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations of the SEC promulgated thereunder, as amended. “Significant Subsidiary” means any Restricted Subsidiary that would be a “significant subsidiary” as de- fined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as such regulation is in effect on the Issue Date. “Similar Business” means (a) any businesses, services or activities engaged in by the Company or any of its Subsidiaries or any Associates on the Issue Date and (b) any businesses, services and activities engaged in by the Company or any of its Subsidiaries or any Associates that are related, complementary, incidental, ancillary or simi- lar to any of the foregoing or are extensions or developments of any thereof. “Stated Maturity” means, with respect to any security, the date specified in such security as the fixed date on which the payment of principal of such security is due and payable, including pursuant to any mandatory redemp- tion provision, but shall not include any contingent obligations to repay, redeem or repurchase any such principal prior to the date originally scheduled for the payment thereof. “Subordinated Indebtedness” means, with respect to any person, any Indebtedness (whether outstanding on the Issue Date or thereafter Incurred) which is expressly subordinated in right of payment to the Notes pursuant to a written agreement.
![Page 37](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi037.jpg)
-32- “Subsidiary” means, with respect to any Person: (1) any corporation, association, or other business entity (other than a partnership, joint ven- ture, 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 elec- tion 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; or (2) any partnership, joint venture, limited liability company or similar entity of which: (a) more than 50% of the capital accounts, distribution rights, total equity and vot- ing interests or general or limited partnership interests, as applicable, are owned or controlled, di- rectly 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 in- terests or otherwise; and (b) such Person or any Subsidiary of such Person is a controlling general partner or otherwise controls such entity. “Taxes” means all present and future taxes, levies, imposts, deductions, charges, duties and withholdings and any charges of a similar nature (including interest, penalties and other liabilities with respect thereto) that are imposed by any government or other taxing authority. “TIA” means the Trust Indenture Act of 1939, as amended. “Total Assets” means, as of any date, the total consolidated assets of the Company and its Restricted Sub- sidiaries on a consolidated basis, as shown on the most recent consolidated balance sheet of the Company and its Restricted Subsidiaries, determined on a pro forma basis in a manner consistent with the pro forma basis contained in the definition of “Leverage Ratio.” “Transaction Expenses” means any fees or expenses incurred or paid by the Company or any Restricted Subsidiary in connection with the Transactions. “Transactions” means the issuance of the Notes, borrowings under the Credit Agreement, repayment of ex- isting indebtedness and other related transactions, in each case, as described in the Offering Memorandum. “Trust Officer” means, when used with respect to the Trustee, any vice president, assistant vice president, any trust officer or any other officer of the Trustee who shall have direct responsibility for the administration of this Indenture, or any other person to whom any corporate trust matter relating to this Indenture is referred because of such person’s knowledge of and familiarity with the particular subject. “Trustee” means the party named as such in this Indenture until a successor replaces it and, thereafter, means the successor. “UCC” means the Uniform Commercial Code as in effect from time to time in the State of New York. “Unrestricted Subsidiary” means: (1) any Subsidiary of the Company that at the time of determination is an Unrestricted Sub- sidiary (as designated by the Company in the manner provided below); and (2) any Subsidiary of an Unrestricted Subsidiary.
![Page 39](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi039.jpg)
-34- Term Defined in Section “Asset Disposition Offer” ........................................................................................... 3.5(b) “Authenticating Agent” .............................................................................................. 2.2 “Automatic Exchange” ............................................................................................... 2.6(e) “Automatic Exchange Date” ....................................................................................... 2.6(e) “Automatic Exchange Notice” ................................................................................... 2.6(e) “Automatic Exchange Notice Date” ........................................................................... 2.6(e) “Change of Control Offer” ......................................................................................... 3.9(a) “Change of Control Payment” .................................................................................... 3.9(a) “Change of Control Payment Date”............................................................................ 3.9(a)(2) “Clearstream” ............................................................................................................. 2.1(b) “Covenant Defeasance” .............................................................................................. 8.3 “Defaulted Interest” .................................................................................................... 2.15 “Euroclear” ................................................................................................................. 2.1(b) “Event of Default” ...................................................................................................... 6.1 “Excess Proceeds” ...................................................................................................... 3.5(b) “Foreign Dispostion” .................................................................................................. 3.5(d)(i) “Global Notes” ........................................................................................................... 2.1(b) “Guaranteed Obligations” ........................................................................................... 10.1 “Increased Amount” ................................................................................................... 3.6 “Initial Default” .......................................................................................................... 6.1(b) “Initial Lien” ............................................................................................................... 3.6 “Institutional Accredited Investor Global Note” ........................................................ 2.1(b) “Institutional Accredited Investor Notes” ................................................................... 2.1(b) “Issuer Order” ............................................................................................................. 2.2 “Legal Defeasance” .................................................................................................... 8.2
![Page 42](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi042.jpg)
-37- (C) whether such Additional Notes shall be Restricted Notes. In authenticating and delivering Additional Notes, the Trustee shall be entitled to receive and shall be fully protected in relying upon, in addition to the Opinion of Counsel and Officer’s Certificate required by Section 12.2, an Opinion of Counsel as to the due authorization, execution, delivery, validity and enforceability of such Additional Notes. The Initial Notes and the Additional Notes shall be considered collectively as a single class for all purpos- es of this Indenture. Holders of the Initial Notes and the Additional Notes will vote and consent together on all mat- ters to which such Holders are entitled to vote or consent as one class, and none of the Holders of the Initial Notes or the Additional Notes shall have the right to vote or consent as a separate class on any matter to which such Holders are entitled to vote or consent. If any of the terms of any Additional Notes are established by action taken pursuant to a Board Resolution of the Company, a copy of an appropriate record of such action shall be certified by the Secretary or any Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Officer’s Certificate and the indenture supplemental hereto setting forth the terms of the Additional Notes. (b) The Initial Notes are being offered and sold by the Company pursuant to a Purchase Agreement, dated March 24, 2015, among the Company, the guarantors named therein and the Initial Purchasers. The Initial Notes and any Additional Notes (if issued as Restricted Notes) (the “Additional Restricted Notes”) will be resold initially only to (A) Persons they reasonably believe to be QIBs in reliance on Rule 144A and (B) Non-U.S. Persons in reliance on Regulation S. Such Initial Notes and Additional Restricted Notes may thereafter be transferred to, among others, QIBs, purchasers in reliance on Regulation S, AIs and IAIs in accordance with Rule 501 under the Securities Act, in each case, in accordance with the procedure described herein. Additional Notes offered after the date hereof may be offered and sold by the Company from time to time pursuant to one or more purchase agree- ments in accordance with applicable law. Initial Notes and Additional Restricted Notes offered and sold to QIBs in the United States of America in reliance on Rule 144A (the “Rule 144A Notes”) shall be issued in the form of a permanent global Note substantially in the form of Exhibit A, which is hereby incorporated by reference and made a part of this Indenture, including appropriate legends as set forth in Section 2.1(d) (the “Rule 144A Global Note”), deposited with the Trustee, as cus- todian for DTC, duly executed by the Company and authenticated by the Trustee as hereinafter provided. The Rule 144A Global Note may be represented by more than one certificate, if so required by DTC’s rules regarding the maximum principal amount to be represented by a single certificate. The aggregate principal amount of the Rule 144A Global Note may from time to time be increased or decreased by adjustments made on the records of the Trustee, as custodian for DTC or its nominee, as hereinafter provided. Initial Notes and any Additional Restricted Notes offered and sold to non-U.S. Persons outside the United States of America (the “Regulation S Notes”) in reliance on Regulation S shall initially be issued in the form of a temporary global Note (the “Temporary Regulation S Global Note”). Beneficial interests in the Temporary Regula- tion S Global Note will be exchanged for beneficial interests in a corresponding permanent global Note substantially in the form of Exhibit A including appropriate legends as set forth in Section 2.1(d) (the “Permanent Regulation S Global Note” and, together with the Temporary Regulation S Global Note, each a “Regulation S Global Note”) within a reasonable period after the expiration of the Restricted Period (as defined below) upon delivery of the certi- fication contemplated by Section 2.7. Each Regulation S Global Note will be deposited upon issuance with, or on behalf of, the Trustee as custodian for DTC in the manner described in this Article II. Prior to the 40th day after the later of the commencement of the offering of the Initial Notes and the Issue Date (such period through and including such 40th day, the “Restricted Period”), interests in the Temporary Regulation S Global Note may only be trans- ferred to non-U.S. persons pursuant to Regulation S, unless exchanged for interests in a Global Note in accordance with the transfer and certification requirements described herein. Investors may hold their interests in the Regulation S Global Note through organizations other than Euro- clear or Clearstream that are participants in DTC’s system or directly through Euroclear or Clearstream, if they are participants in such systems, or indirectly through organizations which are participants in such systems. If such in- terests are held through Euroclear or Clearstream, Euroclear and Clearstream will hold such interests in the applica-
![Page 43](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi043.jpg)
-38- ble Regulation S Global Note on behalf of their participants through customers’ securities accounts in their respec- tive names on the books of their respective depositaries. Such depositaries, in turn, will hold such interests in the applicable Regulation S Global Note in customers’ securities accounts in the depositaries’ names on the books of DTC. The Regulation S Global Note may be represented by more than one certificate, if so required by DTC’s rules regarding the maximum principal amount to be represented by a single certificate. The aggregate principal amount of the Regulation S Global Note may from time to time be increased or decreased by adjustments made on the records of the Trustee, as custodian for DTC or its nominee, as hereinafter provided. Initial Notes and Additional Restricted Notes resold to IAIs (the “Institutional Accredited Investor Notes”) in the United States of America shall be issued in the form of a permanent global Note substantially in the form of Exhibit A including appropriate legends as set forth in Section 2.1(d) (the “Institutional Accredited Investor Global Note”) deposited with the Trustee, as custodian for DTC, duly executed by the Company and authenticated by the Trustee as hereinafter provided. The Institutional Accredited Investor Global Note may be represented by more than one certificate, if so required by DTC’s rules regarding the maximum principal amount to be represented by a single certificate. The aggregate principal amount of the Institutional Accredited Investor Global Note may from time to time be increased or decreased by adjustments made on the records of the Trustee, as custodian for DTC or its nom- inee, as hereinafter provided. Initial Notes and Additional Restricted Notes resold to AIs in the United States of America shall be issued in the form of a Definitive Note substantially in the form of Exhibit A including the legend as set forth in Sec- tion 2.1(d)(5) (an “Accredited Investor Note”). The Rule 144A Global Note, the Regulation S Global Note and the Institutional Accredited Investor Global Note are sometimes collectively herein referred to as the “Global Notes.” The principal of (and premium, if any) and interest on the Notes shall be payable at the office or agency of Paying Agent designated by the Company maintained for such purpose (which shall initially be the office of the Trustee maintained for such purpose), or at such other office or agency of the Company as may be maintained for such purpose pursuant to Section 2.3; provided, however, that, at the option of the Paying Agent, each installment of interest may be paid by (i) check mailed to addresses of the Persons entitled thereto as such addresses shall appear on the Notes Register or (ii) wire transfer to an account located in the United States maintained by the payee, subject to the last sentence of this paragraph. Payments in respect of Notes represented by a Global Note (including princi- pal, premium, if any, and interest) will be made by wire transfer of immediately available funds to the accounts specified by DTC. Payments in respect of Notes represented by Definitive Notes (including principal, premium, if any, and interest) held by a Holder of at least $1,000,000 aggregate principal amount of Notes represented by De- finitive Notes will be made in accordance with the Notes Register, or by wire transfer to a U.S. dollar account main- tained by the payee with a bank in the United States if such Holder elects payment by wire transfer by giving written notice to the Trustee or the Paying Agent to such effect designating such account no later than 15 days immediately preceding the relevant due date for payment (or such other date as the Trustee may accept in its discretion). The Notes may have notations, legends or endorsements required by law, stock exchange rule or usage, in addition to those set forth on Exhibit A and in Section 2.1(d). The Company shall approve any notation, endorse- ment or legend on the Notes. Each Note shall be dated the date of its authentication. The terms of the Notes set forth in Exhibit A are part of the terms of this Indenture and, to the extent applicable, the Company, the Guarantors and the Trustee, by their execution and delivery of this Indenture, expressly agree to be bound by such terms. (c) Denominations. The Notes shall be issuable only in fully registered form in minimum denomi- nations of $2,000 and any integral multiple of $1,000 in excess thereof. (d) Restrictive Legends. Unless and until (i) an Initial Note or an Additional Note issued as a Re- stricted Note is sold under an effective registration statement or (ii) the Company receives an Opinion of Counsel satisfactory to it to the effect that neither such legend nor the related restrictions on transfer are required in order to maintain compliance with the provisions of the Securities Act:
![Page 44](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi044.jpg)
-39- (1) the Rule 144A Global Note, the Regulation S Global Note and the Institutional Accredit- ed Investor Global Note shall bear the following legend on the face thereof: THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER XXXXXXX 0 XX XXX XXXXXX XXXXXX SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND THE SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF TOWNSQUARE THAT (A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (i) (a) TO A PERSON WHO IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (b) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (c) OUTSIDE THE UNITED STATES TO A NON-U.S. PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT, OR (d) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF TOWNSQUARE SO REQUESTS), (ii) TO TOWNSQUARE, OR (iii) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN CLAUSE (A) ABOVE. NO REPRESENTATION CAN BE MADE AS TO THE AVAILABILITY OF THE EXEMPTION PROVIDED BY RULE 144 FOR RESALE OF THE SECURITY EVIDENCED HEREBY. IN THE CASE OF THE REGULATION S GLOBAL NOTE: BY ITS ACQUISITION HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT. BY ITS ACQUISITION OF THIS SECURITY THE HOLDER AND ANY SUBSEQUENT TRANSFEREE HEREOF WILL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT EITHER (I) THE PURCHASER IS NOT ACQUIRING OR HOLDING SUCH NOTE OR AN INTEREST THEREIN WITH THE ASSETS OF (A) AN “EMPLOYEE BENEFIT PLAN” (AS DEFINED IN SECTION 3(3) OF ERISA) THAT IS SUBJECT TO ERISA, (B) A “PLAN” DESCRIBED IN SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), (C) ANY ENTITY DEEMED TO HOLD “PLAN ASSETS” OF ANY OF THE FOREGOING BY REASON OF AN EMPLOYEE BENEFIT PLAN’S OR PLAN’S INVESTMENT IN SUCH ENTITY OR (D) A GOVERNMENTAL PLAN OR CHURCH PLAN SUBJECT TO SUCH PROVISIONS THAT ARE SIMILAR TO SUCH PROVISIONS OF ERISA OR THE CODE (COLLECTIVELY, “SIMILAR LAWS”) OR (II) THE ACQUISITION AND HOLDING OF SUCH NOTE BY THE PURCHASER, THROUGHOUT THE PERIOD THAT IT HOLDS SUCH NOTE AND THE DISPOSITION OF SUCH NOTE OR AN INTEREST THEREIN WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE, A BREACH OF FIDUCIARY DUTY UNDER ERISA OR A VIOLATION OF ANY PROVISIONS OF ANY APPLICABLE SIMILAR LAW. (2) the Temporary Regulation S Global Note shall bear the following additional legend on the face thereof:
![Page 45](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi045.jpg)
-40- THIS SECURITY IS A TEMPORARY GLOBAL NOTE. PRIOR TO THE EXPIRATION OF THE RESTRICTED PERIOD APPLICABLE HERETO, BENEFICIAL INTERESTS HEREIN MAY NOT BE HELD BY ANY PERSON OTHER THAN (1) A NON-U.S. PERSON OR (2) A U.S. PERSON THAT PURCHASED SUCH INTEREST IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT. BENEFICIAL INTERESTS HEREIN ARE NOT EXCHANGEABLE FOR PHYSICAL NOTES OTHER THAN A PERMANENT GLOBAL NOTE IN ACCORDANCE WITH THE TERMS OF THE INDENTURE. TERMS IN THIS LEGEND ARE USED AS USED IN REGULATION S UNDER THE SECURITIES ACT. (3) Each Global Note, whether or not an Initial Note, shall bear the following legend on the face thereof: 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 IN 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 NOTE 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 NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF. (4) Each Accredited Investor Note shall bear the following legend on the face thereof: THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (B) IT IS A NON-U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO SUCH PURCHASER IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE, OR (C) IT IS AN “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501 UNDER THE SECURITIES ACT AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE EXPIRATION OF THE APPLICABLE HOLDING PERIOD WITH RESPECT TO RESTRICTED SECURITIES SET FORTH IN RULE 144 UNDER THE SECURITIES ACT, ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO IT IN THE JURISDICTION IN WHICH SUCH
![Page 53](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi053.jpg)
-48- evidence as are expressly required by, and to do so if and when expressly required by, the terms of this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof. Nei- ther the Trustee nor any of its agents shall have any responsibility for any actions taken or not taken by DTC. SECTION 2.7. Form of Certificate to be Delivered upon Termination of Restricted Period. [Date] Townsquare Media, Inc. 000 Xxxxxxxxx Xxxxxx Xxxxxxxxx, XX 00000 Attention: Chief Financial Officer Facsimile: (000) 000-0000 Wilmington Trust, National Association, as Trustee 000 Xxxxx Xxxx, Xxxxx 000 Xxxxxxxx, Xxxxxxxxxxx 00000-0000 Attention: Townsquare Media, Inc. Administrator Telecopy: 000-000-0000 with a copy to: Xxxxxxxx & Xxxxx LLP 000 Xxxxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxx Xxxxx, Esq. Facsimile: (000) 000-0000 Re: Townsquare Media, Inc. (the “Company”) 6.500% Senior Notes due 2023 (the “Notes”) Ladies and Gentlemen: This letter relates to Notes represented by a temporary global Note (the “Temporary Regulation S Global Note”). Pursuant to Section 2.1 of the Indenture dated as of April 1, 2015 relating to the Notes (the “Indenture”), we hereby certify that the persons who are the beneficial owners of $[________] principal amount of Notes represented by the Temporary Regulation S Global Note are persons outside the United States to whom beneficial interests in such Notes could be transferred in accordance with Rule 904 of Regulation S promulgated under the Securities Act of 1933, as amended. Accordingly, you are hereby requested to issue a Permanent Regulation S Global Note repre- senting the undersigned’s interest in the principal amount of Notes represented by the Temporary Regulation S Global Note, all in the manner provided by the Indenture. We certify that we [are][are not] an Affiliate of the Com- pany. The Trustee and the Company are entitled to conclusively rely upon this letter and are irrevocably author- ized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or offi- cial inquiry with respect to the matters covered hereby. Terms used in this letter have the meanings set forth in Regulation S. Very truly yours, [Name of Transferor]
![Page 54](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi054.jpg)
-49- By: Authorized Signature SECTION 2.8. Form of Certificate to be Delivered in Connection with Transfers to IAIs. [Date] Townsquare Media, Inc. 000 Xxxxxxxxx Xxxxxx Xxxxxxxxx, XX 00000 Attention: Chief Financial Officer Facsimile (000) 000-0000 Wilmington Trust, National Association, as Trustee 000 Xxxxx Xxxx, Xxxxx 000 Xxxxxxxx, Xxxxxxxxxxx 00000-0000 Attention: Townsquare Media, Inc. Administrator Telecopy: 000-000-0000 Re: Townsquare Media, Inc. (the “Company”) Ladies and Gentlemen: This certificate is delivered to request a transfer of $[_________] principal amount of the 6.500% Senior Notes due 2023 (the “Notes”) of TOWNSQUARE MEDIA, INC. (the “Company”). Upon transfer, the Notes would be registered in the name of the new beneficial owner as follows: Name: Address: Taxpayer ID Number: The undersigned represents and warrants to you that: 1. We are an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended (the “Securities Act”)) purchasing for our own account or for the account of such an institutional “accredited investor” at least $250,000 principal amount of the Notes, and we are acquiring the Notes not with a view to, or for offer or sale in connection with, any distribution in violation of the Securities Act. We have such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risk of our investment in the Notes and we invest in or purchase securities similar to the Notes in the normal course of our business. We and any accounts for which we are acting are each able to bear the economic risk of our or its investment. 2. We understand that the Notes have not been registered under the Securities Act and, unless so reg- istered, may not be sold except as permitted in the following sentence. We agree on our own behalf and on behalf of any investor account for which we are purchasing Notes to offer, sell or otherwise transfer such Notes prior to the date that is one year after the later of the date of original issue and the last date on which the Company or any affili- ate of the Company were the owner of such Notes (or any predecessor thereto) (the “Resale Restriction Termination Date”) only (a) to the Company or any Subsidiary thereof, (b) pursuant to an effective registration statement under the Securities Act, (c) in a transaction complying with the requirements of Rule 144A under the Securities Act, to a person we reasonably believe is a “qualified institutional buyer” under Rule 144A of the Securities Act (a “QIB”) that is purchasing for its own account or for the account of a QIB and to whom notice is given that the transfer is being made in reliance on Rule 144A, (d) pursuant to offers and sales to non-U.S. persons that occur outside the
![Page 55](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi055.jpg)
-50- United States within the meaning of Regulation S under the Securities Act, (e) to an institutional “accredited inves- tor” within the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act that is purchasing for its own ac- count or for the account of such an institutional “accredited investor,” in each case in a minimum principal amount of Notes of $250,000 for investment purposes and not with a view to or for offer or sale in connection with any dis- tribution in violation of the Securities Act or (f) pursuant to any other available exemption from the registration re- quirements of the Securities Act, subject in each of the foregoing cases to any requirement of law that the disposi- tion of our property or the property of such investor account or accounts be at all times within our or their control and in compliance with any applicable state securities laws. The foregoing restrictions on resale will not apply sub- sequent to the Resale Restriction Termination Date. If any resale or other transfer of the Notes is proposed to be made pursuant to clause (e) above prior to the Resale Restriction Termination Date, the transferor shall deliver a letter from the transferee substantially in the form of this letter to the Company and the Trustee, which shall provide, among other things, that the transferee is an institutional “accredited investor” (within the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act) and that it is acquiring such Notes for investment purposes and not for distribution in violation of the Securities Act. Each purchaser acknowledges that the Company and the Trustee reserve the right prior to any offer, sale or other transfer prior to the Resale Termination Date of the Notes pursuant to clauses (d), (e) or (f) above to require the delivery of an opinion of counsel, certifications and/or other information satisfactory to the Company. 3. We [are][are not] an Affiliate of the Company. TRANSFEREE: BY: SECTION 2.9. Form of Certificate to be Delivered in Connection with Transfers Pursuant to Regula- tion S. [Date] Townsquare Media, Inc. 000 Xxxxxxxxx Xxxxxx Xxxxxxxxx, XX 00000 Attention: Chief Financial Officer Facsimile: (000) 000-0000 Wilmington Trust, National Association, as Trustee 000 Xxxxx Xxxx, Xxxxx 000 Xxxxxxxx, Xxxxxxxxxxx 00000-0000 Attention: Townsquare Media, Inc. Administrator Telecopy: 000-000-0000 Re: Townsquare Media, Inc. (the “Company”) 6.500% Senior Notes due 2023 (the “Notes”) Ladies and Gentlemen: In connection with our proposed sale of $[________] aggregate principal amount of the Notes, we confirm that such sale has been effected pursuant to and in accordance with Regulation S under the United States Securities Act of 1933, as amended (the “Securities Act”), and, accordingly, we represent that: (a) the offer of the Notes was not made to a person in the United States; (b) either (i) at the time the buy order was originated, the transferee was outside the United States or we and any person acting on our behalf reasonably believed that the transferee was outside the
![Page 56](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi056.jpg)
-51- United States or (ii) the transaction was executed in, on or through the facilities of a designated off-shore securities market and neither we nor any person acting on our behalf knows that the transaction has been pre-arranged with a buyer in the United States; (c) no directed selling efforts have been made in the United States in contravention of the re- quirements of Rule 903(a)(2) or Rule 904(a)(2) of Regulation S, as applicable; and (d) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act. In addition, if the sale is made during a restricted period and the provisions of Rule 903(b)(2), Rule 903(b)(3) or Rule 904(b)(1) of Regulation S are applicable thereto, we confirm that such sale has been made in accordance with the applicable provisions of Rule 903(b)(2), Rule 903(b)(3) or Rule 904(b)(1), as the case may be. We also hereby certify that we [are][are not] an Affiliate of the Company and, to our knowledge, the trans- feree of the Notes [is][is not] an Affiliate of the Company. The Trustee and the Company are entitled to conclusively rely upon this letter and are irrevocably author- ized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or offi- cial inquiry with respect to the matters covered hereby. Terms used in this certificate have the meanings set forth in Regulation S. Very truly yours, [Name of Transferor] By: Authorized Signature
![Page 57](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi057.jpg)
-52- SECTION 2.10. Form of Certificate to be Delivered in Connection with Transfers to AIs. [Date] Townsquare Media, Inc. 000 Xxxxxxxxx Xxxxxx Xxxxxxxxx, XX 00000 Attention: Chief Financial Officer Facsimile: (000) 000-0000 Wilmington Trust, National Association, as Trustee 000 Xxxxx Xxxx, Xxxxx 000 Xxxxxxxx, Xxxxxxxxxxx 00000-0000 Attention: Townsquare Media, Inc. Administrator Telecopy: 000-000-0000 Re: Townsquare Media, Inc. (the “Company”) Ladies and Gentlemen: This certificate is delivered to request a transfer of $[_________] principal amount of the 6.500% Senior Notes due 2023 (the “Notes”) of TOWNSQUARE MEDIA, INC. (the “Company”). Upon transfer, the Notes would be registered in the name of the new beneficial owner as follows: Name: Address: Taxpayer ID Number: The undersigned represents and warrants to you that: 1. I am an “accredited investor” (as defined in Rule 501(a)(4) under the U.S. Securities Act of 1933, as amended (the “Securities Act”)) and I am acquiring the Notes not with a view to, or for offer or sale in connection with, any distribution in violation of the Securities Act. I have such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risk of my investment in the Notes and I invest in or purchase securities similar to the Notes in the normal course of my business. I am able to bear the economic risk of my investment. 2. I understand that the Notes have not been registered under the Securities Act and, unless so regis- tered, may not be sold except as permitted in the following sentence. I agree on my own behalf to offer, sell or oth- erwise transfer such Notes prior to the date that is one year after the later of the date of original issue and the last date on which the Company or any affiliate of the Company were the owner of such Notes (or any predecessor thereto) (the “Resale Restriction Termination Date”) only (a) to the Company or any Subsidiary thereof, (b) pursuant to an effective registration statement under the Securities Act, (c) in a transaction complying with the requirements of Rule 144A under the Securities Act, to a person I reasonably believe is a “qualified institutional buyer” under Rule 144A of the Securities Act (a “QIB”) that is purchasing for its own account or for the account of a QIB and to whom notice is given that the transfer is being made in reliance on Rule 144A, (d) pursuant to offers and sales to non-U.S. persons that occur outside the United States within the meaning of Regulation S under the Securities Act, (e) to an institutional “accredited investor” within the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act that is purchasing for its own account or for the account of such an institutional “accredited investor,” in each case in a minimum principal amount of Notes of $200,000 for investment purposes and not with a view to or for offer or sale in connection with any distribution in violation of the Securities Act or (f) pursuant to any other availa-
![Page 62](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi062.jpg)
-57- shall be deemed, in each case, to constitute an Incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be; (4) Indebtedness represented by (i) the Notes (other than any Additional Notes), including any Guarantee thereof, (ii) any Indebtedness (other than Indebtedness incurred pursuant to clauses (1) and (3)) outstanding on the Issue Date, (iii) Refinancing Indebtedness Incurred in respect of any Indebtedness described in this clause or clauses (5) or (10) of this Section 3.2(b) or Incurred pursuant to Section 3.2(a), and (iv) Management Advances; (5) Indebtedness of (x) the Company or any Restricted Subsidiary Incurred or issued to fi- xxxxx an acquisition or (y) Persons that are acquired by the Company or any Restricted Subsidiaries or merged into or consolidated with the Company or any Restricted Subsidiaries in accordance with the terms of this Indenture; provided that such Indebtedness is in an aggregate amount not to exceed (i) $20.0 million at any time outstanding plus (ii) unlimited additional Indebtedness if after giving effect to such acquisition, merger or consolidation, either (i) the Company would be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the Leverage Ratio test set forth in Section 3.2(a); (ii) the Leverage Ratio of the Company and the Restricted Subsidiaries would not be greater than immediately prior to such acquisition, merger or consolidation; or (iii) such Indebtedness constitutes Acquired Indebtedness (other than Indebtedness In- curred in contemplation of the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was otherwise acquired by the Company or a Restricted Subsidiary); provided, that in the case of this subclause (iii) that the only obligors with respect to such Indebtedness shall be those Persons who were obligors of such Indebtedness prior to such acquisition, merger or consolidation; (6) Hedging Obligations (excluding Hedging Obligations entered into for speculative pur- poses); (7) Indebtedness (i) represented by Capitalized Lease Obligations or Purchase Money Obli- gations, in an aggregate outstanding principal amount which, when taken together with the principal amount of all other Indebtedness Incurred pursuant to this clause (7) and then outstanding, does not exceed the greater of (x) $20.0 million and (y) 2.25% of Total Assets at the time of Incurrence and any Refinanc- ing Indebtedness in respect thereof and (ii) arising out of Sale and Leaseback Transactions in an aggregate principal amount at any one time outstanding not to exceed the greater of (x) $10.0 million and (y) 1.0% of Total Assets; (8) Indebtedness in respect of (i) workers’ compensation claims, self-insurance obligations, performance, indemnity, surety, judgment, appeal, advance payment, customs, value added or other tax or other guarantees or other similar bonds, instruments or obligations and completion guarantees and warran- ties provided by the Company or a Restricted Subsidiary or relating to liabilities, obligations or guarantees Incurred in the ordinary course of business or consistent with past practice, (ii) the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the or- dinary course of business or consistent with past practice; provided, however, that such Indebtedness is ex- tinguished within five Business Days of Incurrence; (iii) customer deposits and advance payments received in the ordinary course of business or consistent with past practice from customers for goods or services purchased in the ordinary course of business or consistent with past practice; (iv) letters of credit, bankers’ acceptances, guarantees or other similar instruments or obligations issued or relating to liabilities or obliga- tions Incurred in the ordinary course of business or consistent with past practice, and (v) any customary treasury, depositary, cash management, automatic clearinghouse arrangements, overdraft protections, cash pooling or netting or setting off arrangements or similar arrangements in the ordinary course of business or consistent with past practice;
![Page 63](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi063.jpg)
-58- (9) Indebtedness arising from agreements providing for guarantees, indemnification, obliga- tions in respect of earn-outs or other adjustments of purchase price or, in each case, similar obligations, in each case, Incurred or assumed in connection with the acquisition or disposition of any business or assets or Person or any Capital Stock of a Subsidiary (other than Guarantees of Indebtedness Incurred by any Person acquiring or disposing of such business or assets or such Subsidiary for the purpose of financing such ac- quisition or disposition); provided that the maximum liability of the Company and its Restricted Subsidiar- ies in respect of all such Indebtedness in connection with a disposition shall at no time exceed the gross proceeds, including the fair market value of non-cash proceeds (measured at the time received and without giving effect to any subsequent changes in value), actually received by the Company and its Restricted Subsidiaries in connection with such disposition; (10) Indebtedness in an aggregate outstanding principal amount which, when taken together with any Refinancing Indebtedness in respect thereof and the principal amount of all other Indebtedness In- curred pursuant to this clause (10) and then outstanding, will not exceed 100% of the Net Cash Proceeds received by the Company from the issuance or sale (other than to a Restricted Subsidiary) of its Capital Stock (other than Disqualified Stock, Designated Preferred Stock or an Excluded Contribution) or other- wise contributed to the equity (other than through the issuance of Disqualified Stock, Designated Preferred Stock or an Excluded Contribution) of the Company, in each case, subsequent to the Issue Date; provided, however, that (i) any such Net Cash Proceeds that are so received or contributed shall not increase the amount available for making Restricted Payments to the extent the Company and its Restricted Subsidiaries Incur Indebtedness in reliance thereon and (ii) any Net Cash Proceeds that are so received or contributed shall be excluded for purposes of Incurring Indebtedness pursuant to this clause (10) to the extent such Net Cash Proceeds or cash have been applied to make Restricted Payments; (11) Indebtedness of Non-Guarantors in an aggregate amount not to exceed the greater of (a) $20.0 million and (b) 2.25% of Total Assets at any time outstanding and any Refinancing Indebtedness in respect thereof; (12) Indebtedness consisting of promissory notes issued by the Company or any of its Subsid- iaries to any current or former employee, director or consultant of the Company, any of its Subsidiaries or any Parent Entity (or permitted transferees, assigns, estates, or heirs of such employee, director or consult- ant), to finance the purchase or redemption of Capital Stock of the Company or any Company that is per- mitted by Section 3.3; (13) Indebtedness of the Company or any of its Restricted Subsidiaries consisting of (i) the fi- nancing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case Incurred in the ordinary course of business or consistent with past practice; (14) Indebtedness in an aggregate outstanding principal amount which, when taken together with any Refinancing Indebtedness in respect thereof and the principal amount of all other Indebtedness In- curred pursuant to this clause and then outstanding, will not exceed the greater of (a) $40.0 million and (b) 4.25% of Total Assets; and (15) Indebtedness of the Company or any of its Restricted Subsidiaries to the extent proceeds of such Indebtedness are deposited and used to defease the Notes as described in Sections 8.1, 8.2, 8.3 and 11.1 hereof. (c) For purposes of determining compliance with, and the outstanding principal amount of any par- ticular Indebtedness Incurred pursuant to and in compliance with, this Section 3.2: (1) in the event that all or any portion of any item of Indebtedness meets the criteria of more than one of the types of Indebtedness described in the first and second paragraphs of this covenant, the Company, in its sole discretion, shall classify, and may from time to time reclassify, all or any portion of such item of Indebtedness and only be required to include the amount and type of such Indebtedness in any of the clauses of Section 3.2(a) or (b);
![Page 64](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi064.jpg)
-59- (2) additionally, all or any portion of any item of Indebtedness may later be classified as hav- ing been Incurred pursuant to any type of Indebtedness described in one of the clauses of Section 3.2(a) or (b) so long as such Indebtedness is permitted to be Incurred pursuant to such provision at the time of reclas- sification; (3) all Indebtedness outstanding on the Issue Date under the Credit Agreement shall be deemed initially incurred on the Issue Date under Section 3.2(b)(1); (4) in the case of any refinancing of any Indebtedness, such Indebtedness shall not include the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses Incurred in connection with such refinancing; (5) Guarantees of, or obligations in respect of letters of credit, bankers’ acceptances or other similar instruments relating to, or Liens securing, Indebtedness that is otherwise included in the determina- tion of a particular amount of Indebtedness shall not be included; (6) if obligations in respect of letters of credit, bankers’ acceptances or other similar instru- ments are Incurred pursuant to any Credit Facility and are being treated as Incurred pursuant to clause (a), (b)(1), (b)(7), (b)(10), (b)(11) or (b)(14) of this Section 3.2 and the letters of credit, bankers’ acceptances or other similar instruments relate to other Indebtedness, then such other Indebtedness shall not be included; (7) the principal amount of any Disqualified Stock of the Company or a Restricted Subsidi- ary, or Preferred Stock of a Restricted Subsidiary, will be equal to the greater of the maximum mandatory redemption or repurchase price (not including, in either case, any redemption or repurchase premium) or the liquidation preference thereof; (8) Indebtedness permitted by this covenant need not be permitted solely by reference to one provision permitting such Indebtedness but may be permitted in part by one such provision and in part by one or more other provisions of this covenant permitting such Indebtedness; and (9) the amount of any indebtedness outstanding as of any date shall be (a) the accreted value thereof in the case of any Indebtedness issued with original issue discount and (b) the principal amount of the Indebtedness, or liquidation preference thereof, in the case of any other Indebtedness. Accrual of interest, accrual of dividends, the accretion of accreted value, the accretion or amortization of original issue discount, the payment of interest in the form of additional Indebtedness, the payment of dividends in the form of additional shares of Preferred Stock or Disqualified Stock or the reclassification of commitments or ob- ligations not treated as Indebtedness due to a change in GAAP, will not be deemed to be an Incurrence of Indebted- ness for purposes of this Section 3.2. If at any time an Unrestricted Subsidiary becomes a Restricted Subsidiary, any Indebtedness of such Sub- sidiary shall be deemed to be Incurred by a Restricted Subsidiary of the Company as of such date (and, if such In- debtedness is not permitted to be Incurred as of such date under this Section 3.2, the Company, shall be in default of this Section 3.2). For purposes of determining compliance with any U.S. dollar-denominated restriction on the incurrence of Indebtedness, the U.S. dollar equivalent principal amount of Indebtedness denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was Incurred, in the case of term debt, or first committed, in the case of revolving credit debt; provided, that if such Indebtedness is Incurred to refinance other Indebtedness denominated in a foreign currency, and such refinancing would cause the applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed (a) the principal amount of such Indebtedness being refinanced plus (b) the aggregate amount of fees, underwriting discounts, premiums (in-
![Page 66](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi066.jpg)
-61- (i) a Default shall have occurred and be continuing (or would result immediately there- after therefrom); (ii) the Company is not able to Incur an additional $1.00 of Indebtedness pursuant to Section 3.2(a) after giving effect, on a pro forma basis, to such Restricted Payment; or (iii) the aggregate amount of such Restricted Payment and all other Restricted Payments made subsequent to April 4, 2012 (and not returned or rescinded) (including Restricted Payments permitted by Section 3.3(b)(1) (without duplication) and (10), but excluding all other Restricted Payments permitted by Section 3.3(b)) would exceed the sum of (without duplication): (A) 100% of Consolidated EBITDA for the period (treated as one account- ing period) from April 4, 2012 to the end of the most recent fiscal quarter ending prior to the date of such Restricted Payment for which internal consolidated financial statements of the Company are available (or, in the case such Consolidated EBITDA is a deficit, mi- nus 100% of such deficit); less 1.4 times Consolidated Interest Expense for the same pe- riod; (B) 100% of the aggregate Net Cash Proceeds, and the fair market value of property or assets or marketable securities, received by the Company from the issue or sale of its Capital Stock (other than Disqualified Stock or Designated Preferred Stock) subsequent to April 4, 2012 or otherwise contributed to the equity (other than through the issuance of Disqualified Stock or Designated Preferred Stock) of the Company subse- quent to April 4, 2012 (other than (x) Net Cash Proceeds or property or assets or market- able securities received from an issuance or sale of such Capital Stock to a Restricted Subsidiary or an employee stock ownership plan or trust established by the Company or any Subsidiary of the Company for the benefit of its employees to the extent funded by the Company or any Restricted Subsidiary, (y) Net Cash Proceeds or property or assets or marketable securities to the extent that any Restricted Payment has been made from such proceeds in reliance on Section 3.3(b)(6) and (z) Excluded Contributions); (C) 100% of the aggregate Net Cash Proceeds, and the fair market value of property or assets or marketable securities, received by the Company or any Restricted Subsidiary from the issuance or sale (other than to the Company or a Restricted Subsidi- ary of the Company or an employee stock ownership plan or trust established by the Company or any Subsidiary of the Company for the benefit of their employees to the ex- tent funded by the Company or any Restricted Subsidiary) by the Company or any Re- stricted Subsidiary subsequent to April 4, 2012 of any Indebtedness, Disqualified Stock or Designated Preferred Stock that has been converted into or exchanged for Capital Stock of the Company (other than Disqualified Stock or Designated Preferred Stock) plus, without duplication, the amount of any cash, and the fair market value of property or assets or marketable securities, received by the Company or any Restricted Subsidiary upon such conversion or exchange; (D) 100% of the aggregate amount received in cash and the fair market val- ue, as determined in good faith by the Company, of marketable securities or other proper- ty received by means of: (a) the sale or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances, and releases of guarantees, which constitute Restricted Investments by the Company or its Restricted Subsidiaries, in each case after April 4, 2012 or (ii) the sale (other than to the Company or a Restricted Subsidiary) of the stock of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than to the extent of the amount of the Investment that constituted a Permitted Investment which will instead increase the amount available
![Page 67](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi067.jpg)
-62- under the applicable clause of the definition of “Permitted Investments”) or a dividend from an Unrestricted Subsidiary after April 4, 2012; and (E) in the case of the redesignation of an Unrestricted Subsidiary as a Re- stricted Subsidiary or the merger, amalgamation or consolidation of an Unrestricted Sub- sidiary into the Company or a Restricted Subsidiary or the transfer of all or substantially all of the assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary after April 4, 2012, the fair market value of the Investment in such Unrestricted Subsidi- ary (or the assets transferred), as determined in good faith by the Company at the time of the redesignation of such Unrestricted Subsidiary as a Restricted Subsidiary or at the time of such merger, amalgamation or consolidation or transfer of assets (after taking into con- sideration any Indebtedness associated with the Unrestricted Subsidiary so designated or merged, amalgamated or consolidated or Indebtedness associated with the assets so trans- ferred), other than to the extent of the amount of the Investment that constituted a Permit- xxx Investment. (b) The foregoing provisions of Section 3.3(a) will not prohibit any of the following (collectively, “Permitted Payments”): (1) the payment of any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Inden- ture or the redemption, repurchase or retirement of Indebtedness if, at the date of any redemption notice, such payment would have complied with the provisions of this Indenture; (2) any purchase, repurchase, redemption, defeasance or other acquisition or retirement of Capital Stock or Subordinated Indebtedness made by exchange (including any such exchange pursuant to the exercise of a conversion right or privilege in connection with which cash is paid in lieu of the issuance of fractional shares) for, or out of the proceeds of the substantially concurrent sale of, Capital Stock of the Company (other than Disqualified Stock or Designated Preferred Stock) (“Refunding Capital Stock”) or a substantially concurrent contribution to the equity (other than through the issuance of Disqualified Stock or Designated Preferred Stock or through an Excluded Contribution) of the Company; provided, however, that to the extent so applied, the Net Cash Proceeds, or fair market value of property or assets or of marketable securities, from such sale of Capital Stock or such contribution will be excluded from Section 3.3(a)(iii); (3) any purchase, repurchase, redemption, defeasance or other acquisition or retirement of Subordinated Indebtedness made by exchange for, or out of the proceeds of the substantially concurrent sale of, Refinancing Indebtedness permitted to be Incurred pursuant to Section 3.2; (4) any purchase, repurchase, redemption, defeasance or other acquisition or retirement of Preferred Stock of the Company or a Restricted Subsidiary made by exchange for or out of the proceeds of the substantially concurrent sale of Preferred Stock of the Company or a Restricted Subsidiary, as the case may be, that, in each case, is permitted to be Incurred pursuant to Section 3.2; (5) any purchase, repurchase, redemption, defeasance or other acquisition or retirement of Subordinated Indebtedness or Disqualified Stock or Preferred Stock of a Restricted Subsidiary: (i) from Net Available Cash to the extent permitted under Section 3.5, but only if the Company shall have first complied with the terms described under Section 3.5 and purchased all Notes tendered pursuant to any offer to repurchase all the Notes required thereby, prior to purchas- ing, repurchasing, redeeming, defeasing or otherwise acquiring or retiring such Subordinated In- debtedness, Disqualified Stock or Preferred Stock; or (ii) to the extent required by the agreement governing such Subordinated Indebtedness, Disqualified Stock or Preferred Stock following the occurrence of a Change of Control (or other similar event described therein as a “change of control”), but only if the Company shall have first
![Page 68](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi068.jpg)
-63- complied with Section 3.9 and purchased all Notes tendered pursuant to the offer to repurchase all the Notes required thereby, prior to purchasing, repurchasing, redeeming, defeasing or otherwise acquiring or retiring such Subordinated Indebtedness, Disqualified Stock or Preferred Stock; or (iii) consisting of Acquired Indebtedness (other than Indebtedness Incurred (A) to pro- vide all or any portion of the funds utilized to consummate the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was otherwise ac- quired by the Company or a Restricted Subsidiary or (B) otherwise in connection with or contem- plation of such acquisition); (6) a Restricted Payment to pay for the repurchase, redemption or other acquisition or retire- ment for value of Capital Stock (other than Disqualified Stock) of the Company or of any Parent Entity held by any future, present or former employee, director or consultant of the Company, any of its Subsidi- aries or of any Parent Entity (or permitted transferees, assigns, estates, trusts or heirs of such employee, xx- xxxxxx or consultant) either pursuant to any management equity plan or stock option plan or any other man- agement or employee benefit plan or agreement or upon the termination of such employee, director or con- sultant’s employment or directorship; provided, however, that the aggregate Restricted Payments made un- der this clause (6) do not exceed $10.0 million in any calendar year (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum of $20.0 million in any calendar year); provided further that such amount in any calendar year may be increased by an amount not to ex- ceed: (i) the cash proceeds from the sale of Capital Stock (other than Disqualified Stock or Designated Preferred Stock) of the Company and, to the extent contributed to the capital of the Company (other than through the issuance of Disqualified Stock or Designated Preferred Stock or an Excluded Contribution), Capital Stock of any Parent Entity, in each case to members of man- agement, directors or consultants of the Company, any of its Subsidiaries or any Parent Entity that occurred after the Issue Date, to the extent the cash proceeds from the sale of such Capital Stock have not otherwise been applied to the payment of Restricted Payments by virtue of Sec- tion 3.3(b)(iii); plus (ii) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the Issue Date; less (iii) the amount of any Restricted Payments made in previous calendar years pursuant to clauses (i) and (ii) of this clause (6); and provided further that cancellation of Indebtedness owing to the Company or any Restricted Subsidiary from any future, present or former members of management, directors, employees or consultants of the Company, or any Parent Entity or Restricted Subsidiaries in connection with a repurchase of Capital Stock of the Company or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision of this Indenture; (7) the declaration and payment of dividends on Disqualified Stock, or Preferred Stock of a Restricted Subsidiary, Incurred in accordance with Section 3.2; (8) purchases, repurchases, redemptions, defeasances or other acquisitions or retirements of Capital Stock deemed to occur upon the exercise of stock options, warrants or other rights in respect there- of if such Capital Stock represents a portion of the exercise price thereof; (9) dividends, loans, advances or distributions to any Parent Entity or other payments by the Company or any Restricted Subsidiary in amounts equal to (without duplication): (i) the amounts required for any Parent Entity to pay any Parent Entity Expenses or any Related Taxes or for the Company to make a Permitted Tax Distribution; or
![Page 69](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi069.jpg)
-64- (ii) amounts constituting or to be used for purposes of making payments to the extent specified in Section 3.8(b)(2), (3), (5), (11) and (12); (10) the declaration and payment by the Company of, dividends on the common stock or common equity interests of the Company or any Parent following a public offering of such common stock or common equity interests, in an amount not to exceed 6% of the proceeds received by or contributed to the Company in or from any public offering in any fiscal year; (11) payments by the Company, or loans, advances, dividends or distributions to any Parent Entity to make payments, to holders of Capital Stock of the Company or any Parent Entity in lieu of the is- suance of fractional shares of such Capital Stock; provided, however, that any such payment, loan, advance, dividend or distribution shall not be for the purpose of evading any limitation of this covenant or otherwise to facilitate any dividend or other return of capital to the holders of such Capital Stock (as determined in good faith by the Board of Directors); (12) Restricted Payments that are made with Excluded Contributions; (13) (i) the declaration and payment of dividends on Designated Preferred Stock of the Com- pany issued after the Issue Date; and (ii) the declaration and payment of dividends on Refunding Capital Stock that is Preferred Stock; provided, however, that, in the case of clause (i), the amount of all dividends declared or paid pursuant to this clause shall not exceed the Net Cash Proceeds received by the Company or the aggregate amount contributed in cash to the equity (other than through the issuance of Disqualified Stock or an Excluded Contribution of the Company), from the issuance or sale of such Designated Pre- ferred Stock; provided further, in the case of clauses (i) and (ii), that for the most recently ended four fiscal quarters for which internal financial statements are available immediately preceding the date of issuance of such Designated Preferred Stock or declaration of such dividends on such Refunding Capital Stock, after giving effect to such payment on a pro forma basis the Company would be permitted to Incur at least $1.00 of additional Indebtedness pursuant to Section 3.2(a); (14) dividends or other distributions of Capital Stock of, or Indebtedness owed to the Compa- ny or a Restricted Subsidiary by, Unrestricted Subsidiaries (unless the Unrestricted Subsidiary’s principal asset is cash or Cash Equivalents); (15) any Restricted Payment made in connection with the Transactions and any costs and ex- penses (including all legal, accounting and other professional fees and expenses) related thereto or used to fund amounts owed to Affiliates in connection with the Transactions (including dividends to any Parent En- tity of the Company to permit payment by such Parent Entity of such amounts); (16) (i) so long as no Default or Event of Default has occurred and is continuing (or would re- xxxx from), Restricted Payments (including loans or advances) in an aggregate amount outstanding at the time made not to exceed the greater of $30.0 million and 3.25% of Total Assets at such time, and (ii) so long as no Default or Event of Default has occurred and is continuing (or would result therefrom), any Re- stricted Payments, so long as, immediately after giving pro forma effect to the payment of any such Re- stricted Payment and the Incurrence of any Indebtedness the net proceeds of which are used to make such Restricted Payment, the Leverage Ratio shall be no greater than 4.00 to 1.00; and (17) mandatory redemptions of Disqualified Stock issued as a Restricted Payment or as con- sideration for a Permitted Investment. For purposes of determining compliance with this Section 3.3, in the event that a Restricted Payment meets the criteria of more than one of the categories of Permitted Payments described in clauses (1) through (18) of para- graph (b), or is permitted pursuant to paragraph (a) of this Section 3.3, the Company will be entitled to classify such Restricted Payment (or portion thereof) on the date of its payment or later reclassify such Restricted Payment (or portion thereof) in any manner that complies with this Section 3.3.
![Page 72](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi072.jpg)
-67- (1) the Company or such Restricted Subsidiary, as the case may be, receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contin- gent or otherwise) at least equal to the fair market value (such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by the Company, of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); (2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), at least 75% of the consideration from such Asset Dispo- sition (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise), together with all other Asset Dispositions since the Issue Date (on a cumulative basis), received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; and (3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is ap- plied: (i) to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Indebtedness), (A) to prepay, repay or purchase any Indebted- ness of a Non-Guarantor (in each case, other than Indebtedness owed to the Company or any Re- stricted Subsidiary) or any Secured Indebtedness; including Indebtedness under the Credit Agree- ment (or any Refinancing Indebtedness in respect thereof) within 365 days from the later of (a) the date of such Asset Disposition and (b) the receipt of such Net Available Cash; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this clause (i), the Company or Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be reduced in an amount equal to the principal amount so prepaid, repaid or purchased; or (B) to prepay, repay or purchase Pari Passu Indebtedness; provided further that, to the extent the Company redeems, repays or repurchases Pari Passu Indebtedness pursuant to this clause (B), the Company shall equally and ratably reduce Obligations under the Notes as provided under Section 5.7, through open-market purchases (to the extent such purchases are at or above 100% of the principal amount thereof) or by making an offer (in accordance with the proce- dures set forth below for an Asset Disposition Offer) to all Holders to purchase their Notes at 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of Notes that would otherwise be prepaid; and (ii) to the extent the Company or such Restricted Subsidiary elects, to invest in or commit to invest in Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Company or another Restrict- ed Subsidiary) within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such reinvestment in Ad- ditional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Company that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 270 days of such 365th day; provided that, pending the final application of the amount of any such Net Available Cash in accordance with clause (i) or clause (ii) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise use such Net Available Cash in any manner not prohibited by this Indenture. (b) The amount of any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in the preceding paragraph will be deemed to constitute “Excess Proceeds” under this Indenture. On the 366th day after an Asset Disposition or the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds under this Indenture exceeds $15.0 million, the Company will within 10 Business Days be required to make an offer (“Asset Disposition Offer”) to all Holders of Notes issued under such indenture and, to the extent the Company elects, to all holders of other outstanding Pari Passu Indebted- ness, to purchase the maximum principal amount of Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes
![Page 73](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi073.jpg)
-68- in an amount equal to 100% of the principal amount of the Notes and Pari Passu Indebtedness, in each case, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in this Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, and, with respect to the Notes, in minimum denominations of $2,000 and in integral multiples of $1,000 in excess thereof. The Compa- ny will deliver notice of such Asset Disposition Offer electronically or by first-class mail, with a copy to the Trustee, to each Holder of Notes at the address of such Holder appearing in the security register or otherwise in accordance with the procedures of DTC, describing the transaction or transactions that constitute the Asset Disposition and of- fering to repurchase the Notes for the specified purchase price on the date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date such notice is delivered, pursuant to the procedures required by this Indenture and described in such notice. The Company may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to all Net Available Cash prior to the expiration of the relevant 365 days (or such longer period provided above) or with respect to any unapplied Excess Proceeds. (c) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for any purpose not prohibited in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness sur- rendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds, the Excess Proceeds shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggre- gate principal amount of tendered Notes and Pari Passu Indebtedness; provided that no Notes or other Pari Passu Indebtedness will be selected and purchased in an unauthorized denomination. Upon completion of any Asset Dis- position Offer, the amount of Excess Proceeds shall be reset at zero. Additionally, the Company may, at its option, make an Asset Disposition Offer using proceeds from any Asset Disposition at any time after the consummation of such Asset Disposition. Upon consummation or expiration of any Asset Disposition Offer, any remaining Net Available Cash shall not be deemed Excess Proceeds and the Company may use such Net Available Cash for any purpose not prohibited by the Indenture. (d) Notwithstanding any other provisions of this Section 3.5, (i) to the extent that any of or all the Net Available Cash of any Asset Disposition by a Foreign Subsidiary (a “Foreign Disposition”) is prohibited or delayed by applicable local law from being repatriated to the United States, the portion of such Net Available Cash so affected will not be required to be applied in compliance with this Section 3.5, and such amounts may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation to the United States (the Company hereby agreeing to cause the applicable Foreign Subsidiary to promptly take all commercially reasonable actions available under the applicable local law to permit such repatriation), and once such re- patriation of any such affected Net Available Cash is permitted under the applicable local law, such repatri- ation will be promptly effected and such repatriated Net Available Cash will be promptly (and in any event not later than three (3) Business Days after such repatriation) applied (net of additional Taxes payable or reserved against a result thereof) in compliance with this Section 3.5; and (ii) to the extent that the Company has determined in good faith that repatriation of any of or all the Net Available Cash of any Foreign Disposition would have an adverse Tax consequence (which for the avoidance of doubt, includes, but is not limited to, any repatriation whereby doing so the Company, any Restricted Subsidiary, or any of their respective affiliates and/or equity owners would incur a tax liability, including as a result of a dividend or deemed dividend, or a withholding tax, but taking into account any foreign tax credit or benefit received in connection with such repatriation) with respect to such Net Availa- ble Cash, the Net Available Cash so affected may be retained by the applicable Foreign Subsidiary. (e) To the extent that any portion of Net Available Cash payable in respect of the Notes is denomi- nated in a currency other than U.S. dollars, the amount thereof payable in respect of the Notes shall not exceed the net amount of funds in U.S. dollars that is actually received by the Company upon converting such portion into U.S. dollars. (f) For the purposes of Section 3.5(a)(2) hereof, the following will be deemed to be cash:
![Page 76](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi076.jpg)
-71- (2) in the event such Affiliate Transaction involves an aggregate value in excess of $20.0 million, the terms of such transaction have been approved by a majority of the members of the Board of Directors. Any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in clause (2) of this Sec- tion 3.8(a) if such Affiliate Transaction is approved by a majority of the Disinterested Directors, if any. (b) The provisions of clause (a) of this Section 3.8 above shall not apply to: (1) any Restricted Payment permitted to be made pursuant to Section 3.3, or any Permitted Investment; (2) any issuance or sale of Capital Stock, options, other equity-related interests or other secu- rities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, or entering into, or maintenance of, any employment, consulting, collective bargaining or benefit plan, pro- gram, agreement or arrangement, related trust or other similar agreement and other compensation arrange- ments, options, warrants or other rights to purchase Capital Stock of the Company, any Restricted Subsidi- ary or any Parent Entity, restricted stock plans, long-term incentive plans, stock appreciation rights plans, participation plans or similar employee benefits or consultants’ plans (including valuation, health, insur- ance, deferred compensation, severance, retirement, savings or similar plans, programs or arrangements) or indemnities provided on behalf of officers, employees, directors or consultants approved by the Board of Directors of the Company, in each case in the ordinary course of business or consistent with past practice; (3) any Management Advances and any waiver or transaction with respect thereto; (4) any transaction between or among the Company and any Restricted Subsidiary (or entity that becomes a Restricted Subsidiary as a result of such transaction), or between or among Restricted Sub- sidiaries; (5) the payment of compensation, reasonable fees and reimbursement of expenses to, and customary indemnities (including under customary insurance policies) and employee benefit and pension expenses provided on behalf of, directors, officers, consultants or employees of the Company or any Re- stricted Subsidiary (whether directly or indirectly and including through any Person owned or controlled by any of such directors, officers or employees); (6) the entry into and performance of obligations of the Company or any of its Restricted Subsidiaries under the terms of any transaction arising out of, and any payments pursuant to or for purposes of funding, any agreement or instrument in effect as of or on the Issue Date, as these agreements and in- struments may be amended, modified, supplemented, extended, renewed or refinanced from time to time in accordance with the other terms of this covenant or to the extent not more disadvantageous to the Holders in any material respect; (7) transactions with customers, clients, suppliers or purchasers or sellers of goods or ser- vices, in each case in the ordinary course of business or consistent with past practice, which are fair to the Company or the relevant Restricted Subsidiary in the reasonable determination of the Board of Directors or the senior management of the Company or the relevant Restricted Subsidiary, or are on terms no less favor- able than those that could reasonably have been obtained at such time from an unaffiliated party; (8) any transaction between or among the Company or any Restricted Subsidiary and any Af- filiate of the Company or an Associate or similar entity that would constitute an Affiliate Transaction solely because the Company or a Restricted Subsidiary owns an equity interest in or otherwise controls such Af- filiate, Associate or similar entity; (9) issuances or sales of Capital Stock (other than Disqualified Stock or Designated Preferred Stock) of the Company or options, warrants or other rights to acquire such Capital Stock and the granting
![Page 78](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi078.jpg)
-73- (1) that a Change of Control Offer is being made pursuant to this Section 3.9, and that all Notes properly tendered pursuant to such Change of Control Offer will be accepted for payment by the Company; (2) the purchase price and the purchase date, which will be no earlier than 30 days nor later than 60 days from the date such notice is delivered (the “Change of Control Payment Date”); (3) that any Note not properly tendered will remain outstanding and continue to accrue inter- est; (4) that unless the Company defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue interest, on the Change of Control Payment Date; (5) that Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender such Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of such Notes completed, to the Paying Agent specified in the notice at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment Date; (6) that Holders will be entitled to withdraw their tendered Notes and their election to require the Company to purchase such Notes; provided that the Paying Agent receives, not later than the close of business on the second Business Day prior to the expiration date of the Change of Control Offer, a tele- gram, facsimile transmission or letter setting forth the name of the Holder of the Notes, the principal amount of Notes tendered for purchase, and a statement that such Holder is withdrawing its tendered Notes and its election to have such Notes purchased; (7) that Holders whose Notes are being purchased only in part will be issued new Notes and such new Notes will be equal in principal amount to the unpurchased portion of the Notes surrendered. The unpurchased portion of the Notes must be equal to at least $2,000 or any integral multiple of $1,000 in ex- cess of $2,000; (8) if such notice is delivered prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control; and (9) the other instructions, as determined by the Company, consistent with this Section 3.9, that a Holder must follow. The Paying Agent will promptly deliver to each Holder of the Notes tendered the Change of Control Pay- ment for such Notes, and the Trustee will promptly authenticate and mail (or cause to be transferred by book-entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a minimum principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. The Company will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. If the Change of Control Payment Date is on or after an interest record date and on or before the related in- terest payment date, any accrued and unpaid interest will be paid on the relevant interest payment date to the Person in whose name a Note is registered at the close of business on such record date. (b) On the Change of Control Payment Date, the Company will, to the extent permitted by law, (1) accept for payment all Notes issued by it or portions thereof properly tendered pursuant to the Change of Control Offer,
![Page 80](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi080.jpg)
-75- a Form 8-K regarding the occurrence of any such events if the Company determines in its good faith judg- ment that such event that would otherwise be required to be disclosed is not material to the Holders of the Notes or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries taken as a whole or (ii) make available copies of any agreements, financial statements or other items that would be required to be filed as exhibits to a current report on Form 8-K except for (x) material Indebtedness and (y) historical and pro forma financial statements to the extent reasonably available: (A) the entry into or termination of material agreements; (B) significant acquisitions or dispositions; (C) the sale of equity securities; (D) bankruptcy; (E) cross-default under direct material financial obligations; (F) a change in the Company’s certifying independent auditor; (G) the appointment or departure of directors or executive officers; (H) non-reliance on previously issued financial statements; and (F) change of control transactions, in each case, in a manner that complies in all material respects with the requirements specified in such form, except as described above or below and subject to exceptions consistent with the presentation of information in the Offering Memorandum; provided, however, that the Company shall not be required (i) comply with Regulation G under the Exchange Act or Item 10(e) of Regulation S-K with respect to any “non-GAAP” financial information contained therein, (ii) provide any information that is not otherwise similar to information currently included in the Offering Memorandum or (iii) provide the type of information contemplated by Rule 3-10 of Regulation S-X with respect to separate financial statements for Guarantors or any financial statements for unconsolidated Subsidiaries or 50% or less owned Persons contemplated by Rule 3-09 of Regulation S-X or any schedules required by Regulation S-X, or in each case any successor provisions. In addition, notwithstanding the foregoing, the Company shall not be re- quired to (i) comply with Sections 302, 906 and 404 of the Xxxxxxxx-Xxxxx Act of 2002, as amended, or (ii) other- wise furnish any information, certificates or reports required by Items 307 or 308 of Regulation S-K. To the extent any such information is not so filed or furnished, as applicable, within the time periods specified above and such information is subsequently filed or furnished, as applicable, the Company will be deemed to have satisfied its obli- gations with respect thereto at such time and any Default with respect thereto shall be deemed to have been cured; provided that such cure shall not otherwise affect the rights of the Holders under Section 6.1 hereof if Holders of at least 30% in principal amount of the then total outstanding Notes have declared the principal, premium, if any, inter- est and any other monetary obligations on all the then outstanding Notes to be due and payable immediately and such declaration shall not have been rescinded or cancelled prior to such cure. In addition, to the extent not satisfied by the foregoing, the Company shall agree that, for so long as any Notes are outstanding, it shall furnish to Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pur- suant to Rule 144A(d)(4) under the Securities Act. (b) At any time that any of the Company’s Subsidiaries are Unrestricted Subsidiaries, then the annu- al and quarterly financial information required by the preceding paragraph will include a reasonably detailed presen- tation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” of the financial condition and results of operations of the Company and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Company.
![Page 90](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi090.jpg)
-85- (6) any Note Guarantee ceases to be in full force and effect, other than (x) in ac- cordance with the terms of this Indenture, (y) a Guarantor denies or disaffirms its obligations un- der its Note Guarantee, other than in accordance with the terms of this Indenture or upon release of such Note Guarantee in accordance with this Indenture or (z) in connection with the bankruptcy of a Guarantor, so long as the aggregate assets of such Guarantor and any other Guarantor whose Note Guarantee ceased or ceases to be in full force as a result of a bankruptcy as less than $2.0 million; (7) the Company or any Guarantor that is Significant Subsidiary or any group of Guarantors that together (as of the latest audited consolidated financial statements of the Company and its Restricted Subsidiaries), would constitute a Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law: (A) commences a voluntary case or proceeding; (B) consents to the entry of an order for relief against it in an involuntary case or proceeding; (C) consents to the appointment of a Custodian of it or for substantially all of its property; (D) makes a general assignment for the benefit of its creditors; (E) consents to or acquiesces in the institution of a bankruptcy or an insol- vency proceeding against it; or (F) takes any comparable action under any foreign laws relating to insol- vency; (8) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that: (A) is for relief against the Company or any Guarantor that is a Significant Subsidiary or any group of Guarantors that, taken together as of the latest audited consol- idated financial statements for the Company, would constitute a Significant Subsidiary, in an involuntary case; (B) appoints a Custodian of the Company, any Guarantor that is a Signifi- cant Subsidiary or any group of Guarantors that, taken together as of the latest audited consolidated financial statements for the Company, would constitute a Significant Sub- sidiary, for substantially all of its property; (C) orders the winding up or liquidation of the Company, any Guarantor that is a Significant Subsidiary or any group of Guarantors that, taken together as of the latest audited consolidated financial statements for the Company, would constitute a Sig- nificant Subsidiary; or (D) or any similar relief is granted under any foreign laws and the order, decree or relief remains unstayed and in effect for 60 consecutive days. (b) If a Default for a failure to report or failure to deliver a required certificate in connection with an- other default (the “Initial Default”) occurs, then at the time such Initial Default is cured, such Default for a failure to report or failure to deliver a required certificate in connection with another default that resulted solely because of that Initial Default shall also be cured without any further action.
![Page 102](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi102.jpg)
-97- SECTION 9.2. With Consent of Holders. Except as provided below in this Section 9.2, the Company, the Guarantors and the Trustee may amend or supplement this Indenture, any Guarantee and the Notes issued here- under with the consent of the Holders of at least a majority in aggregate principal amount of the Notes then out- standing and issued under this Indenture, including, without limitation, consents obtained in connection with a pur- chase of, or tender offer or exchange offer for, Notes, and, subject to Sections 6.4 and 6.7 hereof, any existing De- fault or Event of Default (other than a Default or Event of Default in the payment of the principal of, premium, if any, or interest on the Notes, except a payment default resulting from an acceleration that has been rescinded) or compliance with any provision of this Indenture, the Notes and the Guarantees may be waived with the consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes issued under this Indenture (including consents obtained in connection with a purchase of or tender offer or exchange offer for Notes). Sec- tion 2.12 hereof and Section 12.4 hereof shall determine which Notes are considered to be “outstanding” for the purposes of this Section 9.2. Upon the request of the Company accompanied by a resolution of its Board of Directors authorizing the ex- ecution of any such amended or supplemental indenture, and upon the filing with the Trustee of evidence of the con- sent of the Holders of Notes as aforesaid, and upon receipt by the Trustee of the documents described in Sections 9.6 and 12.4 hereof, the Trustee will join with the Company and the Guarantors in the execution of such amended or supplemental indenture unless such amended or supplemental indenture affects the Trustee’s own rights, duties, lia- bilities or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but will not be obligated to, enter into such amended or supplemental Indenture. Without the consent of each Holder of Notes affected, an amendment, supplement or waiver may not, with respect to any Notes issued thereunder and held by a nonconsenting Holder: (1) reduce the principal amount of such Notes whose Holders must consent to an amend- ment; (2) reduce the stated rate of or extend the stated time for payment of interest on any such Note (other than provisions relating to Section 3.5 and Section 3.9); (3) reduce the principal of or extend the Stated Maturity of any such Note (other than provi- sions relating to Section 3.5 and Section 3.9); (4) reduce the premium payable upon the redemption of any such Note or change the time at which any such Note may be redeemed, in each case as set forth in Section 5.7; (5) make any such Note payable in currency other than that stated in such Note; (6) impair the right of any Holder to receive payment of principal of and interest on such Holder’s Notes on or after the due dates therefor or to institute suit for the enforcement of any such pay- ment on or with respect to such Holder’s Notes; (7) waive a Default or Event of Default with respect to the nonpayment of principal, premi- um or interest (except pursuant to a rescission of acceleration of the Notes by the Holders of at least a ma- jority in aggregate principal amount of such Notes and a waiver of the payment default that resulted from such acceleration); (8) release any Guarantor from any of its obligations under its Note Guarantee or this Inden- ture, except in accordance with the terms of this Indenture; or (9) make any change in the amendment or waiver provisions which require the Holders’ con- sent described in this Section 9.2. It shall not be necessary for the consent of the Holders under this Indenture to approve the particular form of any proposed amendment, supplement or waiver, but it shall be sufficient if such consent approves the substance
![Page 104](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi104.jpg)
-99- terest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the obligations under Section 7.7), (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor agrees that the Guaranteed Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guaranteed Obligations, in which case the obligations of the Guarantors under the Guarantees will rank senior in right of payment to such other Indebtedness. To evidence its Guarantee set forth in this Section 10.1, each Guarantor hereby agrees that this Indenture shall be executed on behalf of such Guarantor by an Officer of such Guarantor. Each Guarantor hereby agrees that its Guarantee set forth in this Section 10.1 shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Guarantee on the Notes. If an Officer whose signature is on this Indenture no longer holds that office at the time the Trustee authen- ticates the Note, the Guarantee shall be valid nevertheless. Each Guarantor further agrees (to the extent permitted by law) that the Guaranteed Obligations may be ex- tended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Obligation. Each Guarantor waives presentation to, demand of payment from and protest to the issuer of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guaranteed Obligations. Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guaranteed Obligations. Except as set forth in Section 10.2, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the Guaranteed Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this In- denture, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guaranteed Obligations; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Company; (g) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations, or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a dis- charge of such Guarantor as a matter of law or equity. Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guaranteed Obligations or such Guarantor is released from its Guarantee in compliance with Section 10.2, Article VIII or Article XI. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of, premium, if any, inter- est on any of the Guaranteed Obligations is rescinded or must otherwise be restored by any Holder upon the bank- ruptcy or reorganization of the Company or otherwise. In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guaranteed Obli- gations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise,
![Page 112](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi112.jpg)
[Signature Page to the Indenture] WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee By: /s/ Xxxxxx X. X’Xxxxxxx Name: Xxxxxx X. X’Xxxxxxx Title: Vice President
![Page 113](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi113.jpg)
SCHEDULE I Guarantors 1. Bryton Acquisition Company, LLC, a Delaware limited liability company 2. GAP Broadcasting Burlington License, LLC, a Delaware limited liability company 3. GAP Broadcasting Burlington, LLC, a Delaware limited liability company 4. GAP Broadcasting Midland-Odessa License, LLC, a Delaware limited liability company 5. GAP Broadcasting Midland-Odessa, LLC, a Delaware limited liability company 6. Xxxx Acquisition Company, LLC, a Delaware limited liability company (f/k/a Peak II Holding LLC) 7. Xxxx Intermediate Holding, LLC, a Delaware limited liability company (f/k/a Peak II In- termediate Holding LLC) 8. Millennium Atlantic City II Holdco, LLC, a Delaware limited liability company 9. Regent Licensee of Chico, Inc., a Delaware corporation 10. Regent Licensee of Erie, Inc., a Delaware corporation 11. Regent Licensee of Flagstaff, Inc., a Delaware corporation 12. Regent Licensee of Kingman, Inc., a Delaware corporation 13. Regent Licensee of Lake Tahoe, Inc., a Delaware corporation 14. Regent Licensee of Lexington, Inc., a Delaware corporation 15. Regent Licensee of Palmdale, Inc., a Delaware corporation 16. Regent Licensee of Xxxxxxx, Inc., a Delaware corporation 17. Regent Licensee of San Diego, Inc., a Delaware corporation 18. Regent Licensee of South Carolina, Inc., a Delaware corporation 19. Regent Licensee of Watertown, Inc., a Delaware corporation 20. Special Events Management, LLC, a Delaware limited liability company 21. Townsquare Active Events, LLC, a Delaware limited liability company 22. Townsquare Beverage, LLC, a Delaware limited liability company 23. Townsquare Commerce, LLC, a Delaware limited liability company (f/k/a Seize the Deal, LLC) 24. Townsquare Experimental, LLC, a Delaware limited liability company 25. Townsquare Expos, LLC, a Delaware limited liability company 26. Townsquare Interactive, LLC, a Delaware limited liability company 27. Townsquare Lifestyle Events, LLC, a Delaware limited liability company 28. Townsquare Live Events Colorado, LLC, a Delaware limited liability company 29. Townsquare Live Events International, LLC, a Delaware limited liability company 30. Townsquare Live Events Minnesota, LLC, a Delaware limited liability company 31. Townsquare Live Events Montana, LLC, a Delaware limited liability company 32. Townsquare Live Events Texas, LLC, a Delaware limited liability company 33. Townsquare Live Events Wisconsin, LLC, a Delaware limited liability company 34. Townsquare Live Events, LLC, a Delaware limited liability company 35. Townsquare Live Productions, LLC, a Delaware limited liability company 36. Townsquare Management Company, LLC, a Delaware limited liability company 37. Townsquare Media 2010, Inc., a Delaware corporation 38. Townsquare Media Abilene License, LLC, a Delaware limited liability company
![Page 114](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi114.jpg)
I-2 39. Townsquare Media Abilene, LLC, a Delaware limited liability company 40. Townsquare Media Acquisition III, LLC, a Delaware limited liability company 41. Townsquare Media Acquisition IV, LLC, a Delaware limited liability company 42. Townsquare Media Amarillo License, LLC, a Delaware limited liability company 43. Townsquare Media Amarillo, LLC, a Delaware limited liability company 44. Townsquare Media Atlantic City II License, LLC, a Delaware limited liability company 45. Townsquare Media Atlantic City II, LLC, a Delaware limited liability company 46. Townsquare Media Atlantic City III Holdco, LLC, a Delaware limited liability company 47. Townsquare Media Atlantic City III License, LLC, a Delaware limited liability company 48. Townsquare Media Atlantic City III, LLC, a Delaware limited liability company 49. Townsquare Media Atlantic City License, LLC, a Delaware limited liability company 50. Townsquare Media Atlantic City, LLC, a Delaware limited liability company 51. Townsquare Media Augusta Waterville License, LLC, a Delaware limited liability com- pany 52. Townsquare Media Augusta Waterville, LLC, a Delaware limited liability company 53. Townsquare Media Bangor License, LLC, a Delaware limited liability company 54. Townsquare Media Bangor, LLC, a Delaware limited liability company 55. Townsquare Media Battle Creek License LLC, a Delaware limited liability company 56. Townsquare Media Battle Creek LLC, a Delaware limited liability company 57. Townsquare Media Xxxxxxxx License, LLC, a Delaware limited liability company 58. Townsquare Media Xxxxxxxx, LLC, a Delaware limited liability company 59. Townsquare Media Binghampton License, LLC, a Delaware limited liability company 60. Townsquare Media Binghampton, LLC, a Delaware limited liability company 61. Townsquare Media Bismarck License, LLC, a Delaware limited liability company 62. Townsquare Media Bismarck, LLC, a Delaware limited liability company 63. Townsquare Media Boise License, LLC, a Delaware limited liability company 64. Townsquare Media Boise, LLC, a Delaware limited liability company (f/k/a/ Peak Broadcasting of Boise, LLC) 65. Townsquare Media Bozeman License, LLC, a Delaware limited liability company 66. Townsquare Media Bozeman, LLC, a Delaware limited liability company 67. Townsquare Media Broadcasting, LLC, a Delaware limited liability company 68. Townsquare Media Casper License, LLC, a Delaware limited liability company 69. Townsquare Media Casper, LLC, a Delaware limited liability company 70. Townsquare Media Cedar Rapids License LLC, a Delaware limited liability company 71. Townsquare Media Cedar Rapids LLC, a Delaware limited liability company 72. Townsquare Media Cheyenne License, LLC, a Delaware limited liability company 73. Townsquare Media Cheyenne, LLC, a Delaware limited liability company 74. Townsquare Media Danbury License LLC, a Delaware limited liability company 75. Townsquare Media Danbury LLC, a Delaware limited liability company 76. Townsquare Media Dubuque License, LLC, a Delaware limited liability company 77. Townsquare Media Dubuque, LLC, a Delaware limited liability company 78. Townsquare Media Duluth License, LLC, a Delaware limited liability company 79. Townsquare Media Duluth, LLC, a Delaware limited liability company 80. Townsquare Media Faribault License LLC, a Delaware limited liability company 81. Townsquare Media Faribault LLC, a Delaware limited liability company 82. Townsquare Media Grand Junction License, LLC, a Delaware limited liability company
![Page 115](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi115.jpg)
I-3 83. Townsquare Media Grand Junction, LLC, a Delaware limited liability company 84. Townsquare Media Kalamazoo License LLC, a Delaware limited liability company 85. Townsquare Media Kalamazoo LLC, a Delaware limited liability company 86. Townsquare Media Killeen-Temple License, LLC, a Delaware limited liability company 87. Townsquare Media Lake Xxxxxxx License, LLC, a Delaware limited liability company 88. Townsquare Media Lake Xxxxxxx, LLC, a Delaware limited liability company 89. Townsquare Media Lansing License LLC, a Delaware limited liability company 90. Townsquare Media Lansing LLC, a Delaware limited liability company 91. Townsquare Media Laramie License, LLC, a Delaware limited liability company 92. Townsquare Media Laramie, LLC, a Delaware limited liability company 93. Townsquare Media Xxxxxx License, LLC, a Delaware limited liability company 94. Townsquare Media Xxxxxx, LLC, a Delaware limited liability company 95. Townsquare Media Licensee of Albany and Lafayette, Inc., a Delaware corporation 96. Townsquare Media Licensee of Peoria, Inc., a Delaware corporation 97. Townsquare Media Licensee of St. Cloud, Inc., a Delaware corporation 98. Townsquare Media Licensee of Utica/Rome, Inc., a Delaware corporation 99. Townsquare Media Lubbock License, LLC, a Delaware limited liability company 100. Townsquare Media Lubbock, LLC, a Delaware limited liability company 101. Townsquare Media Lufkin License, LLC, a Delaware limited liability company 102. Townsquare Media Lufkin, LLC, a Delaware limited liability company 103. Townsquare Media Missoula License, LLC, a Delaware limited liability company 104. Townsquare Media Missoula, LLC, a Delaware limited liability company 105. Townsquare Media Monmouth-Ocean License, LLC, a Delaware limited liability com- pany 106. Townsquare Media Monmouth-Ocean, LLC, a Delaware limited liability company 107. Townsquare Media New Bedford License, LLC, a Delaware limited liability company 108. Townsquare Media New Bedford, LLC, a Delaware limited liability company 109. Townsquare Media Odessa-Midland II License, LLC, a Delaware limited liability com- pany 110. Townsquare Media Odessa-Midland II, LLC, a Delaware limited liability company 111. Townsquare Media Odessa-Midland License, LLC, a Delaware limited liability compa- ny 112. Townsquare Media Odessa-Midland, LLC, a Delaware limited liability company 113. Townsquare Media of Albany and Lafayette, Inc., a Delaware corporation 114. Townsquare Media of Albany, Inc., a Delaware corporation 115. Townsquare Media of Buffalo, Inc., a Delaware corporation 116. Townsquare Media of El Paso, Inc., a Delaware corporation 117. Townsquare Media of Evansville/Owensboro, Inc., a Delaware corporation 118. Townsquare Media of Flint, Inc., a Delaware corporation 119. Townsquare Media of Ft. Xxxxxxx and Grand Rapids, LLC, a California limited liability company 120. Townsquare Media of Ft. Xxxxxxx, Inc., a Delaware corporation 121. Townsquare Media of Grand Rapids, Inc., a Delaware corporation 122. Townsquare Media of Killeen-Temple, Inc., a Delaware corporation (f/k/a Townsquare Media of Bloomington, Inc.) 123. Townsquare Media of Lafayette, LLC, a Delaware limited liability company
![Page 116](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi116.jpg)
I-4 124. Townsquare Media of Midwest, LLC, a Delaware limited liability company 125. Townsquare Media of Presque Isle, Inc., a Delaware corporation (f/k/a Townsquare Me- dia of Peoria, Inc.) 126. Townsquare Media of St. Cloud, Inc., a Delaware corporation 127. Townsquare Media of Utica/Rome, Inc., a Delaware corporation 128. Townsquare Media Oneonta License, LLC, a Delaware limited liability company 129. Townsquare Media Oneonta, LLC, a Delaware limited liability company 130. Townsquare Media Pocatello License, LLC, a Delaware limited liability company 131. Townsquare Media Pocatello, LLC, a Delaware limited liability company 132. Townsquare Media Portland License LLC, a Delaware limited liability company 133. Townsquare Media Portland LLC, a Delaware limited liability company 134. Townsquare Media Portsmouth License LLC, a Delaware limited liability company 135. Townsquare Media Portsmouth LLC, a Delaware limited liability company 136. Townsquare Media Poughkeepsie License, LLC, a Delaware limited liability company 137. Townsquare Media Poughkeepsie, LLC, a Delaware limited liability company (f/k/a Peak Broadcasting of Fresno, LLC) 138. Townsquare Media Presque Isle License, LLC, a Delaware limited liability company 139. Townsquare Media Quad Cities License LLC, a Delaware limited liability company 140. Townsquare Media Quad Cities LLC, a Delaware limited liability company 141. Townsquare Media Quincy-Hannibal License, LLC, a Delaware limited liability compa- ny 142. Townsquare Media Quincy-Hannibal, LLC, a Delaware limited liability company 143. Townsquare Media Rochester License LLC, a Delaware limited liability company 144. Townsquare Media Rochester LLC, a Delaware limited liability company 145. Townsquare Media Rockford License LLC, a Delaware limited liability company 146. Townsquare Media Rockford LLC, a Delaware limited liability company 147. Townsquare Media San Xxxxxx License, LLC, a Delaware limited liability company 148. Townsquare Media San Xxxxxx, LLC, a Delaware limited liability company 149. Townsquare Media Sedalia License, LLC, a Delaware limited liability company 150. Townsquare Media Sedalia, LLC, a Delaware limited liability company 151. Townsquare Media Shelby License, LLC, a Delaware limited liability company 152. Townsquare Media Shelby, LLC, a Delaware limited liability company 153. Townsquare Media Shreveport License, LLC, a Delaware limited liability company 154. Townsquare Media Shreveport, LLC, a Delaware limited liability company 155. Townsquare Media Sioux Falls License, LLC, a Delaware limited liability company 156. Townsquare Media Sioux Falls, LLC, a Delaware limited liability company 157. Townsquare Media Texarkana License, LLC, a Delaware limited liability company 158. Townsquare Media Texarkana, LLC, a Delaware limited liability company 159. Townsquare Media Trenton License, LLC, a Delaware limited liability company 160. Townsquare Media Trenton, LLC, a Delaware limited liability company 161. Townsquare Media Tri-Cities License, LLC, a Delaware limited liability company 162. Townsquare Media Tri-Cities, LLC, a Delaware limited liability company 163. Townsquare Media Tuscaloosa License, LLC, a Delaware limited liability company 164. Townsquare Media Tuscaloosa, LLC, a Delaware limited liability company 165. Townsquare Media Twin Falls License, LLC, a Delaware limited liability company 166. Townsquare Media Twin Falls, LLC, a Delaware limited liability company
![Page 117](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi117.jpg)
I-5 167. Townsquare Media Tyler License, LLC, a Delaware limited liability company 168. Townsquare Media Tyler, LLC, a Delaware limited liability company 169. Townsquare Media Victoria License, LLC, a Delaware limited liability company 170. Townsquare Media Victoria, LLC, a Delaware limited liability company 171. Townsquare Media Waterloo License LLC, a Delaware limited liability company 172. Townsquare Media Waterloo LLC, a Delaware limited liability company 173. Townsquare Media West Central Holdings, LLC, a Delaware limited liability company 174. Townsquare Media West Central Intermediate Holdings, LLC, a Delaware limited liabil- ity company 175. Townsquare Media West Central Radio Broadcasting, LLC, a Delaware limited liability company 176. Townsquare Media Wichita Falls License, LLC, a Delaware limited liability company 177. Townsquare Media Wichita Falls, LLC, a Delaware limited liability company 178. Townsquare Media Yakima License, LLC, a Delaware limited liability company 179. Townsquare Media Yakima, LLC, a Delaware limited liability company 180. Townsquare MMN, LLC, a Delaware limited liability company 181. Townsquare New Jersey Holdco, LLC, a Delaware limited liability company 182. Townsquare Next, LLC, a Delaware limited liability company 183. Townsquare Radio Holdings, LLC, a Delaware limited liability company 184. Townsquare Radio, Inc., a Delaware corporation 185. Townsquare Radio, LLC, a Delaware limited liability company 186. Xxxxx Acquisition Company LLC, a Delaware limited liability company
![Page 118](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi118.jpg)
A-1 EXHIBIT A [FORM OF FACE OF GLOBAL RESTRICTED NOTE] [Applicable Restricted Notes Legend] [Depository Legend, if applicable] [OID Legend, if applicable] [Temporary Regulation S Legend, if applicable] No. [___] Principal Amount $[___________] [as revised by the Sched- ule of Increases and Decreases in Global Note attached here- to]1 CUSIP NO. _________________________ TOWNSQUARE MEDIA, INC. 6.500% Senior Notes due 2023 Townsquare Media, Inc., a Delaware corporation (“Company”), promises to pay to [Cede & Co.],2 or its registered assigns, the principal sum of _______________ Dollars, [as revised by the Schedule of Increases and De- creases in Global Note attached hereto],3 on April 1, 2023. Interest Payment Dates: April 1 and October 1, commencing on October 1, 2015 Record Dates: March 15 and September 15 Additional provisions of this Note are set forth on the other side of this Note. 1 Insert in Global Notes only. 2 Insert in Global Notes only. 3 Insert in Global Notes only.
![Page 120](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi120.jpg)
A-3 TRUSTEE CERTIFICATE OF AUTHENTICATION This Note is one of the 6.500% Senior Notes due 2023 referred to in the within-mentioned Indenture. WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee By: Name: Title: Dated:
![Page 121](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi121.jpg)
A-4 [FORM OF REVERSE SIDE OF NOTE] TOWNSQUARE MEDIA, INC. 6.500% SENIOR NOTES DUE 2023 Capitalized terms used herein and not defined herein have the meanings ascribed thereto in the Indenture. 1. Interest The Company promises to pay interest on the principal amount of this Note at 6.500% per annum from April 1, 2015 until maturity. The Company will pay interest semi-annually in arrears every April 1 and October 1 of each year, or if any such day is not a Business Day, on the next succeeding Business Day (each, an “Interest Pay- ment Date”). Interest on the Notes shall accrue from the most recent date to which interest has been paid or, if no interest has been paid, from the date of issuance; provided, that the first Interest Payment Date shall be October 1, 2015. The Company shall pay interest on overdue principal at the rate specified herein, and it shall pay interest (in- cluding post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest (without regard to any applicable grace period) at the same rate to the extent lawful. Interest on the Notes will be computed on the basis of a 360-day year comprised of twelve 30-day months. [Until this Regulation S Temporary Global Note is exchanged for one or more Regulation S Permanent Global Notes, the Holder hereof shall not be entitled to receive payments of interest hereon; until so exchanged in full, this Regulation S Temporary Global Note shall in all other respects be entitled to the same benefits as other Notes under the Indenture.] 2. Method of Payment By no later than 11:00 a.m. (New York City time) on the date on which any principal of, premium, if any, interest, on any Note is due and payable, the Company shall deposit with the Paying Agent a sum sufficient in im- mediately available funds to pay such principal, premium, interest when due. Interest on any Note which is payable, and is timely paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name such Note (or one or more Predecessor Notes) is registered at the close of business on the preceding March 15 and September 15 at the office or agency of the Company maintained for such purpose pursuant to Section 2.3 of the Indenture. The principal of (and premium, if any) and interest on the Notes shall be payable at the office or agency of Paying Agent or Registrar designated by the Company maintained for such purpose (which shall initially be the office of the Trustee maintained for such purpose), or at such other office or agency of the Company as may be maintained for such purpose pursuant to Section 2.3 of the Indenture; provided, however, that, at the option of the Paying Agent, each installment of interest may be paid by (i) check mailed to addresses of the Persons entitled there- to as such addresses shall appear on the Notes Register or (ii) wire transfer to an account located in the United States maintained by the payee, subject to the last sentence of this paragraph. Payments in respect of Notes represented by a Global Note (including principal, premium, if any, interest) will be made by wire transfer of immediately available funds to the accounts specified by The Depository Trust Company or any successor depository. Payments in respect of Notes represented by Definitive Notes (including principal, premium, if any, interest) held by a Holder of at least $1,000,000 aggregate principal amount of Notes represented by Definitive Notes will be made in accordance with the Notes Register, or by wire transfer to a U.S. dollar account maintained by the payee with a bank in the United States if such Holder elects payment by wire transfer by giving written notice to the Trustee or the Paying Agent to such effect designating such account no later than 15 days immediately preceding the relevant due date for payment (or such other date as the Trustee may accept in its discretion). If an Interest Payment Date is a Legal Holiday, payment shall be made on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening period. If a regular record date is a Legal Holiday, the record date shall not be affected. 3. Paying Agent and Registrar The Company initially appoints Wilmington Trust, National Association (the “Trustee”) as Registrar and Paying Agent for the Notes. The Company may change any Registrar or Paying Agent without prior notice to the Holders. The Company or any Guarantor may act as Paying Agent, Registrar or transfer agent.
![Page 122](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi122.jpg)
A-5 4. Indenture The Company issued the Notes under an Indenture dated as of April 1, 2015 (as it may be amended or sup- plemented from time to time in accordance with the terms thereof, the “Indenture”), among the Company, the guar- antors named therein and the Trustee. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C. Sections 77aaa-77bbbb) as in effect on the date of the Indenture (the “Act”). The Notes are subject to all terms and provisions of the Indenture, and Holders are referred to the Indenture and the Act for a statement of those terms. The Notes are senior obligations of the Company. The aggregate principal amount of Notes that may be authenticated and delivered under the Indenture is unlimited. This Note is one of the 6.500% Senior Notes due 2023 referred to in the Indenture. The Notes include (i) $300,000,000 principal amount of the Company’s 6.500% Senior Notes due 2023 issued under the Indenture on April 1, 2015 (the “Initial Notes”) and (ii) if and when issued, addi- tional Notes that may be issued from time to time under the Indenture subsequent to April 1, 2015 (the “Additional Notes”) as provided in Section 2.1(a) of the Indenture. The Initial Notes and the Additional Notes shall be consid- ered collectively as a single class for all purposes of the Indenture; provided that the Additional Notes will not be issued with the same CUSIP as the existing Notes unless such Additional Notes are fungible with the existing Notes for U.S. federal income tax purposes. The Indenture imposes certain limitations on the incurrence of indebtedness, the making of restricted payments, the sale of assets, the incurrence of certain liens, the making of payments for consents, the entering into of agreements that restrict distribution from restricted subsidiaries and the consummation of mergers and consolidations. The Indenture also imposes requirements with respect to the provision of financial information and the provision of guarantees of the Notes by certain subsidiaries. 5. [Reserved] 6. Guarantees To guarantee the due and punctual payment of the principal, premium, if any, interest (including post-filing or post-petition interest in any proceeding under Bankruptcy Law) on the Notes and all other amounts payable by the Company under the Indenture and the Notes when and as the same shall be due and payable, whether at maturi- ty, by acceleration or otherwise, according to the terms of the Notes and the Indenture, the Guarantor will uncondi- tionally guarantee (and future guarantors, jointly and severally with the Guarantor, will fully and unconditionally Guarantee) such obligations on a senior basis pursuant to the terms of the Indenture. 7. Redemption (a) At any time prior to April 1, 2018, the Company may redeem the Notes in whole or in part, at its option, upon not less than 30 nor more than 60 days’ prior notice, with a copy to the Trustee, to each Holder of Notes to the address of such Holder appearing in the Notes Register, at a redemption price (expressed as percentages of principal amount of the Notes to be redeemed) equal to 100% of the principal amount of Notes redeemed plus the relevant Applicable Premium as of, and accrued and unpaid interest, to but excluding the date of redemption (the “Redemption Date”), subject to the rights of holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date. (b) At any time and from time to time prior to April 1, 2018, the Company may, at its option, on one or more occasions, upon not less than 30 nor more than 60 days’ prior notice, with a copy to the Trustee, to each Holder of Notes to the address of such Holder appearing in the Notes Register, redeem up to 40% of the original aggregate principal amount of Notes issued under this Indenture at a redemption price (expressed as percentages of principal amount of the Notes to be redeemed) equal to 106.500% of the aggregate principal amount thereof, plus accrued and unpaid interest, thereon, if any, to but excluding the applicable Redemption Date, subject to the right of Holders of record of the Notes on the relevant record date to receive interest due on the relevant interest payment date, with the net cash proceeds received by the Company of one or more Equity Offerings of the Company; provid- ed that not less than 60% of the original aggregate principal amount of Notes initially issued under the Indenture remains outstanding immediately after the occurrence of each such redemption (excluding Notes held by the Com- pany or any of its Restricted Subsidiaries); provided further that each such redemption occurs not later than
![Page 126](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi126.jpg)
A-9 ASSIGNMENT FORM To assign this Note, fill in the form below: I or we assign and transfer this Note to: (Print or type assignee’s name, address and zip code) (Insert assignee’s social security or tax I.D. No.) and irrevocably appoint ___________ agent to transfer this Note on the books of the Company. The agent may sub- stitute another to act for him. Date: Your Signature: Signature Guarantee: (Signature must be guaranteed) Sign exactly as your name appears on the other side of this Note. The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to Exchange Act Rule 17Ad-15. The undersigned hereby certifies that it is / is not an Affiliate of the Company and that, to its knowledge, the proposed transferee is / is not an Affiliate of the Company. In connection with any transfer or exchange of any of the Notes evidenced by this certificate occurring pri- or to the date that is one year after the later of the date of original issuance of such Notes and the last date, if any, on which such Notes were owned by the Company or any Affiliate of the Company, the undersigned confirms that such Notes are being: CHECK ONE BOX BELOW: (1) acquired for the undersigned’s own account, without transfer; or (2) transferred to the Company; or (3) transferred pursuant to and in compliance with Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”); or (4) transferred pursuant to an effective registration statement under the Securities Act; or (5) transferred pursuant to and in compliance with Regulation S under the Securities Act; or (6) transferred to an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act) or an “accredited investor” (as defined in Rule 501(a)(4) under the Securities Act), that has furnished to the Trustee a signed letter containing cer- tain representations and agreements (the form of which letter appears as Section 2.8 or 2.10 of the Indenture, respectively); or
![Page 127](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi127.jpg)
A-10 (7) transferred pursuant to another available exemption from the registration requirements of the Securities Act of 1933, as amended. Unless one of the boxes is checked, the Trustee will refuse to register any of the Notes evidenced by this certificate in the name of any person other than the registered Holder thereof; provided, however, that if box (5), (6) or (7) is checked, the Company may require, prior to registering any such transfer of the Notes, in its sole discretion, such legal opinions, certifications and other information as the Company may reasonably request to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act of 1933, as amended, such as the exemption provided by Rule 144 under such Act. Signature Signature Guarantee: (Signature must be guaranteed) Signature The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to Exchange Act Rule 17Ad-15. TO BE COMPLETED BY PURCHASER IF BOX (1) OR (3) ABOVE IS CHECKED. The undersigned represents and warrants that it is purchasing this Note for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a “qualified institu- tional buyer” within the meaning of Rule 144A under the Securities Act of 1933, as amended, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Company as the undersigned has requested pursuant to Rule 144A or has determined not to request such infor- mation 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:
![Page 128](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi128.jpg)
A-11 [TO BE ATTACHED TO GLOBAL NOTES] SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTES The following increases or decreases in this Global Note have been made: Date of Exchange Amount of decrease in Principal Amount of this Global Note Amount of increase in Principal Amount of this Global Note Principal Amount of this Global Note following such de- crease or increase Signature of author- ized signatory of Trustee or Notes Custodian
![Page 129](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi129.jpg)
A-12 OPTION OF HOLDER TO ELECT PURCHASE If you elect to have this Note purchased by the Company pursuant to Section 3.5 or 3.9 of the Indenture, check either box: Section 3.5 Section 3.9 If you want to elect to have only part of this Note purchased by the Company pursuant to Section 3.5 or 3.9 of the Indenture, state the amount in principal amount (must be in denominations of $2,000 or an integral multiple of $1,000 in excess thereof): $___________________________________ and specify the denomination or denomina- tions (which shall not be less than the minimum authorized denomination) of the Notes to be issued to the Holder for the portion of the within Note not being repurchased (in the absence of any such specification, one such Note will be issued for the portion not being repurchased): _________________. Date: __________ Your Signature ____________________________________________________ (Sign exactly as your name appears on the other side of the Note) Signature Guarantee: _______________________________________________________________ (Signature must be guaranteed) The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to Exchange Act Rule 17Ad-15.
![Page 134](https://www.sec.gov/Archives/edgar/data/1499832/000149983215000028/tsq8kfilingindentureexhi134.jpg)
[Signature Page to Supplemental Indenture] WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee By: Name: Title: